Simpson County v. Buckley

• Decision Date: 27 March 1905
• Citation: 85 Miss. 713,38 So. 104
• Court: Mississippi Supreme Court
• Parties: SIMPSON COUNTY v. THOMAS J. BUCKLEY ET AL

38 So. 104

85 Miss. 713

SIMPSON COUNTY v. THOMAS J. BUCKLEY ET AL

Supreme Court of Mississippi

March 27, 1905

November 1904

FROM the chancery court of Simpson county, HON. ROBERT B. MAYES Chancellor.

Buckley and others, the appellees, were complainants in the court below; Simpson county and the members of the board of supervisors thereof were defendants there. From a decree in complainants' favor defendants appealed to the supreme court. The facts are stated in the opinion of the court.

[For a prior report of the case, see Simpson County v Buckley, 81 Miss. 474.]

Decree affirmed.

C. M Whitworth, Alexander & Alexander, and George B. Power, for appellant.

What is the jurisdictional fact in this case? The jurisdictional fact is that which gives authority to a tribunal to adjudge as between the parties. The right to proceed in the determination must not be confused with the correctness of the judgment rendered. United States v. Arredondo, 6 Pet., 709; Rhode Island v. Massachusetts, 12 Pet., 718; 17 Am. & Eng. Ency. Law, 1041, 1056, sec. 19.

The presence of authority to proceed in the particular case is jurisdiction. Elliott on Appellate Procedure, secs. 12, 499. Turner v. Conkey, 17 L. R. A., 509.

The jurisdictional fact in this case is the petition by two hundred electors. That gave the board power to sit as a special tribunal. That started the machinery of the special court. It is almost universal that the jurisdictional fact is something that the court, or tribunal, has to pass on initially. It is the almost universal rule that county boards or commissioners obtain their jurisdiction to hear and determine as to removal of county seats by a petition of the taxpayers or voters. 11 Cyc., 373.

If we are correct in this view, then the order is not subject to collateral attack, except for fraud, and this we understand to be the decision in Hinton v. Perry County, 84 Miss. 536, and in the former appeal in this case.

If it be held that the jurisdictional question is whether Edna (now Mendenhall) was nearer the center or that removal carried by a two-thirds majority of the qualified electors, we still say that that is sufficiently found in the order. It recites that "it appears to the satisfaction of the board that removal carried by receiving a majority of the votes cast," etc.

Now the rule is that in doubtful cases courts treat defects as errors instead of jurisdictional defects. 17 Am. & Eng. Ency. Law 1066. And mere looseness and informality in orders of inferior courts will never be held fatal. Great liberality must govern. B. &. A. Dig., 671; Works on Courts, 88, 89, 145.

The finding that removal carried is necessarily a finding that it received the requisite vote. To so construe the word "carried" is not to indulge a presumption in favor of the order. It is to construe a word and determine what its use indicated. It is the word used in the statute.

It is not sufficient for complainants to show that the order is void. They must show that the election did not carry for removal. In any election the vote is the material thing. Pradat v. Ramsey, 47 Miss. 24. It was not even essential that the board make any order. The removal follows "if it appears that the removal has carried." The finding of the board is in the exact language of the statute.

Chancery treats as done what ought to have been done. It is under this rule that equity will not relieve against a void judgment unless complainant shows merits--i. e., that he does not owe the debt, or that on a second trial a different judgment would result. Stewart v. Brooks, 62 Miss. 492; Newman v. Taylor, 69 Miss. 670. And the justice and validity of his cause must be shown to a high degree of certainty. Cotton v. Hiller, 52 Miss. 7; Greene v. Bank, 73 Miss. 542.

Complainants recognize this rule and averred in the bill that Edna was further from the center and that it did not carry by two-thirds majority. These averments are denied by the answer, and complainants endeavored to prove them, but failed. They failed to show by any competent evidence the center of the county.

There was not sufficient proof as to the true number of voters in the county. The answer denied that Edna did not get two-thirds of all the votes in the county. The only proof at all was the registration book. The insufficiency of this has been more than once announced by this court. Madison County v. Brown, 67 Miss. 694; Bew v. State, 71 Miss. 1. As complainants' counsel relied on the case of Hawkins v. Carroll County, 50 Miss. 755, on this point, we suppose they overlooked the fact that Code 1871, § 373, made registration prima facie evidence of the right to vote.

