Moran v. Murphy

• Decision Date: 22 January 1940
• Docket Number: 33993
• Citation: 193 So. 29,187 Miss. 633
• Court: Mississippi Supreme Court
• Parties: MORAN v. MURPHY et al

193 So. 29

187 Miss. 633

MORAN v. MURPHY et al

No. 33993

Supreme Court of Mississippi, Division B

January 22, 1940

Suggestion Of Error Overruled March 4, 1940.

APPEAL from the circuit court of Hancock county HON. L. C. CORBAN Judge.

Mandamus proceeding by S. S. Moran against Charles Murphy and others to compel members of the board of supervisors of Hancock county to order an election to be held to fill a vacancy in the office of county prosecuting attorney. From an unsatisfactory judgment, plaintiff appeals. Appeal dismissed.

Appeal dismissed.

Edward I. Jones, of Bay St. Louis, for appellant.

The court erred in not holding that the resolution of the Board of Supervisors calling the election under Section 4221 of the Code of 1930 is void on its face, in that it fixed the date of the election less than sixty days from the first meeting of the Board after such petitions were filed.

The order failed to recite that the election was being called for a date not less than sixty days from the first meeting of the Board after petition was filed, and the election in fact was held less than the sixty days fixed by the statute.

This is no doubt in violation of the plain wording of Section 4221 Chapter 101, Code of 1930.

The Board of Supervisors does not adjudicate or find the date petitions requesting said election were filed with the Board.

Gordon v. Smith, 122 So. 762; City of Pascagoula v. Krebs, 118 So. 286; Henderson Molpus Co. v. Gammill, 115 So. 716; Bd. of Sup'rs v. Ottley, 146 Miss. 118 112 So. 466; Aden v. Bd. of Sup'rs, 142 Miss 696, 107 So. 763; Smythe v. Whitehead, 133 Miss. 184, 97 So. 529; Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Robertson v. Bank, 115 Miss. 840, 76 So. 689; Henry v. Bd. of Sup'rs, 111 Miss. 434, 71 So. 742; Robb v. Telegraph Co., 104 Miss. 165, 61 So. 170, 977; Adams v. Bank, 103 Miss. 744, 60 So. 770; Hinton v. Perry County, 84 Miss. 536, 36 So. 565; Bolivar County v. Coleman, 71 Miss. 836, 15 So. 107; Marks v. McElroy, 67 Miss. 545, 7 So. 408; Lee v. Hancock County, 181 Miss. 847, 178 So. 790.

Gex & Gex and Robert L. Genin, of Bay St. Louis, and George R. Smith, of Gulfport, for appellees.

We respectfully submit the motion to dismiss this cause as a moot question having been presented with a certified copy of the order of the Board of Supervisors adjudicating that an election had been held and that 944 electors of that county had voted in favor of abolishing said office and 335 voted against abolishing the same, and the affidavits of members of the Board of Supervisors, and no appeal having been taken from said order; the court committed no error in holding that such order and adjudication of the Board of Supervisors was final and could not be collaterally attacked.

Hinton v. Perry County, 84 Miss. 536, 36 So. 565.

In support of appellees' motion to dismiss this cause as moot, which motion is renewed herewith, we respectfully submit the motion was properly sustained in the lower court and the renewed motion should be sustained by this court.

Sellier v. Bd. of Election Commissioners of Harrison County, 174 Miss. 360,...