Opinion
No. 33294.
January 2, 1939. Suggestion of Error Overruled January 30, 1939.
INTOXICATING LIQUORS.
A special election on whether beer and light wines should be sold in Covington County held pursuant to order of board of supervisors on petition of 810 qualified voters, where total registration in county did not exceed 2,600 voters, after proper notice of election was legal (Laws 1934, chapter 171, section 2; Code 1930, sections 310, 6265).
APPEAL from the circuit court of Covington county; HON. EDGAR M. LANE, Judge.
King Berry, of Mendenhall, and G.L. Martin, of Prentiss, for appellants.
It has been held by our court in a long line of decisions that the board of supervisors is a court of special and limited jurisdiction and every jurisdictional fact must appear of record on its minutes, and if not, the fact is conclusively presumed never to have existed and, in legal contemplation, does not exist. No presumption is indulged, the facts must appear.
Broom v. Board of Supervisors, 158 So. 344; Board of Supervisors v. Ottley, 146 Miss. 118, 112 So. 466; West v. Town of Waynesboro, 152 Miss. 443, 119 So. 809; Boutwell v. Board of Supervisors, 128 Miss. 337, 91 So. 12.
We call the court's attention to the final order of the board of supervisors and find these words with reference to notice; ". . . and that due, legal and proper notice was given of said election as required by sections 310 and 6265, Mississippi Code 1930 and other statutes in that regard;" We most respectfully submit that these words do not adjudicate the fact of notice at all.
Merchants Bank v. Scott County, 165 Miss. 91, 145 So. 908.
The court will note that no where in all the proceedings, in the final order or anywhere else, is there any adjudication of the very necessary jurisdictional fact that the proof of publication was ever actually before the board of supervisors when the final order was passed. The final judgment was void without this.
Board of Supervisors v. Ottley, 146 Miss. 118, 112 So. 466; Oliver v. Baird, 90 Miss. 718; Monroe Co. v. Minga, 127 Miss. 702, 90 So. 443; Merchants Bank v. Scott Co., 165 Miss. 91, 145 So. 908; Bank of Weir v. Attala Co., 156 Miss. 560, 126 So. 192; Austin Western Road Machinery Co. v. Webster Co., 154 So. 723; Belt v. Adams, 124 Miss. 194, 86 So. 584.
We submit that this mere recital in the final order that notice was given is not cured by any reference to the code sections, for the reasons that no facts appear upon which any conclusion of law can rest. If the order had recited that the notice had been published for thirty days, as required by section 310 of the Code, and that due proof of publication of this fact is now before the board and that the said notice had also been posted in each of the election districts of the county and at the courthouse, as required by section 6265 of the Code, and it appears that due proof of such posting is now before the board, then, and not until then, we submit, has the order adjudicated the necessary jurisdictional facts of notice, for the required notice is "process."
Monroe Co. v. Minga, 127 Miss. 702, 90 So. 443.
And, too, we submit that no mere reference to a statute will adjudicate a fact. The facts must appear before the law can be applied.
We call attention of the court to this proof of publication. It nowhere shows that this newspaper complies with chapter 313, Laws 1936. How can this, or any other court, determine from this proof of publication that this paper was any legal newspaper as contemplated by this statute? Most assuredly this was a legal notice and if so, it was required to be published in a paper that "has been established for at least twelve months next prior to the first publication," etc. This was a jurisdictional fact and matter and we submit that this fact must appear as having been adjudicated and appear affirmatively on the minutes.
Broom v. Bd. of Suprs., Jefferson Davis County, 158 So. 344.
The court will note from the proof of publication that this notice was not published thirty days.
There is in the record, sent up by certiorari, a mere certificate of the sheriff, certifying that he had posted the notice at the courthouse of Covington county and in each election district. We submit that this is not proof of any posting; there is no affidavit of the sheriff or any adjudication of any fact in the order that the sheriff had posted any notice at all.
Section 1596, Code of 1930.
If we understand the decisions of our court, it has uniformly held in a long line of decisions that section 1596 will be construed strictly against one claiming to have given constructive notice by publication.
Austin Western Road Mach. Co. v. Webster Co., 154 So. 723; Wentworth v. Flowers, 163 Miss. 39; Zecharie v. Bowers, 3 S. M. 641; Cameron v. Whittington, 120 Miss. 595, 82 So. 311; Wergin v. Vose, 26 A.L.R. 933; Ogilvie v. Aetna Ins. Co., 26 A.L.R. 116.
No Mississippi statute has ever made mere recitals of a sheriff evidence. We most respectfully submit that since no legal publication was made, this matter of proof of posting was jurisdictional.
Oliver v. Baird, 90 Miss. 718, 44 So. 35; Monroe Co. v. Minga, 127 Miss. 702, 90 So. 443; Bd. Supervisors v. Ottley, 146 Miss. 118, 112 So. 466; Merchants Bank v. Scott Co., 165 Miss. 91, 145 So. 908; Peoples Bank of Weir v. Attala Co., 158 Miss. 560, 126 So. 192; Austin Western Mach. v. Webster Co., 154 So. 723; Hardin v. Ho-yo-ponubby, 27 Miss. 567; Cockerell v. Wynn, 12 S. M. 117; 46 C.J. 560, par. 75; Roach v. Eugene, 23 Or. 376, 31 P. 825; Koch v. Bridges, 45 Miss. 258; Abbott v. Pratt, 81 So. 296, 144 La. 741.
