State ex rel. Fontaine v. Anderson
| Decision Date | 26 November 1923 |
| Docket Number | 23675 |
| Citation | 97 So. 884,133 Miss. 533 |
| Court | Mississippi Supreme Court |
| Parties | STATE ex rel. FONTAINE v. ANDERSON |
APPEAL from circuit court of Coahoma county, Second District, HON W. A. ALCORN, JR., Judge.
Quo warranto by the state of Mississippi, on the relation of E L. Fontaine, against E. L. Anderson. Judgment of dismissal and relator appeals. Reversed and remanded.
Reversed and remanded.
Maynard, Fitzgerald & Venable, for appellant.
The sole question in this case is this: A quo warranto has been brought against E. L. Anderson, alleging that he usurps the office of election commissioner of Coahoma county, Mississippi. The petition was brought in the second court district of Coahoma county, Mississippi. The usurper lives in the first court district of Coahoma county, but exercises the functions of his office and acts as such election commissioner solely and alone in Clarksdale in the second court district of Coahoma county, Mississippi.
It has been decided by this court in the case of State v. The Mississippi Cotton Oil Company, 79 Miss. 203, that the quo warranto chapter is separate and apart from any other jurisdictional acts of the legislature and that it is governed solely and alone by the venue as laid down in said chapter.
The only case directly bearing upon the question of venue in quo warranto proceedings in the state of Mississippi, which we have been able to find is the case above cited, State of Mississippi v. Mississippi Cotton Oil Company, 79 Miss. 203. That was a case in which the attorney-general brought suit in quo warranto against a number of oil mills, some of whom had agents in the county of Hinds, other who did not; a number of whom were domiciled in the state of Mississippi, in different counties, and a number of whom were non-residents of the state with principal places of business in other counties of the state than Hinds. It seems to have been conceded in the case by all of the parties that as to the oil mills who were doing business in the county of Hinds and had agents there, the suit was properly brought; but that as to the other defendants the suit should have been filed in the county of the domicile of the corporation or where it had a place of business and an agent.
In this case, we do not know what the statute meant other than expressed by the English language when it said that suit should be brought "or, in the case of an officer, where he acts as such." It is not a question of convenience; it is not a question of residence; it is not a question of common law or equity; but a purely statutory remedy brought according to the terms of the statute at the place where the officer acts. The court itself can construe these plain English words without our help as well as if we would write a brief of interminable length.
Of course, it cannot be disputed that under chapter 93, section 13, of the Acts of 1892, the court should never have dismissed this cause anyway, but if he was correct in the law that it was filed in the wrong district he should have transferred it to the first district. This is squarely decided in the case of Hurlbutt v. Westbrook, 111 Miss. 643.
Sam C. Cook, Jr., W. B. Miller, J. H. O'Neal, J. J. Adams, J. J. Adams, Jr., Earl Brewer, Ed Brewer, J. L. Roberson, E. M. Yerger, E. F. Whittington, J. W. Cutrer, E. W. Smith, and W. T. Covington, Jr., for appellee.
The sole question presented to this court is whether or not the court below had jurisdiction of the action. Section 3013 of Hemingway's Code, provides that the information shall be filed in the circuit court of the county of the residence of the defendant. The information shows that the defendant is a citizen, and, in order to be a citizen he must be a resident of the first judicial district of Coahoma county, Mississippi.
Chapter 93, section 13 of the Acts of 1892, provides that in so far as the bringing or filing of civil actions is concerned, that the two judicial districts of Coahoma county shall be treated as two separate counties. It is therefore patent that the circuit court of the second judicial district of Coahoma county, Mississippi, would have no more jurisdiction of this action than the circuit court of Quitman county would have.
In the case of the State of Mississippi v. The Mississippi Cotton Oil Company, 79 Miss. 203, the court said:
As pointed out by the court in the case of Hurlbutt v Westbrook, 111 Miss. 643, the provisions in the Laws of 1892 are analogous to our general sta...
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