State v. Board of Sup'rs of Coahoma County

• Decision Date: 28 February 1887
• Citation: 1 So. 501,64 Miss. 358
• Court: Mississippi Supreme Court
• Parties: STATE OF MISSISSIPPI v. BOARD OF SUPERVISORS OF COAHOMA COUNTY

1 So. 501

64 Miss. 358

STATE OF MISSISSIPPI v. BOARD OF SUPERVISORS OF COAHOMA COUNTY

Supreme Court of Mississippi

February 28, 1887

APPEAL from the decision of HON. J. H. WYNN, Judge of the Fourth Judicial District.

On March 15, 1886, a bill passed the two houses of the legislature, entitled "An Act to submit to the qualified electors of Coahoma County the removal and location anew of the county site of said county," and providing "that a special election be held on the first Tuesday in August next" to determine that question. On March 16 1886, this bill was presented to the governor for his approval. On March 18, 1886, the legislature adjourned sine die. On August 26, 1886, the governor approved and signed this bill and put it in the hands of the secretary of state. On December 13, 1886, the Board of Supervisors of Coahoma County refused to order an election, in accordance with this act, to be held on January 4, 1887. Thereupon, on January 8 1887, the State, on the relation of its attorney general, T M. Miller, by petition, prayed a writ of mandamus to compel the board of supervisors to order an election to be held at as early a day as possible, under and in accordance with the provisions of this act.

The board of supervisors plead that the prayer of the petitioner should not be granted, (1) because the act in question never became a law; (2) if did become a law, that the time for holding such an election had passed, to wit, the "second Tuesday in August next," meaning August, 1886. The case was heard in vacation and the judge dismissed the petition. The petitioner prayed an appeal. The judge granted the appeal without requiring any bond. The appellees made a motion in this court to dismiss the appeal because of the failure of petitioner to give the usual appeal-bond. This motion and the case upon its merits are considered and disposed of together in the opinion hereinafter following.

Affirmed.

Cutrer & Cutrer, for the appellant.

1. This is a suit brought by the State of Mississippi, by its attorney general, in a matter affecting the public interest. High's Ex. Leg. Rem., §§ 430a, 431 et seq.; Code 1880, § 2551; vide, also, § 2542; and no appeal-bond was necessary.

In the event, however, the court should be of opinion that an appeal-bond should have been given, the failure to give it does not deprive this court of jurisdiction. A filing of a transcript of the record is all that is necessary to confer power to dispose of the case. Code 1880, § 2322. After that is done, the court has authority to make all orders and impose all conditions, to require that all omissions irregularities, and defects be cured by substitution or amendment, that it may deem necessary to perfect the appeal and obtain the judgment of the superior court. And such appeal shall be dismissed only on failure of appellant, within a reasonable time, to perfect his appeal in the manner indicated by the court. Code 1880, §§ 1406, 1407.

2. We submit to the court that the former decision of the question as to the validity of an act of the legislature, signed by the governor after adjournment of the legislature, is not sound in principle, is unwarranted by the language and terms of the constitution, and is directly opposed to the weight of authority.

The court in that case, Hardee v. Gibbs, 50 Miss. 802, bases its conclusions upon the mistaken theory that the governor is a component part of the legislature in making laws, and, therefore, he can do no legislative act, i. e., he can neither sign nor approve bills, except when the legislature is in session. The theory has nothing but dicta for its support, and the best courts of the country have repudiated it whenever occasion has arisen.

The very question at issue has been decided in favor of the validity of the law in the adjoining State of Louisiana, under a constitution seemingly less favorable to the exercise of the right of the governor to sign a bill after the adjournment of the legislature than § 24 of article iv of the constitution of Mississippi. Vide The State of Louisiana ex rel. S. Belden, Attorney General, v. Wm. Fagan et al., 22 La. Ann. 545.

The same may be said of the Supreme Court of New York construing a similar clause of the constitution of that State. Vide The People of the State of New York by their Attorney General v. James Bowen et al., 30 Barbour 24.

The reasoning of the court in this case is particularly clear, forcible, and conclusive, and its conclusion is not to be dissented from.