The tally sheet and report comprise the whole report of the election commissioners. There is not a thing in the report to show that any notice whatsoever was given; there is not made any reference to any notice; no reference to any proof of publication.
Bd. of Suprs. v. Ottley, 146 Miss. 118.
The board of election commissioners is a separate and distinct functioning body under the law and acts either judicially or quasi-judicially and when the board of supervisors ordered an election and fixed the time for its holding and issued the writ or in lieu thereof a certified copy of the notice to hold the election, then the whole matter passed out of the hands of the board of supervisors and into the hands of the election commissioners, under the law, and it became their duty to give the notice, canvass the returns, and make a report in which should have been set out the facts of how and for how long notice had been given and proof of the publication and proof of the posting of the notice should have been submitted by them to the board of supervisors in order to confer jurisdiction on the board of supervisors to close the matter out as required by law.
Section 2, chapter 171, Laws of 1934, is unconstitutional and invalid.
The safety of the citizen in his property rights cannot be shifted to the caprices, whims and idiosyncracies of politics.
I.I.C. v. R.R. Co., 218 U.S. 88, 44 L.Ed. 949; 12 C.J. 839, 840; State v. Watkins, 147 So. 8; Porter Coal Co. v. Davis, 165 So. 93; 6 R.C.L. 164, 166.
Russell Wright, Assistant Attorney-General, for appellee.
The only question in this case is whether there was proper notice given of the election. The record shows an order of the court in which order of the court there is set out that the parties have agreed that such publication of the notice of election had been made, and due proof thereof made. If the publication which was shown to have been made was before the board of supervisors when it entered the order, and the agreement of counsel was that it was before them, then the election was in all respects valid and I submit the judgment of the circuit court should be affirmed.
Argued orally by G.L. Martin, for appellant.
A petition, signed by 810 qualified electors of Covington county, was presented to the Board of Supervisors of that county, asking for an election to determine whether or not the sale of beer and light wines should be prohibited therein, and stating that the petitioners were qualified electors, but not that they constituted more than 20% of the qualified electors of the county. The Board of Supervisors received the petition, and on examining the registration and poll books found the petition to be signed by electors largely in excess of the required 20%; whereupon they ordered the election to be held on the 18th day of May, 1937. The order for this election was passed at the April meeting of the board; and the election commissioners published notice in due form in a paper of the county more than thirty days prior to the election, prescribing the ballot, and stating the purpose of the election, and the date on which it should be held. The result of the election was to prohibit the sale of beer and light wines in the county, by a decided majority. The proof of publication and the report of the election commissioners were filed with the clerk of the Board of Supervisors, and were so marked by him; and were on file on the first Monday in June following the election, when the final order was entered on the minutes of the Board of Supervisors, prohibiting the sale of beer and light wines in the county.
The order of the board in passing upon the sufficiency of the petition in regard to the requisite jurisdictional facts, recites that the total registration for the county at the time the petition was presented did not exceed 2,600 voters, and that there were 810 qualified voters on the petition in question, which constitutes 20% and more of the duly qualified voters of the county. Under section 2 of chapter 171 of the General Laws of 1934, the board ordered a special election on matter set out in the petition, and fixed Tuesday, May 18, 1937, as the date for holding the election.
At the June meeting T.D. Day, Sr., and a number of other parties, appeared before the board and protested against the validity of the said election, assigning many alleged reasons for their objections, among other things challenging the constitutionality of the law under which the election was to be held, which petition was overruled, and the order prohibiting the sale of such liquors was entered. The order, among other things, recited: "And that due, legal and proper notice was given of said election as required by sections 310 and 6265, Mississippi Code 1930, and other statutes in that regard that all things were had and done precedent to the holding of said election required to be had and done by the Constitution and laws of this state precedent to the holding of said election; that on the 18th day of May, 1937, the date ordered for said election to be held, that said election was, in all respects, legally held in said county and at such voting precinct in said county, and from the tally lists and statement of the result of said election and the report of the county election commissioners and otherwise, it appears that the transportation, storage, sale, distribution, receipt and/or manufacture of light wines and beer be excluded from the county, the vote being as follows: For 588 and against 1182 making a majority voting in said election of 594, excluding the transportation, storage, sale, distribution, receipt and/or manufacture of such beverages in the county."
The writ of certiorari was obtained from the circuit judge of the Seventh District, and the record was certified to the Circuit Court of Covington County, where, on the record and argument of counsel, the election and proceedings in reference thereto were adjudged legal, and the petition for certiorari dismissed. When the record came before the circuit judge the original publication in the newspaper, and proof thereof, had been mislaid, and it was agreed that such publication and proof had been made, and a substituted proof of publication filed with the record which did not show publication for thirty days. A motion was made in this Court to remand the record to the circuit court for correction as to the notice published, it being shown by affidavit of the printer that the notice was actually published and filed for more than thirty days. On the hearing of this matter the court found as a fact that the proof of publication had been made for the time stated, that it was on file with the Board of Supervisors when the order was passed by the board, and was before the circuit court when the writ of certiorari was dismissed.
We have considered the record fully, and think that the election was in all respects legal. The law in regard to this question is to be found in Martin v. Board of Supervisors of Winston County, Miss., 178 So. 315; Elliott v. Board of Supervisors (Miss.), 180 So. 72; and Pettibone v. Wells (Miss.), 179 So. 336.
The judgment will therefore be affirmed. Affirmed.