Opinion
No. 38703.
March 23, 1953.
1. Elections — notice by newspaper publication — thirty days.
When the law requires that thirty days notice of an election be given by newspaper publication, the first publication of the notice must be made at least thirty days prior to the election and the publication must be continued in each successive weekly issue of the newspaper until the date of the election and not more than seven days should be allowed to intervene between the last publication of the notice and the election.
Headnote as approved by Kyle, J.
APPEAL from the circuit court of Carroll County; HENRY L. RODGERS, Judge.
J.C. Neill and W.W. Pierce, for appellants.
I. The circuit court erred in holding that the notice of the election held pursuant to the order of the board of supervisors, adopted on the 5th day of November, 1951, was thirty days notice of the election as required by law. Sec. 3018, Code 1942; Simpson County v. Burkett, 178 Miss. 44; Henry v. Board of Supervisors, 203 Miss. 780; Nebraska Land Co. v. McKinley-Lanning Co., 52 Neb. 417, 72 N.W. 357; Terrebonne Ref. Co. v. Police Jury, (La.), 40 So. 443.
II. The circuit court erred in holding that the order of the Board of Supervisors of Carroll County, Mississippi, adopted on the 5th day of November, 1951, while in executive session behind closed doors, in a room from which appellants, their attorneys, and the general public was excluded, was a valid order. Mohundro v. Board of Supervisors, 174 Miss. 517; Costas v. Board of Supervisors, 196 Miss. 104; Secs. 24, 25, Constitution 1890; Miles v. Board of Supervisors, 33 So.2d 810; Byrd v. Byrd, 193 Miss. 249.
III. The circuit court erred in holding that the order of the board of supervisors, adopted on the 5th day of November, 1951, was not void for the reason that it does not show on its face that it was adopted in either the First or Second Judicial District of the County of Carroll, and by reason thereof does not show the necessary jurisdictional facts upon which to base a valid order. Broom v. Board of Supervisors, 171 Miss. 586; Boutwell v. Board of Supervisors, 128 Miss. 337; Adams v. Banks, 103 Miss. 744; Sec. 2786, Code 1942; Green v. Board of Supervisors, 172 Miss. 573; Boliver County v. Coleman, 71 Miss. 832; Lester v. Miller, 76 Miss. 309; Craft v. Board of Supervisors, 79 Miss. 618; Henry v. Board of Supervisors, 111 Miss. 434; Aden v. Board of Supervisors, 142 Miss. 696; Board of Supervisors v. Ottley, 156 Miss. 118; Ferguson v. Board of Supervisors, 149 Miss. 623; State ex rel. v. Harris, 18 So. 123.
IV. The circuit court erred in holding that a substantial departure from the requirements of Sec. 3209, Code 1942, by closing the polls before six o'clock in the evening, and by removing the voted ballots all but about five or six in the ballot box for the purpose of counting the ballots, and then letting other persons vote, did not void the election. Secs. 3209, 3267, Code 1942; Black on the Interpretation of Laws, 2d Ed., p. 529; Hayes v. Abney, et al., 186 Miss. 208; McInnis v. Thames, 80 Miss. 617.
Maurice R. Black and Henry Edmonds, for appellee.
I. The election commission of Carroll County, Mississippi, gave the notice required by law of the election in issue.
The appellants' analysis of the decisions of this Court in Simpson County v. Burkett, 178 Miss. 44, and Henry v. Board of Supervisors of Newton County, 203 Miss. 780, as holding, first, that there must be thirty days notice of the election, and second, that the notice should be given by publication thereof in a newspaper in the "usual and ordinary way that notice of countywide matters are usually given," is correct, but we respectfully submit that appellants are entirely mistaken in saying that "these decisions also give sanction and support to the theory that the notice must be published in the newspaper at weekly intervals for thirty days, otherwise the election is void." On the contrary, nowhere do these decisions indicate how the thirty days notice shall be given except that it shall be given by publication in a newspaper.
