Moore v. Sanders

• Decision Date: 14 March 1990
• Docket Number: No. 07-CA-58591,07-CA-58591
• Citation: 558 So.2d 1383
• Parties: Robert MOORE v. Alix H. SANDERS, et al.
• Court: Mississippi Supreme Court

Page 1383

558 So.2d 1383

Robert MOORE v. Alix H. SANDERS, et al.

No. 07-CA-58591.

Supreme Court of Mississippi.

March 14, 1990.

Willie J. Perkins, Sr., Greenwood, for appellant.

James W. Burgoon, Jr., Fraiser & Burgoon, Greenwood, for appellees.

En Banc.

BLASS, Justice, for the Court:

I.

Appellant Robert E. Moore was elected to the County Board of Supervisors from District 2, Leflore County, Mississippi on April 15, 1986, in a special election held under the federal court ordered supervisor redistricting plan in James Moore, et al vs. Leflore County, Miss. et al, No. GC83-249-WK-O, N.D.Miss. A complaint was filed with the Board of Supervisors on December 1, 1986, by the Election Commissioner of District 2, alleging that Moore had moved out of District 2.

On January 20, 1987, Moore instituted suit in the U.S. District Court for the Northern District of Mississippi, in Cause No. GC87-7-S-O, for injunctive relief to prohibit the Board of Supervisors from acting on the complaint. The District Court issued a Temporary Restraining Order, on January 20, 1987. After a hearing, before Honorable L.T. Senter, the District Court issued a Memorandum Opinion and Order, on March 4, 1987, dismissing Moore's complaint under Section 5 of the Voting Rights Act, 42 U.S.C. Sec. 1973c; and abstaining from exercising jurisdiction over the issue of the removal from office under the authority of Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).

At a regular meeting on March 16, 1987, the Board of Supervisors considered the complaint; conducted a full evidentiary hearing, at which Moore was represented by counsel; ruled that Moore was no longer a resident of District 2; and declared the office vacant. The proceedings were recorded. Based on the evidence presented at this hearing, the Board found that Moore had removed himself from District 2 and established his residence at 2201 West Taft St. Greenwood, MS., a residence outside of District 2.

Moore filed a complaint for injunctive relief with the Chancery Court of Leflore County on March 20, 1987. The petition was denied after a hearing on March 25, 1987. Moore filed an application to certify an interlocutory appeal on March 27, 1987, which was denied by the Chancery Court, on March 30, 1987. This ruling was appealed to the Mississippi Supreme Court and denied without prejudice on April 9, 1987. The Chancery Court's final order denying Moore's request for injunctive relief was filed on July 16, 1987. From this decision Moore appeals assigning the following errors:

1. That the trial court erred in its decision that the Defendants Leflore County Board of Supervisors and Officials had authority pursuant to Section 25-1-59 of Miss.Code Annotated (1972), to make a factual determination as to the residency of a board member and to order the office vacant;

2. That the trial court erred in its refusal to grant a preliminary injunction in favor of the appellant; and

3. That the trial court erred in its exclusion of certain evidence tendered by the testimony of Mr. Robert Walker and Mr. Bennie Thompson and the testimony of adverse witness, Defendant W.R. Webb.

The Board of Supervisors contends that the real issue in this case is whether the Chancery Court has jurisdiction when there are adequate remedies at law available, specifically appeal of the decision to the Circuit Court under Miss.Code Ann. Sec. 11-51-75 (1972).

Finding that Moore had adequate remedy at law, we affirm the denial of injunctive relief. As this finding is dispositive, we address only this issue.

II.

After conducting a full evidentiary hearing at which Moore was represented by counsel, the Board of Supervisors adopted several facts, summarized below, by a four to one vote as relevant to the residency of Robert E. Moore (the only dissenting supervisor was Robert E. Moore).

In sworn testimony in two causes, on September 16 and November 4, 1986, Robert E. Moore stated that he was living at 2201 West Taft St., Greenwood, Mississippi. This residence is outside of District 2. By affidavit dated August 9, 1986, in Justice Court of Leflore County, Mississippi, Moore stated that his address was 2201 West Taft St. In his affidavit dated December 8, 1986, filed with the Board of Supervisors, Moore, stated that he started staying at 2201 West Taft St. more on a regular basis since May, 1986. He had a utility connection in his name at 2201- 1/2 West Taft Avenue. Moore's address was listed on his voter's card in the office of the Circuit Clerk of Leflore County as being 2201 West Taft. In his November, 1983, Petition for Qualification for Supervisor, District 3 (three), the address of Robert E. Moore was listed as 2201 W. Taft Street. He had been seen at 2201 West Taft St. under circumstances which would support the conclusion that he was actually residing there. On August 9, 1986, Lula B. Moore, wife of Robert E. Moore, filed a sworn Affidavit in Justice Court in Leflore County, Mississippi, stating that Moore's address was 2201 West Taft St. Moore failed to offer or produce any satisfactory evidence of his alleged residence in District 2.