Since the order has been executed and removal accomplished, the county seat and records cannot be moved to another place without a showing that the removal was fraudulently accomplished. The board can only canvass the result and direct the removal; but if the removal in fact carried, the absence of an order or an irregular order could not defeat the will of the people manifested at the polls. If the removal was accomplished by fraud (this involving, of course, illegality), the mandatory injunction to relieve against the fraud would lie; but in the absence of fraud the question is not whether the order is void, but, Did removal carry? The court finds a county seat at Edna and is asked to remove it to Westville, because the election did not carry. Surely, in the absence of fraud and of affirmative evidence that removal did not carry, the removal back will not be decreed. This is why the opinion in the Perry county case distinguished this case on the sole ground that fraud was charged.

It is argued that the decree in the Weathersby suit is not res adjudicata, because procured by collusion. The board was not a party to, or even cognizant of, the compromise. The class of litigants selected attorneys, and they brought the suit in the name of Weathersby. They selected Weathersby as their representative. Why should they not be bound by his acts and omissions? They sued out an injunction which bound the board of supervisors. A decree for complainant would have finally concluded the county. The estoppel should be mutual.

The general doctrine of the conclusive effect of decrees in class suits is discussed in Freeman on Judgments, sec. 178. See also Works on Courts and Jurisdiction, 144. If it is true that a judgment is conclusive, although resulting from ignorance or stupidity of counsel or the blunders of litigants, a decree ought to be conclusive when litigants, either from indifference or for a consideration, decline to press a suit and allow a court to render the proper judgment consequent upon their neglect.

If this decree is not binding, what is there to hinder one taxpayer from filing a suit and enjoining, and after a year or two, just before a final hearing, dismissing, and then repeat the same process, and so on, ad infinitum? This reasoning is strongly set out in 45 Cal. 6.

The law favors compromises, and compromise decrees bind parties and their privies; and as there is no evidence that the suit was collusive or the compromise fraudulent, the decree ought to be held binding.

Surely it cannot be argued that the statute means that no second election can be had unless two-thirds of the electors vote for removal. To so hold would be to defeat the right of a contesting place, although nearer the center, to be chosen on a second election by a mere majority. The most that complainants can, on their own theory, say is, in the language of the act, that "it appears that removal has carried, but no point has secured the number of votes necessary to a choice as required by sec. 259 of the constitution." In that case the only proper order should be that the second election should be held to see if Edna can secure the requisite vote.

Similar statutes and constitutional provisions have been construed by courts of other states. Our opinion is fully sustained by the opinion of Mr. Justice Brewer in the case of County Seat of Osage County, 16 Kan. 296.

J. A. P. Campbell, on the same side.

Many more than the two hundred qualified electors of the county required by the statute petitioned the board of supervisors to order an election on the question "of the removal of the seat of justice of said county from Westville to some convenient point on the Gulf & Ship Island Railroad." The order was made accordingly, and the election was held, at which nine hundred and four votes were cast, and six hundred and forty-four of them (more than two-thirds) were for removal, and six hundred and twenty-five were for removal to Edna (now Mendenhall), a point on the railroad mentioned. Although opportunity was given by the board for all other points to compete, no other did. In this state of case the board ordered removal to Edna, and it was effected. Any citizen might have been heard by the board in opposition and might have appealed from its action to the circuit court and to this court. No such course was taken. Buildings for county purposes were procured at Edna, offices were opened there courts were held, taxes were levied and collected, tax sales were made, instruments were recorded, marriage licenses were issued; in fact, all public business was done, and bonds to the amount of $ 25,000 were issued and sold to raise money to pay for courthouse and jail. This suit was brought and a decree was made to undo all, and a return of the records to Westville within a short time was commanded. The decree is sought to be maintained on the ground that Edna is not toward the center of the county, and that two-thirds of the electors of the county did not vote for removal to that point. There is in the record some evidence which, if competent, tends to show...