It is a cardinal principle of construction that complicated or technical meaning will not be read into the language of a statute where the meaning is clear and unambiguous. It is also to be noted that in providing for statutory procedures if the Legislature intends anything beyond the ordinary meaning of the language used it will proceed to spell out its meaning.
II. The Board of Supervisors of Carroll County, Mississippi, at its November, 1951, meeting held an open hearing as contemplated by law.
We submit that the appellants diligently sought to bring themselves within the rule announced in the Miles case, 33 So.2d 810, and to lead the board into error by their suggestion through their attorney, after a full and fair hearing had already been afforded, records examined, witnesses examined and argument heard, that the Board might desire to act on the matter in private, but we submit that a fair examination of all the witnesses on this point will convince the Court that, far from being a "secret session" from which the public and the appellants in particular were excluded, the appellants and their attorneys voluntarily withdrew to allow the Board to vote.
III. The minutes of the Board of Supervisors of Carroll County, Mississippi, at its November, 1951, meeting reflected all necessary jurisdictional averments and adjudications to a valid meeting.
Again we find no fault with the general law cited by appellants under this point of their brief, but we submit that appellants are in the position of seeking to lift out of the minutes of the November, 1951, meeting of the board an isolated order, and because the same does not say within its own language that it was enacted in the courthouse at Carrollton to have this Court hold that the express will of the people, fully and freely expressed at the polls in this election should be defeated by reason thereof. Corburn v. Crittenden, 62 Miss. 862, Brigins v. Chandler, 60 Miss. 862, and Tierney v. Brown, 65 Miss. 563.
IV. There were no irregularities in the conduct of the election in issue which were either alleged or proved to have affected the final result or to have cast suspicion on the result as the freely expressed will of the electorate.
The Court should bear in mind that the appellants, in pointing out the irregularities complained of, at no point in the proceeding charged any fraud, misrepresentation or misleading of the voters, nor did they charge that the irregularities complained of prevented a full, fair and free expression of the public will, or that the result of the election would have been any different except for them. Pradat v. Ramsey, 47 Miss. 24; W.C. Barnes, et al. v. Board of Supervisors of Pike County, 51 Miss. 305; J.D. Steele v. W.M. Calhoun, 61 Miss. 556; W.B. Word v. E.L. Sykes, 61 Miss. 649; Shines v. Hamilton, 87 Miss. 384, 39 So. 1008: State ex rel. District Attorney v. Jones, 177 Miss. 598, 171 So. 678; Gregory v. Sanders, 195 Miss. 508, 15 So. 432; Hunt v. Mann, 136 Miss. 590, 101 So. 369; State ex rel. v. Greer, 158 Miss. 315, 130 So. 482; Trahan v. Simmons, 191 Miss. 353, 2 So.2d 575; Simmons v. Crisler, 197 Miss. 547, 20 So.2d 85; Sides v. Board of Supervisors of Choctaw County, 190 Miss. 420, 200 So. 595.
On November 5, 1951, petitions were filed with the board of supervisors of Carroll County asking that an election be held in the county for the purpose of determining whether the transportation, storage, sale, distribution, receipt and/or manufacture of beer and wine of an alcoholic content of not more than four per centum by weight should be excluded from the county, as provided for in Section 10208, Code of 1942, Chapter 224, Laws of 1942. The board of supervisors, after a hearing on the petitions, found that the petitions were duly signed by more than twenty per cent of the qualified electors of the county, and the board adopted an order providing that an election be held in the county on December 11, 1951, as provided for in the above mentioned statute, for the purpose of submitting to the qualified electors of the county the question whether or not the transportation, storage, sale, distribution, etc., of beer and wine, should be excluded from the county. The board in its order directed that the county election commissioners publish notice of the election for at least thirty days as provided by law, and make all necessary arrangements for the holding of the election.
