Opinion
No. 33493.
January 23, 1939.
INTOXICATING LIQUORS.
Where county board of supervisors ordered clerk to give 30 days' notice of local option election and clerk failed to give notice but election commissioners gave notice which specifically referred to order of board authorizing notice, the notice was sufficient (Code 1930, section 310; Laws 1934, chapter 171.)
APPEAL from the circuit court of Yalobusha county; HON. JOHN M. KUYKENDALL, Judge.
Creekmore, Creekmore Capers, for appellants.
The election was held under provisions of Section 2 of Chapter 171 of the Laws of 1934. This statute has been construed a number of times by the Supreme Court but a case exactly in point on the facts is that of Simpson County v. Burkett et al., 178 Miss. 44, 172 So. 329. In that case the court held that thirty days notice is essential to the holding of a valid election on question of whether beer and light wines should continue to be sold in a county. The court held that Section 310 of the Code of 1930 controls as to the notice to be given. This section not only requires that the notice be given for thirty days but also that the notice be given by the board of supervisors.
The board of supervisors directed the clerk to give the notice by publication in the Coffeeville Courier and the North Mississippi Herald. The proof of publication shows that the clerk gave the notice only by publication in the Coffeeville Courier and that this notice was for less than thirty days. The clerk wholly failed to give notice by publication in the North Mississippi Herald, as directed by the order of the board of supervisors. Nor is the situation for the appellees helped by reason of the fact that, as shown by the record, the election commissioners gave notice by publication in the North Mississippi Herald for more than thirty days.
The vice in this notice as supporting the election lies in the fact that the notice was to be given by the board of supervisors under the statute, and they directed the clerk, and not the election commissioners, to give the notice. The clerk failed to give the notice as directed and the commissioners had no authority under the statute to give the notice that the statute required the board of supervisors to give.
An invalid or void election is not election.
Simpson County v. Burkett et al., 178 Miss. 44, 172 So. 329.
R.F. Kimmons, of Water Valley, for appellee.
The clerk was ordered to publish a notice for thirty (30) days, and the election commissioners of the county were also directed to give notice for thirty (30) days in some newspaper published in said county. The board of supervisors were doing everything possible to give all parties interested full notice of the election to be had. The clerk gave this notice to the publisher of the Coffeeville Courier which is published in the town of Coffeeville, Mississippi, and it was in reality published from July 20 until August 20, 1937, the election being held on the 24th of August. It is true in the proof of publication the publisher omitted the date July 29th. This is merely an over-sight and we find that the board of supervisors certified that this publication was had in the North Mississippi Herald and in the Coffeeville Courier for more than thirty (30) days before said election.
The proof of publication in the North Mississippi Herald which was a paper having general circulation in the county shows that the notice of the election commissioners was published on the 22nd day of July, the 29th day of July, and the 5th, 12th, and 19th, days of August in 1937.
We contend that after the notice was given in the newspaper having general circulation in the county for the required length of time by the election commissioners after having been ordered so to do by the board of supervisors, or whether so ordered or not, it is sufficient. It is perfectly evident that the board of supervisors were trying in every way possible to let every voter know that the election was to take place and when, and the fact that the clerk failed, if indeed he did fail to get the proof of his publication of notice before the board in perfect legal form should not and cannot affect the election. The notice given by the election commissioners by order of the board of supervisors was strictly according to law as shown by the record.
In the various decisions of this court it appears that sometimes the notice was given by the clerk and sometimes by the election commissioners. In the case of Simpson County v. Burkett, 178 Miss. 44, the notice was given by the commissioners of election. And while the court held that the notice had not been published for a sufficient time, there is no hint of a criticism of the commissioners in giving the notice. The statute is silent as to how the notice should be given or by whom, but the court did hold that the court should apply the laws bearing closest analogy to the procedure. If this be true we believe that the election commissioners should give the notice. In election to fill vacancies in office the law provides that the commissioners shall give the notice.
Sections 6263, 6265, 6266 and 6275, Code of 1930.
In the case of Martin v. Board of Supervisors, 178 So. 315, the court holds that the finding of a jurisdictional fact by the board of supervisors is conclusive, and the board of supervisors in this case has passed on the question as to whether or not publication was properly made.
Without a proper bill of exceptions the circuit court had no jurisdiction, appeal should have been dismissed.
Yandell v. Madison County, 79 Miss. 212.
The board of supervisors of Yalobusha County on July 16, 1937, a day of its regular session in that month, ordered that the question of the prohibition of the sale of beer and light wines in the county be submitted to an election to be held on August 24, 1937. The board ordered the clerk to give thirty days' notice of the election, and the order contained also the following: "The Election Commissioners of said county are hereby directed to hold and conduct said election in all respects as required by law, after giving thirty (30) days notice in some newspaper published in said county."
The clerk did not give the notice, but the election commissioners did so by publishing the following notice in the North Mississippi Herald, a public newspaper of the county, on July 22, July 29, August 5, August 12, and August 19, 1937:
"To the Qualified Electors of Yalobusha County, Mississippi.
"By order of the Board of Supervisors of said county, entered on the 16th day of July, 1937, as will appear by reference to the Minutes of said Board of that date, notice is hereby given that on the 24th day of August, 1937, an election will be held in said county for the purpose of determining whether or not the transportation, storage, sale, distribution, receipt or manufacture of beer and wine as provided in Chapter 171 of House Bill 26 of the Acts of the Legislature of 1934, shall be excluded from Yalobusha County, Mississippi. All qualified electors of said county should take notice of this election and cast their ballots for or against said proposition as they may desire.
"This July 16, 1937.
"Robt. Speir "W.A. Nolen "Afton Smith "Election Commissioners"
The only point raised is the contention that, under Section 310, Code 1930, the notice must be given by the board of supervisors and not by the election commissioners. When, as here, the board directs the election commissioners to give the notice, and the notice by the commissioners specifically refers to the order of the board as the authority by which it is given, this is entirely sufficient. It was not necessary that two notices be given, or that the notice appear in more than one public newspaper of the county.
Affirmed.