Opinion
February 28, 1949.
1. Board of supervisors — minutes — order in local option beer and wine election — stare decisis.
It having been held in previous cases covering a period of more than eleven years that the order of the board of supervisors ordering a local option beer and wine election under what is now Sec. 10208, Code 1942, is not invalid when there was a failure of the order to recite that there had been no election on that issue in the county within the past five years and the decisions having been generally relied on and followed by all concerned, and are not manifestly wrong or mischievous in operation, the court will continue to adhere to them, although the jurisdictional point was not specifically raised therein.
2. Board of supervisors — time of regular meetings in counties having no judicial districts.
The general statute fixing the first Monday in each month as the time for the regular meetings of the board of supervisors is not to be applied to counties having two judicial districts but the special provisions of the statutes dealing with the meetings when there are two judicial districts in the county are to be applied.
3. Officers — presumption of performance of duty — applicable to minutes of meetings of board of supervisors.
In the absence of proof to the contrary it will be presumed that public officers have performed their duty in the manner required by law, a presumption which applies to the minutes as to the meetings of boards of supervisors thereby placing the burden upon the person who challenges the legality thereof to show that the meeting was illegal.
4. Board of supervisors — regular meetings in counties of two judicial districts — minutes — presumptions in aid of.
When under a special statute applicable to a county of two judicial districts the board of supervisors is authorized to hold its regular meeting in the second district thereof on the second Monday of each month upon the previous entry of a general order to that effect, it will be presumed in the absence of any showing to the contrary that such an order has been duly made and entered, and that therefore the failure of the minutes at any particular meeting on the second Monday to recite that the meeting at that time was so authorized will not invalidate the proceedings when there is no showing to rebut the presumption.
5. Certiorari — evidence admissible to make manifest error committed by inferior tribunal.
In a certiorari proceeding the court may hear evidence which will make manifest error of law committed by inferior tribunal; wherefore on such a proceeding it may be shown that no general order was entered by board of supervisors of a county of two judicial districts authorizing the holding of the regular meetings of the board in the second judicial district on the second Monday of each month, and on the failure so to show the presumption stands that such a general order was duly made and entered.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Panola County, JNO. M. KUYKENDALL, J.
McClure Fant, for appellant.
The appellant's petition for the writ of certiorari was filed and the writ was granted on February 11, 1948 About three weeks later this court handed down its first opinion in the case of Henry v. Newton County, 34 So.2d 232, 35 So.2d 317, wherein it was held that it was not necessary for the board to make any adjudication or recitation with reference to prior election on the beer question.
We respectfully submit that the decision in that case conflicts with numerous prior decisions of this court; that it is unsound; and that, therefore, it should be overruled.
The statute (Section 10208 of the 1942 Code) places a very definite limitation upon the power of a board of supervisors to order a beer election. The statute says: "No election on the (beer) question shall be held in any county oftener than once in five years". It follows, therefore, that a board of supervisors has the power, or jurisdiction, to order a beer election only in an instance where a period of five years has elapsed since the most recent valid beer election.
The precise question presented in the case at bar is simply this: In passing upon the validity of a "beer election" order which is absolutely silent on the 5 year proposition, is it permissible to presume that a period of five years had elapsed since the most recent valid beer election?
It is undoubtedly true that when the minutes of the board adjudicate the existence of a certain fact, there arises a presumption that that fact actually does exist. But where the minutes fail to adjudicate the existence of a fact — and especially a fact which the applicable statutes specify must exist as a condition precedent to the board's power to act — there is no presumption of any kind.
In the case of Adams v. Bank, 103 Miss. 744, 60 So. 770, this court cited a long line of cases which hold that, inasmuch as a board of supervisors is a court of special and limited jurisdiction, its orders "must set out sufficient facts to show that it had jurisdiction", and that "nothing can be presumed in favor of the order".
Later, in the case of Aden v. Issakuena County, 142 Miss. 696, 107 So. 753, this court had occasion to reiterate its prior statement that "Nothing can be presumed in favor of the jurisdiction of the Board".