The county election commissioners thereupon gave notice of the election by publication of a notice thereof in "The Conservative," a weekly newspaper published in the Town of Carrollton, in the four weekly editions of said newspaper published on November 9, 16, 23 and 30, 1951, and proof of publication of the notice was duly filed with the clerk of the board of supervisors. The election was held on December 11, 1951, as provided for in the order of the board of supervisors, and resulted in a majority of the qualified electors who voted in the election, voting in favor of the exclusion of the transportation, storage, sale, distribution, etc., of beer and wine from the county. The county election commissioners canvassed the returns of the election and certified the result thereof to the board of supervisors at an adjourned meeting of the board held on January 4, 1952. The board of supervisors thereupon adopted a formal order approving the report and formally ordering that thereafter the transportation, storage, sale, distribution, receipt and/or manufacture of beer and wine of an alcoholic content of not more than four per centum by weight, should be excluded from the county.
When the petitions were filed with the board of supervisors on November 5, 1951, asking for the holding of the election, the appellants herein appeared before the board, in person and by their attorneys, and requested that they be allowed additional time within which to check the petitions and verify the signatures. The board refused to grant the request, and immediately ordered the holding of the election. The appellants thereupon appealed from that order to the circuit court. The appellants again appeared before the board at its meeting on January 4, 1952, and filed objections to the report of the county election commissioners, in which they challenged the validity of the election on several grounds, and introduced evidence to support their charges of irregularities in the holding of the election. The board overruled the objections and the appellant prepared and had the president sign a bill of exceptions embodying their objections and the testimony taken thereon before the board of supervisors. After the adoption of the final order of the board of supervisors on January 4, 1952, the appellants filed a petition in the circuit court asking for the issuance of a writ of certiorari for a judicial review of the proceedings. The writ was granted and a transcript of the record, including a copy of appellants' bill of exceptions, was filed in the circuit court. At the May 1952 term of the court the appeal taken from the order of the board adopted on November 5, 1951, and the proceedings on the petition for certiorari were consolidated and heard together; and at the conclusion of the hearing the circuit judge found that the acts and proceedings of the board of supervisors were in all respects regular and valid and entered a judgment affirming the above mentioned orders of the board of supervisors. From that judgment the appellants have prosecuted this appeal.
The appellants' attorneys in their briefs argue four points as grounds for reversal on this appeal. The first point argued by them is that the circuit court erred in holding that the notice of the election held on December 11, 1951, was sufficient to constitute thirty days notice of the election as required by law; and in view of the conclusions that we have reached on that point it will not be necessary for us to consider the other points argued in the appellants' brief.
The order of the board of supervisors adopted on November 5, 1951, as stated above, provided that the election commisisoners should give notice of the election by publication of such notice for at least thirty days before the date fixed for the holding of the election.
Section 10208, Code of 1942, is silent as to the manner of giving notice of the election. But this Court has held in the case of Simpson County v. Burkett et al., 178 Miss. 44, 172 So. 329, that thirty days notice of the election must be given, as required by Section 310, Code of 1930, Section 3018, Code of 1942. And in the case of Henry v. Board of Supervisors of Newton County, 203 Miss. 780, 34 So.2d 232, 35 So.2d 317, the Court held that such notice must be given by newspaper publication. And the rule laid down in the above mentioned cases was cited and approved in the later case of Duggan et al. v. Board of Supervisors of Stone County, 207 Miss. 854, 43 So.2d 56. Therefore, the question that we have to consider here is whether the publication of the notice in the four weekly issues of the newspaper on November 9, 16, 23 and 30, 1951, was a sufficient publication of the notice to constitute publication of the notice for thirty days, as required by the rule laid down in the above mentioned cases. We think that it was not a sufficient publication.
In the case of Simpson County v. Burkett et al., supra, the Court said: "When a statute provides for an election submitting a matter or matters of county-wide policy to the voters of the entire county but prescribes only that the election thereunder shall be held under the election laws of the state and is silent as to the notice necessary to be given it becomes the duty of the court to resort to and apply such of the election laws as bear the closest analogy to the election provided for under the statute presently being considered, 59 C.J., p. 1041, et seq." See also Spencer v. Mayor and Board of Aldermen of Yazoo City, 3 Adv. S. 55, 60 So.2d 562. In the case of Henry v. Board of Supervisors of Newton County, supra, the Court, in construing Section 10208, Code of 1942, said that the statute contemplates that the publication of the notice of the election should be made in the usual and ordinary way that notices of county-wide matters are usually given.
