Opinion
No. 33993.
January 22, 1940. Suggestion of Error Overruled March 4, 1940.
APPEAL AND ERROR.
Where plaintiff appealed from unsatisfactory judgment in mandamus proceedings to compel board of county supervisors to order an election to fill vacancy in office of county prosecuting attorney, and unexpired portion of deceased attorney's term of office ended January 1, 1940, and any vacancy which might exist as to term beginning on such date had not occurred at time of filing of petition or when judgment was rendered, appeal would be dismissed, irrespective of propriety of judgment, since a "moot question" was presented.
APPEAL from the circuit court of Hancock county; HON. L.C. CORBAN, Judge.
Edward I. Jones, of Bay St. Louis, for appellant.
The court erred in not holding that the resolution of the Board of Supervisors calling the election under Section 4221 of the Code of 1930 is void on its face, in that it fixed the date of the election less than sixty days from the first meeting of the Board after such petitions were filed.
The order failed to recite that the election was being called for a date not less than sixty days from the first meeting of the Board after petition was filed, and the election in fact was held less than the sixty days fixed by the statute.
This is no doubt in violation of the plain wording of Section 4221, Chapter 101, Code of 1930.
The Board of Supervisors does not adjudicate or find the date petitions requesting said election were filed with the Board.
Gordon v. Smith, 122 So. 762; City of Pascagoula v. Krebs, 118 So. 286; Henderson Molpus Co. v. Gammill, 115 So. 716; Bd. of Sup'rs v. Ottley, 146 Miss. 118, 112 So. 466; Aden v. Bd. of Sup'rs, 142 Miss. 696, 107 So. 763; Smythe v. Whitehead, 133 Miss. 184, 97 So. 529; Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Robertson v. Bank, 115 Miss. 840, 76 So. 689; Henry v. Bd. of Sup'rs, 111 Miss. 434, 71 So. 742; Robb v. Telegraph Co., 104 Miss. 165, 61 So. 170, 977; Adams v. Bank, 103 Miss. 744, 60 So. 770; Hinton v. Perry County, 84 Miss. 536, 36 So. 565; Bolivar County v. Coleman, 71 Miss. 836, 15 So. 107; Marks v. McElroy, 67 Miss. 545, 7 So. 408; Lee v. Hancock County, 181 Miss. 847, 178 So. 790.
Gex Gex and Robert L. Genin, of Bay St. Louis, and George R. Smith, of Gulfport, for appellees.
We respectfully submit the motion to dismiss this cause as a moot question having been presented with a certified copy of the order of the Board of Supervisors adjudicating that an election had been held and that 944 electors of that county had voted in favor of abolishing said office and 335 voted against abolishing the same, and the affidavits of members of the Board of Supervisors, and no appeal having been taken from said order; the court committed no error in holding that such order and adjudication of the Board of Supervisors was final and could not be collaterally attacked.
Hinton v. Perry County, 84 Miss. 536, 36 So. 565.
In support of appellees' motion to dismiss this cause as moot, which motion is renewed herewith, we respectfully submit the motion was properly sustained in the lower court and the renewed motion should be sustained by this court.
Sellier v. Bd. of Election Commissioners of Harrison County, 174 Miss. 360, 164 So. 767.
No principal of law is better established than that this court will not devote its time to adjudicating questions involving controversies which no longer exist; and this proceeding is now a suit to compel the Board of Supervisors of Hancock County to call an election to fill an office which does not exist.
Argued orally by Edward I. Jones, for appellant.
This is a proceeding by mandamus, filed by the appellant as a resident citizen and qualified elector of Hancock County, to compel the members of the board of supervisors thereof to order an election to be held to fill a vacancy in the office of county prosecuting attorney caused by the death of Emile J. Gex on July 29, 1938, and wherein his unexpired term is alleged to cover the period ending on the first Monday in January, 1940. The petition specifically prays that the election be held to fill the vacancy in the office "caused by the death of the said Emile J. Gex." The unexpired portion of his term having ended January 1, 1940, any vacancy that may now exist as to the term beginning on that date had not occurred at the time of the filing of this petition or when the judgment appealed from was rendered; and hence the board of supervisors could not have been in default in regard thereto. The issue presented by the pleadings is now a moot question. Therefore, without regard to whether or not the judgment of the court below was erroneous on the date when rendered, the appeal must be dismissed.
It is so ordered.