The order now under review sets out in minute detail exactly what facts the board took into consideration in arriving at its decision that it had power to call the election. The order shows that the board's inquiry was limited to the sole question of whether or not 20% of the qualified electors had signed the petition. Here is exactly what the board says that it did:
"The board of supervisors carefully examined said petitions and heard testimony offered on behalf of said petitioners with respect to the signing of said petitions and the qualifications of the signers of said petitions. The board of supervisors examined the poll books of the county and heard and considered other evidence, both oral and documentary, for the purpose of determining whether or not said petitions are in fact signed by twenty per cent (20%) of the qualified electors of the County".
The minutes show that, after having determined that one question in the affirmative, the board proceeded, without further ado, to order "that an election be held in said Panola County on Tuesday, the 27th day of January, 1948". Therefore, it is only reasonable to conclude that the board failed to take into account the 5 year limitation. That, we submit, is the rule deducible from the cases which we shall now discuss.
In the case of Lowndes County v. Ottley, 146 Miss. 118, 112 So. 446, this court had under review an order of the board of supervisors of Lowndes County authorizing the issuance of certain school bonds. The statutes there involved was section 189 of Chapter 283 of the Laws of 1924 which reads as follows: "No . . . school district . . . shall issue bonds . . . to an amount that added to the outstanding bonded or floating debt of such . . . district . . . will amount to more than fifteen per cent of the assessed value of the taxable property in such . . . district."
The order adjudicated that the amount of the proposed bond issue did not exceed 5% of the assessed value of the taxable property in the district. It was silent, however, as to whether or not the district had any outstanding bonded or floating debt; and, consequently, it was silent also as to whether or not the proposed bond issue would increase the district's total debt beyond the 15% limitation. In that case the court applied the established rule governing judgments of courts of special and limited jurisdiction, and said: "It nowhere appears on the face of the record what, if any, the amount of this outstanding debt is, or that this debt, when added to the proposed bonds, will not amount to more than 15 per cent of the assessed value of the taxable property of the district, and in the absence of an adjudication of this necessary jurisdictional fact the board of supervisors was without authority to proceed to direct the issuance of the bonds." If the fact of observance of the 15% limitation on a bond issue is a "necessary jurisdictional fact", the conclusion seems to us to be inescapable that the fact of observance of the 5 year limitation on beer elections in also a "necessary jurisdictional fact".
The case just discussed does not stand alone. See also the case of West v. Waynesboro, 152 Miss. 443, 119 So. 809, and Broom v. Jefferson Davis County, 171 Miss. 586, 158 So. 344; Lee v. Hancock County, 181 Miss. 847, 178 So. 790, and Brown v. Simpson County, 185 Miss. 216, 187 So. 738.
It will be observed that in the cases just cited the court did not indulge the presumption that, inasmuch as no outstanding indebtedness was mentioned in the orders, there actually was no outstanding indebtedness. In all of those cases — and without a single dissent — the court applied the established rule governing judgments of courts of special and limited jurisdiction, and in so doing held that such judgments must contain not only an adjudication of the existence of every fact which the statutes require to exist, but must also contain an adjudication of the non-existence of every fact which the statutes provide must not exist.
There is a very sound reason why the rule applicable to bond issues should be applied even more strictly to a beer election, the reason being that a beer election renders unlawful and criminal that which previously was perfectly legal. As shown by the bond issue cases cited above, it has been the established rule in Mississippi for many years that an order of a board of supervisors must adjudicate the existence of all facts which are required to exist as a condition precedent to its power to act — even facts of a negative character, such as the fact that a proposed bond issue will not increase a county's debt beyond the statutory limitation. Therefore, it is inconceivable to us that this court should now feel justified in discarding such a well established rule simply because the point was overlooked by counsel and by the court in the case of Martin v. Winston County, 181 Miss. 363, 178 So. 315.
The term "jurisdictional fact" is used in many of the cases as a convenient means of describing a fact which the applicable statute states must exists as a condition precedent to the tribunal's power to act. As shown above, this court has repeatedly held that the fact of observance of a debt limitation statute is a jurisdictional fact even though it be a fact of a negative character. Since there is no reasonable basis for distinguishing between a debt limitation statute and a statute limiting the frequency of beer elections, it follows that the fact of observance of the 5 year limitation on beer elections is also a jurisdictional fact.