In the case of Monroe County v. Minga et al, 127 Miss. 702, 90 So. 443, the Court had under consideration the question of the validity of a school bond issue election, which had been held in a consolidated school district under the provisions of Chapter 207, Laws of 1920. The election was held on November 2, 1920. The notice of the election had been published on October 8, October 15, and October 22, 1940. More than one week had elapsed between the last publication of the notice and the date of the election, and the Court held that the election was void. In its opinion in that case the Court said: "If more than one week were permitted to elapse before (sic) the last publication of the notice and the date of the election, why not two weeks or three weeks or a month or a year? How much time could elapse without rendering the election void? As it appears to the court, there is no halfway ground. Either the election must be held within a week of the last publication of the notice, or it may be held at any time subsequent to the last publication of the notice. The Court is of the opinion that the cases of Planters Mercantile Co. v. Braxton, and Maris v. Lindsey, supra, are decisive of this question in favor of the appellees."
In the case of Planters Mercantile Co. v. Braxton, 120 Miss. 470, 82 So. 323, the Court held that, under Section 2772, Code of 1906 (Sec. 888, Code of 1942), providing that lands sold under mortgages and deeds of trust shall be advertised for three consecutive weeks preceding such sale, it was necessary that publication be made for the three weeks next before the date of sale, and immediately preceding the day of sale. The Court in that case said that the word "preceding" meant "next before," and the Court held that the foreclosure sale was void because more than one week had elapsed between the date of the last publication and the day of sale. The rule laid down in the Planters Mercantile Co. case was reaffirmed in the case of Maris et al. v. Lindsey et al., 124 Miss. 742, 87 So. 13.
The Legislature in 1950 prescribed a uniform method of publication of notices of elections on county, municipal and school district bond issues. See Chapter 231, Chapter 241, and Chapter 443, Laws of 1950, And in each of these statutes it was expressly provided that such notices shall be published for three consecutive weeks, and that the first publication shall be made not less than twenty-one days prior to the date fixed for such election, and that the last publication shall be made not more than seven days prior to such date. These statutes and the above mentioned decisions of our own Court reflect a settled policy of the Legislature and the courts that notices of this character shall be published in each successive weekly edition of the newspaper until the election is held, and that not more than seven days shall intervene between the last publication of such notice and the election.
The appellee's attorneys cite, in support of their contention that the four publications made on November 9, 16, 23 and 30 was sufficient, the case of Henritzy v. Harrison County, 180 Miss. 675, 178 So. 322. But the notice involved in that case was a notice in the nature of judicial process. It was not a notice of an election on a question of county-wide interest such as we have here, and the decision in that case is in no way controlling here.
(Hn 1) When the law requires that thirty days notice of an election be given by newspaper publication, the first publication of the notice must be made at least thirty days prior to the election and the publication must be continued in each successive weekly issue of the newspaper until the date of the election, and not more than seven days should be allowed to intervene between the last publication of the notice and the election. Monroe County v. Minga et al., supra; Scott v. Paulen, 15 Kan. 162; Scalley v. Menninger (Fla.) 60 So. 180.
Inasmuch as another election must be ordered it is not necessary that we discuss the question argued by the appellants' attorneys concerning the adoption of the order of November 5, 1951, providing for the holding of the election. See Miles et al. v. Board of Supervisors of Scott County, 200 Miss. 214, 26 So.2d 541.
We are reluctant to reverse a case of this kind on the ground that the publication of the notice of the election was insufficient, but there is no other course that we can take, in view of the prior decisions of our own Court. And for the reasons stated above, the judgment of the lower court affirming and in effect upholding the order of the board of supervisors adopted on January 4, 1952, providing that the transportation, storage, sale, distribution, etc., of beer and wine of an alcoholic content of not more than four per centum by weight, shall be excluded from the county, is reversed and the cause remanded.
Reversed and remanded.
McGehee, C.J., and Lee, Ethridge and Lotterhos, JJ., concur.