The Supreme Court of the United States has made its latest enunciation of the law on this subject. That court has no hesitation in saying that the signature of approval of the governor after adjournment of the legislature is effectual to give the bill signed validity as a law. Seven Hickory v. Ellery, 103 U.S. 423.

3. It is said that the legislative intent was that the election contemplated should be held in 1886. This cannot be. The legislative intent spoken of comes into existence and takes effect only by and from the date and fact of approval, so that the words "August next" mean August next after approval. There is no conflict of authorities on this point. The board must appoint commissioners to hold the election required to be held on the first Tuesday of August, 1887. No finesse as to what the legislature may have meant had the act been approved at an earlier day can avail to protect appellee in its refusal to discharge its plain duties under the law as it is.

4. Mandamus lies to enforce the appointment of these commissioners in ample time to insure the prompt holding by them of said election on the day fixed therefor by law. They refuse to appoint unless enforced, and otherwise the law fails totally of effect. High's Ex. Legal Rem. 450.

D. A. Scott & George Winston, for the appellee.

1. The appellant is not entitled to an appeal without bond. Section 2333 of the Code of 1880 does not apply to such a case. The State is not "beneficially interested" in the suit. It is apparent from the petition that neither the State as such nor the people of the State generally have any direct interest, pecuniary or otherwise, in the suit. Only the County of Coahoma has any interest in the suit, and the board of supervisors of that county, the only representatives of said county who are parties to the suit, are defendants and ask no appeal.

The fact that the suit is brought in the name of the State does not make it a matter of State or public interest. State v. Myers, 61 Miss. 138.

2. In the case before the court the governor signed and approved the act in August some five or six months after the act was presented to him, and after the adjournment of the legislature, and the court is asked to reverse the decision of Hardee v. Gibbs, 50 Miss. 802, and to hold that approval of the governor was proper and gave validity to the act from the date of such approval. It is contended that the current of authority outside of the State would support such a decision. It is submitted that this is not the case, but that, on the contrary, where the act is approved in vacation after the expiration of the time allowed by the constitution for the consideration by the governor of bills, five days in this State, the current of authority is against the validity of such approval. How do the authorities stand?

Mr. Cooley in his Constitutional Lim. approves the view that the governor in approving an act performs a legislative function; that in doing such an act he is a component part of the legislature, and that in the vacation of the legislature he cannot approve an act at any time. Const. Lim. 155.

The same view is held by the Supreme Courts of California and of this State. Fowler v. Pierce, 2 Cal. 165; Hardee v. Gibbs, 50 Miss. 802.

The Supreme Courts of Georgia, New York, and of the United States hold that the governor can sign and approve an act of the legislature after its adjournment only within the short time which he is given by the constitution to consider and sign or veto an act while the legislature is in session. Soloman v. Comm. Cartersville, 41 Ga. 157; People v. Bowen, 21 N.Y. (7 Smith) 517; Seven Hickory v. Ellery, 13 Otto 423.

There is only one case which I have been able to find holding the doctrine contended for by the appellant, i. e., that the governor may sign and approve an act at any time in the vacation of the legislature, and that is the case of the State ex rel., etc., v. Fagan et al., 22 La. Ann. 546.

3. If the act was properly approved by the governor, and went into effect from the date of such approval, i. e., on the 26th of August, 1886, the question arises when the legislature intended that the election provided for should be held, whether on the first Tuesday of August, 1886, or the first Tuesday in August, 1887.

The first section of the act provides that a special election be held on the "first Tuesday in August next," etc. It does not provide that the election shall be on the first Tuesday in August next after its passage or after it went into effect. The act passed the house on the fourth of March, 1886, and the senate on the fifteenth of March, 1886, and there can hardly be a doubt that the intention of the legislature was that the election should be held on the first Tuesday of August, 1886. If this be the true construction, the election could not be held at that time, because the act was not approved until the twenty-fourth day of August, 1886.

4. Should it be held that the intention of the act is that the election should be held on the first Tuesday in August after it takes effect, then such election cannot be held until the first Tuesday in August, 1887, and this suit is premature. The agreed state of facts does not show any default in the performance of a...