In the comparatively recent "beer election" case of Costas v. Lauderdale County, 198 Miss. 440, 22 So.2d 229, this court pointed out that the procedure prescribed by statute for the issuance of bonds is quite similar to the procedure prescribed by statute for the exclusion of beer, and it held that the same rules are applicable to both procedures. We have cited numerous cases which state very definitely the rule applicable to bond issues. That rule is that all facts — even facts of a negative character — upon the existence of which depends the board's power to act, must be adjudicated in the board's order. The application of that rule to a "beer election" case will result in a holding that, before the board may order an election, it must adjudicate that five years have elapsed since the most recent valid election on the question.
Panola County was divided into two districts by Chapter XXV of the Laws of 1880, Pages 145-149. Section 12 of that chapter reads as follows: "The said board of supervisors of said county shall alternately hold their sessions or meetings at Sardis and Batesville respectively, the seats of justice of the aforesaid first and second districts — holding their first meeting at Sardis, and their jurisdiction shall extend over the entire county as if it were not divided into separate districts."
Several statutes have been enacted which give the board of supervisors of each of the two-district counties in the State the right, if it sees fit so to do, to enter an order designating when, where and how often it shall hold meetings. In this connection see Section 2876 of the Code of 1942 and the statutes therein mentioned, together with those listed at the conclusion thereof as "Sources". We do not find, however, any statute which specifies that the board of supervisors of Panola County shall meet other than as set forth in Chapter XXV of the Laws of 1880; and certainly there is nothing in the 1880 statute which specifies that the board may hold a meeting at Batesville on the Second Monday of each month.
It is true that Section 2876 of the Code of 1942 provides that in those two-district counties "where the board of supervisors elects to hold two regular meetings in each month", a meeting may be held in the Second District on the Second Monday of each month. But there is nothing in that section to indicate whether the board of supervisors of Panola County has elected "to hold two regular meetings in each month" or whether Panola County is one of those two-district counties "where only one regular meeting of the board of supervisors is held in each month". We invite the appellee to point out any law which, by its own terms and independently of any affirmative action on the part of the board, specifies that the board of supervisors of Panola County shall, or even may, meet at Batesville on the Second Monday of the month. There is no such law. As a matter of fact there is nothing in Section 2876 nor elsewhere in the Code of 1942 which specifies when, where and how often there may be a regular meeting of the board of supervisors of any of the two district counties in the State. The time, place and number of meetings in two-district counties are not fixed by any statute, but are to be fixed by affirmative action on the part of each individual board. It follows, therefore, that the minutes involved in the case at bar are wholly in error when they recite that the Second Monday at Batesville is "the time and place fixed by law" for the holding of its meetings.
It is quite elementary that there are no presumptions in favor of the validity of a judgment of a court of special and limited jurisdiction; and a judgment of such a court must stand or fall on the basis of the facts adjudicated in the minutes of the meeting or session at which the judgment was rendered. Applying this rule to the case at bar, the validity of a judicial order adopted at a meeting of the Panola County board held at Batesville on a Second Monday may be sustained only when the minutes of the meeting show affirmatively that the board had jurisdiction to meet and act at that time and place. If, as the appellee contends, the board has legally elected to hold two meetings each month, then the fact of that election must be recited in the minutes of each meeting at Batesville on a Second Monday — for without such a recitation the minutes will fail to disclose any lawful authority for the meeting and any judicial order adopted at such a meeting will be void on its face.
John W. Kyle, for appellee.
Appellant's attorneys, in their assignment of errors and in their brief, have alleged as grounds for reversal of the judgment of the lower court two points, which are stated by them as follows:
Point 1. That the orders of the board of supervisors are void because the minutes show that the board of supervisors failed to take into account the provision of the statute that "no election on the (beer) question shall be held in any County oftener than once in five years."
Point 2. That the orders are void because the minutes fail to show any lawful authority for holding the meetings at which the orders were adopted.
Appellant's attorneys in their brief admit that Point 1 has been decided against them by this court in the case of Henry v. Board of Supervisors of Newton County, 34 So.2d 232, 35 So.2d 317, in which opinions were rendered on March 8, 1948, and May 10, 1948.
If appellant's contention as set forth in Point 2 of his brief is sustained by this court, all acts and proceedings of the board of supervisors of Panola County (and perhaps other "two court district" counties) during the last thirty-five years are void.
