Native Lumber Co. v. Board of Supervisors of Harrison County

• Decision Date: 28 January 1907
• Docket Number: 12519
• Citation: 89 Miss. 171,42 So. 665
• Court: Mississippi Supreme Court
• Parties: NATIVE LUMBER COMPANY ET AL. v. BOARD OF SUPERVISORS OF HARRISON COUNTY ET AL

42 So. 665

89 Miss. 171

NATIVE LUMBER COMPANY ET AL. v. BOARD OF SUPERVISORS OF HARRISON COUNTY ET AL

No. 12519

Supreme Court of Mississippi

January 28, 1907

FROM the chancery court of Harrison county, HON. THADDEUS A. WOOD Chancellor.

The Native Lumber Company and others, the appellants, were complainants in the court below; the board of supervisors and the board of election commissioners of Harrison county were defendants there. From a decree dissolving an injunction sustaining a demurrer to the bill of complaint and dismissing the suit the complainants appealed to the supreme court.

An election was held in a part of Harrison county under the provisions of what purports to be an act of the legislature (ch. 167, p. 185, laws of 1906), providing for the submission to the voters of a designated part of the county the question of a division of the county into two court districts. The bill charged that fraud was practiced at one voting precinct in said county, and that false returns were made to the election commissioners, and that the election commissioners unlawfully refused to count certain ballots cast against the creation of a second court district, and fraudulently manipulated the returns of said election, so as to show a false majority of one vote in favor of a division of the county into two districts, when in truth the majority was largely, at least fifty votes, against the division of the county. The bill further charged that the election commissioners failed to file with their report to the board of supervisors the tickets, tally sheets and ballot boxes but concealed them, in order to prevent a fair count, and prayed an injunction restraining the board of supervisors from entering any order declaring the election to have been carried in favor of a division of the county, or any order creating the second district, and also sought a mandatory injunction requiring the election commissioners to file with the clerk of the court the ballot boxes, tally sheets and tickets, and that the election be declared to have been carried against a division of the county. The constitutionality of the act of the legislature under which the election was held was assailed in the supreme court, but was not decided.

Affirmed and bill dismissed.

Ford &amp White, and McWillie & Thompson, for appellants.

The propositions which we present on this appeals are:

1. The complainants, citizens and taxpayers of the county, were authorized to maintain this suit, and a court of equity has jurisdiction thereof.

2. The act of the legislature, approved March 18, 1906, Laws 1906, p. 185, is unconstitutional and void.

(a) It undertakes to authorize the division of the county into two circuit and chancery court districts upon a mere majority vote of the electors of the proposed new district.

(b) It was approved, if at all, April 18, 1906, and was passed, if at all, at a special session of the legislature which met January 2, 1906, and remained in session until after the expiration of thirty days from the date of its meeting, and until after the expiration of the time during which the governor, by proclamation, extended the time of the session; the governor's proclamation extended the session only until April 14, 1906, and the governor was without power to extend the session a second time.

(c) The legislature at its special session in 1906 was without power to pass the act, and the governor could not by proclamation authorize it to do so.

3. Under the averments of the bill in this case, which are admitted by the demurrer, the election was fraudulent, it was not carried in favor of the establishment of the second district in Harrison county, and the demurrer to the bill and the motion to dissolve the injunction should have been overruled.

Since the question of jurisdiction ought always to have precedence, we will discuss that first.

That the chancery court has jurisdiction of the case is, we think, too plain for disputation. The complainants are citizens and taxpayers. They show that the county is about to incur large expenses in the erection of public buildings at the alleged new court house town, and they will thereby, as taxpayers, be damaged. They show, further, that the election held under the special act was a fraud pure and simple. It really resulted against the division of the county, but designing election officers have falsely changed the count, reported that the election had carried in favor of division, when it had not been carried at all; these officers suppressed the ballot boxes, tally sheets and ballots and are still suppressing them so as to prevent them being used in proving the falsity of their return. All this is admitted. Complainants obtained an injunction restraining the iniquity. It will be remembered that the act under which the election was held nowhere provides any mode or manner in or by which the election can be contested. This being true, authorities elsewhere for the maintenance of this bill are not wanting. See Cyc., p. 398, note 2; 10 Am. & Eng. Ency. Law (2d ed.), 817, note headed "County Seat Elections." A court of this state, however, does not need any authority on the proposition of jurisdiction in cases like this save the case of Simpson County v. Buckley, 81 Miss. 474, wherein this court decided, that under the constitution of 1890, sec. 259, regulating the removal of county seats, a citizen and taxpayer may in his own name and behalf maintain a proceeding in equity to prevent a violation of the constitution by unauthorized and unlawful action of the board of supervisors. It will not do to say in answer to the application of the Simpson county case to the question now before the court that the election under consideration was not one for the removal of the county seat. The very suggestion seems to us to be absurd. Every reason given by Judge CALHOON in his opinion in the Simpson County case, 81 Miss. 481, applies with full force to the question now before the court. It certainly is a matter of some consequence to the citizen and taxpayer whether or not his county shall be divided into two judicial districts; whether or not it shall incur the large additional expense which the maintenance of two court houses and two jails will impose upon him and the other taxpayers. Certainly the right to prevent a wrongful division of the county into two districts is just as sacred and just as much within the protection of the equity court as the right to prevent the wrongful removal of a county seat. See the authorities cited in the brief of counsel for appellee in the Simpson County case, as published in the report.

Mayes & Longstreet, and E. M. Barber, for appellees.

The demurrer to the bill and supplemental bill in the court below was correctly sustained, for the reason...