The Final Order of the Chancery Court, denying Moore's petition for an injunction, states that the denial of the Temporary Restraining Order was based on a finding that the Board of Supervisors had authority to make a factual determination under Miss.Code Ann. Sec. 25-1-59 as to Moore's residency.

The statutory remedy by which Moore could have challenged the finding of the Board of Supervisors was to appeal the Board's decision as provided in Miss.Code Ann. Sec. 11-51-75 which states in pertinent part:

Any person aggrieved by a judgment or decision of the board of supervisors, ... may appeal within ten (10) days from the date of adjournment at which session the board of supervisors ... rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors ... The clerk thereof shall transmit the bill of exceptions to the circuit court at once, and the court shall either in term time or in vacation hear and determine the same on the case as presented by the bill of exceptions as an appellate court, and shall affirm or reverse the judgment. If the judgment be reversed, the circuit court shall render such judgment as the board ... ought to have rendered, and certify the same to the board of supervisors ...

The comments to Miss.R.Civ.P. 65 state that the circumstances in which a preliminary injunction may be granted are not prescribed by the rules, but remain a matter of the trial court's discretion, exercised in conformity with traditional equity practice. Under the traditional practice, plaintiff bears the burden of showing the prerequisites for obtaining the extraordinary relief of preliminary injunction. Sierra Club v. Bergland, 451 F.Supp. 120 (N.D.Miss.1978). Inadequacy of the remedy at law is the basis upon which the power of injunction is exercised. V. Griffith, Mississippi Chancery Practice, Sec. 434 (2 ed. 1950). Injunction will not issue when the complainants have a complete and adequate remedy by appeal. Id. Sec. 436. Miss.Code Ann. Sec. 11-51-75 provides that any person aggrieved by a decision of the board of supervisors may appeal to the circuit court. This is an adequate remedy at law, which Moore in fact pursued. Moore v. Sanders, et al, No. 07-059516 (Miss. filed Oct. 21, 1988). See Havens v. Brown, 132 Miss. 747, 96 So. 405 (1923) (Appellees sought an injunction restraining the collection of a school tax fixed by the board of supervisors. In denying injunctive relief, the court noted that no appeal to the circuit court, as provided by statute, was taken); Biloxi-Pascagoula Real Estate Board v. Miss. Regional Housing Authority, 231 Miss. 89, 94 So.2d 793 (1957) (Suit to enjoin housing authority from constructing public housing was dismissed as a collateral attack on a board resolution from which no appeal was taken); Stone, State Tax Comm. v. Kerr, 194 Miss. 646, 10 So.2d 845 (1943) (Injunctive relief denied where statute provides that the circuit court shall have jurisdiction in an action to recover any tax improperly collected).

It is clear that the statutory method of appeal to the circuit court afforded Moore a plain, adequate, speedy, and complete remedy for a judicial determination of his right. Therefore the action of the chancery court in denying Moore's request for injunctive relief is affirmed.

AFFIRMED.

ROY NOBLE LEE, C.J., DAN M. LEE, P.J., and PRATHER, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur.

HAWKINS, P.J., dissents.

PITTMAN, J., not participating.

HAWKINS, Presiding Justice, dissenting:

Hapless Mr. Robert Moore, supervisor of district 2 of Leflore County, had his office declared vacant by the remaining board members upon their determination he was not a resident of his district, a factual determination he vigorously disputed. The board acted pursuant to Miss.Code Ann. Sec. 25-1-59. ¹

Mr. Moore sought injunctive relief in the chancery court which was denied, the chancellor finding that while Miss.Code Ann. Sec. 25-1-59 did not specifically authorize the board to make a factual determination of his residence and declare a vacancy, this authority was implied, because under another statute (Miss.Code Ann. Sec. 23-15-839) there is a duty imposed upon a board of supervisors to make an interim, temporary appointment whenever there is a vacancy in a county office. ² The majority has affirmed, upon the basis that Moore had a complete and adequate remedy at law by appealing the board's decision by a bill of exceptions to the circuit court. Miss.Code Ann. Sec. 11-51-75. ³

Did the board of supervisors have the authority to make a factual determination that Mr. Moore had moved out of district two and thereby vacated his office, as held by the chancellor? And, did Mr. Moore have a complete and...