A meeting of the board of supervisors not affirmatively shown to have been illegal is presumed to have been legal. Isabella Brigins et al. v. D.W. Chandler, 60 Miss. 862; W.H. Corburn v. O.B. Crittenden, 62 Miss. 125; Tierney v. Brown et al., 65 Miss. 570, 5 So. 104.
In the case of Tierney v. Brown et al., supra, the court said: "It is true that the meeting of the board of supervisors in October, 1879, at which they accepted and approved the land roll, was not a time authorized by law for a regular meeting, but it is not shown that it was not a special meeting such as might have been legally called and held at that time, and meetings of boards of supervisors not affirmatively shown to have been illegal are presumed to have been legal. Corburn v. Crittenden, 62 Miss. 125; Brigins v. Chandler, 60 Miss. 862."
The case of the City of Greenwood v. Jones, 91 Miss. 728, 46 So. 161, which is cited by appellant's attorneys in their brief, does not in any way support the view that they seek to maintain in their argument. In the opinion rendered by the court in that case, Judge Calhoon said: "Another objection by counsel for appellee, in which only he had the concurrence of the court below, is that the ordinance is void because the caption of the minutes of the meeting at which the ordinance against the unlawful sale of liquor was passed does not show affirmatively that the meeting was held at the time and place fixed by law for holding it, further than to show it was on the first Tuesday of August and at the city hall generally . . . It is agreed that the mayor's office was in the city hall, and it is certain that the ordinance was produced in this proceeding on this trial, and our judgment is that it was held at the proper time and at the proper place, under the facts of this case, and that such presumption remained until the defendant showed that the meeting was not so held. Under the circumstances here shown, the presumption is that the procedure was legal. This is not a case for the application of doctrines which apply to tribunals of limited and special jurisdiction, or tribunals exercising jurisdiction under limited and special power, because here there was the exercise of jurisdiction general for the establishment of public laws adapted to the municipality."
The objection was made in the above mentioned case that the minutes of the meeting at which the ordinance was passed did not show affirmatively that the meeting was a regular meeting of the board of supervisors, that it was held on the second Monday, being the 9th day of February, 1948, at the courthouse, in the Town of Batesville, in the Second Court District of Panola County, being the time and place fixed by law for the holding of same.
Appellant filed in the circuit court a petition for a writ of certiorari to review the proceedings of the board of supervisors of Panola County, whereby there had been excluded from said county, pursuant to an election held therein, the transportation, storage, sale, distribution, receipt and manufacture of beer and wine. The writ was issued and upon a review of the proceedings the lower court dismissed the petition, quashed the writ, and affirmed the orders and proceedings of the board of supervisors, from which action this appeal is taken.
Section 10208 of the Mississippi Code of 1942 makes detailed provision for the holding of an election in any county of the state, upon a petition of 20% of the qualified voters of the county, to determine the question whether the transportation, sale, etc., of such beverages shall be permitted therein, and provides that no election on this question can be ordered more often than once in five years. It is contended by appellant's first assignment that it is essential to the jurisdiction of the board of supervisors to order such an election that it must affirmatively adjudicate the fact to be that no such election has been held within the past five years, and that, since there is no such adjudication in the proceedings in this case, the same are void.
In the case of Henry v. Board of Sup'rs of Newton County, Miss., 34 So.2d 232, and Miss., 35 So.2d 317, not yet reported in the State Reports, this Court decided this specific point contrary to the contention of appellant. Appellant contends, however, that this decision is unsound and should be overruled, and specifically points out that in the case of Martin v. Board of Supervisors of Winston County, 181 Miss. 363, 178 So. 315, upon which the decision in the Henry case rests in part, there was not raised nor passed upon by the Court the question whether it is a necessary jurisdictional fact to be adjudicated by the board of supervisors that no election on beer and wine has been held within the past five years. While it is true that the specific point was not mentioned in the Martin case, nevertheless the Court did set out in detail the orders and proceedings of the board and did say, as pointed out in the Henry case [35 So.2d 317], "We find no error in the orders of the board dealing with this election, in any part of the proceedings, which would render their action void." (Hn 1) The Martin case was one of the early decisions on the subject of outlawing beer and wine by local option election, having been decided only about three years after enactment of the law authorizing such elections. It has stood as the law of this state for more than eleven years and has been relied upon and followed by the boards of supervisors in a great many counties of Mississippi where the transportation, sale, etc, of wine and beer has been outlawed, and upon whose action numerous persons have been convicted and punished in our criminal courts. We cannot say that either of these decisions is manifestly wrong or mischievous in operation, and therefore we are bound to adhere to them as being the established law of this state.
The second and last assignment is that the orders of the board of supervisors are void because they fail to show any lawful authority for holding the meetings at which the orders were adopted. These orders were adopted in November and December, 1947, and in February, 1948, at meetings of the board held in the second district of the county on the second Monday in each of these months. Except as to the difference in dates, the minutes of the organization of the board are identical and recite as follows:
"State of Mississippi | Board of | Batesville, Mississippi "Panola County Supervisors' February 9, 1948 "Second Court District | Court | Regular February 1948 | Meeting.
"Monday, February 9, 1948.
"Be It Remembered that, on this day and date, same being the second Monday and the 9th day of February, 1948, and being the time and place fixed by law for the holding of same, a regular meeting of the board of supervisors of Panola County, in the State of Mississippi, was begun and held at the courthouse in the Town of Batesville, in the Second Court District of Panola County, Mississippi, commencing at nine o'clock A.M., when and where there were present the following members of the board of supervisors and officers, to-wit . . .".
It is contended by appellant that the orders are void because of the failure of the minutes to adjudicate the existence of any special fact which would authorize the board to meet when and where it did since under the general law of this state boards of supervisors are required to hold their regular meetings on the first Monday in each month. (Hn 2) This requirement, however, applies only to counties having one court district, Section 2875, Mississippi Code of 1942, and the next section provides that in counties having two court districts the board shall likewise hold regular meetings on the first Monday in each month, and, where only one meeting is held in each month, the January meeting shall be held in the first district, the February meeting in the second district, and that the meetings shall alternate thereafter, such meetings to be held on the first Monday of the month; this section further provides that in counties having two court districts the board of supervisors may hold two regular meetings in each month, meeting on the first Monday in the first district, and on the second Monday in the second district, and, if they elect to hold two regular meetings in each month, the board shall enter an order upon its minutes to that effect and shall give five days notice thereof, and after giving such notice the board shall hold regular meetings in each month in each district as provided in this section. Section 2876, Mississippi Code of 1942.
By Chapter XXV of the Laws of 1880, Pages 145-149, Panola County was divided into two court districts, and by section 12 of this Act it was provided that: "The said board of supervisors of said county shall alternately hold their sessions or meetings at Sardis and Batesville respectively, the seats of justice of the aforesaid first and second districts, holding their first meeting at Sardis, and their jurisdiction shall extend over the entire county as if it were not divided into separate districts."
It will be noted that by this act the supervisors were not required to hold alternate monthly meetings, but only to hold alternate meetings. If the board elected to hold two regular meetings each month pursuant to authority of the aforesaid Code Section 2876, these meetings were still to be held alternately. Therefore, there is no prohibition of two regular monthly meetings in the Act which created the county into two districts.
The appellant here does not contend that the board of supervisors of Panola County did not by proper order and notice elect to hold two regular monthly meetings, one on the first Monday at Sardis in the first district, and the other on the second Monday at Batesville in the second district. What appellant here contends is limited to the narrow point that the minutes of every regular meeting of the supervisors at Batesville in the second district should affirmatively adjudicate the fact to be that the board has theretofore elected to hold and has given notice of its intention to hold two regular meetings in each month, and that by failing to so adjudicate at each and every meeting its acts, as reflected by its minutes, are void. With that contention we do not agree.
(Hn 3) It is the settled law of this State that, in the absence of proof to the contrary, it will be presumed that public officers performed their duty in the manner required by law. This was held as early as 1848 in Wray v. Doe, 10 Smedes M. 452, and as recently as 1947 in Slush v. Patterson, 201 Miss. 113, 28 So.2d 738, 29 So.2d 311.
It has been held that this presumption applies to minutes of meetings of boards of supervisors, and that the burden is upon the person challenging the legality thereof to show that the meeting was illegal. In the case of Tierney v. Brown, 65 Miss. 563, 5 So. 104, 105, 7 Am. St. Rep. 679, this court said: "It is true that the meeting of the board of supervisors in October, 1879, at which they accepted and approved the land-roll, was not at a time authorized by law for a regular meeting, but it is not shown that it was not a special meeting such as might have been legally called and held at that time, and meetings of boards of supervisors not affirmatively shown to have been illegal are presumed to have been legal. Corburn v. Crittenden, 62 Miss. 125; Brigins v. Chandler, 60 Miss. 862."
In the case of Board of Supervisors of De Soto County v. Jones, 103 Miss. 602, 60 So. 655, 656, it was said: "On the face of the present contract, we cannot assume that the board exceeded its authority; on the contrary, we assume that it was within its powers, in the absence of clear proof to the contrary."
In Scott County v. Dubois, 158 Miss. 245, 130 So. 106, 107, it was said: "The rule is that facts to avoid a judgment will not be imported into it by way of inference unless the invalidating inference be obvious and reasonably inescapable. The rule is rather, in the matter of inferences, that those will be drawn, where reasonably possible, which will conform to the presumption of things rightly done in official action, especially in matters of the making and entry of official judgments. The board had jurisdiction of the subjectmatter and of the parties, and there are sufficient of facts recited to show that it had jurisdiction to act as it did act. What is attempted is to avoid its jurisdiction by the injection of adverse inferences, and this can no more be done by inference only, in respect to a court of limited jurisdiction, than can be in regard to a court of general jurisdiction." (Hn 4) Applying the foregoing principles, we know that Panola County is divided into two court districts, that the county site of the second district is in Batesville, that the law authorizes the board to elect to hold a regular meeting in Batesville on the second Monday in each month, and we are asked by appellant to apply an inference that it had no authority to hold such a meeting because the minutes here in question do not affirmatively show that the board had theretofore so elected. This we cannot do. If the board had not in fact so elected, the burden was upon appellant to so show and to thereby establish the invalidity of the meeting at Batesville on the second Monday. The appellant did not undertake to show that the board had not elected to hold regular meetings at Batesville on the second Monday in each month, and consequently wholly failed to meet the burden of proof which the law of this state places upon him.
(Hn 5) We do not overlook the fact that certiorari is a statutory remedy designed for the purpose of bringing into review the acts of an inferior tribunal upon the record made by such tribunal on questions of law, Sections 1206, 1207, Mississippi Code of 1942, but this court has held that upon the hearing in the reviewing court evidence may be heard to make manifest the error of law committed by the inferior tribunal. In the case of Gulf S.I.R. Co. v. Adams, 85 Miss. 772, 38 So. 348, 349, it was said, "It is the peculair province of the writ of certiorari to correct errors of law apparent upon admitted or established facts. 4 Ency. Pl. Pr. 11. It has been held by this court that evidence may be heard in the circuit court in order to make manifest error of law committed by the inferior tribunal. Robinson v. Mhoon, 68 Miss. 712, 9 So. 887."
Under this authority the appellant had the right to show, if he could, that the board of supervisors of Panola County had never adopted an order for the holding of a regular meeting at Batesville in the second district on the second Monday of each month, and the burden was upon appellant so to do. Having failed to meet that burden we find no merit in his second contention.
We may add, in conclusion, that the clerk of the board of supervisors, in making up the record pursuant to the writ of certiorari, included therein a certified copy of an order adopted by that board on May 4, 1914, pursuant to Chapter 236 of the Laws of 1914, declaring that thereafter the board would hold two regular meetings each month, the second being in the second district on the second Monday in each month, and also included therein a certified copy of an order adopted by the board on September 7, 1936, pursuant to Section 201 of the Mississippi Code of 1930, which is the same as Section 2876 of the 1942 Code, reiterating its intention to hold two regular meetings each month, the second being at Batesville, in the second district, on the second Monday, and directing the clerk to give notice of such intention as provided by said statute, and also included therein a certified copy of an order adopted by said board on October 5, 1936, adjudicating the fact to be that said notice had been duly given, and ordering that thereafter two regular meetings of the board would be held each month, the first being on the first Monday at Sardis in the first district, and the second being at Batesville on the second Monday in the second district. In the circuit court, the appellant moved the court to strike these orders from the record, which motion was sustained, and the orders were disregarded in the court below. In our decision of this case we have found it unnecessary to consider these orders or to review the action of the circuit court in striking them from the record, since the burden was upon appellant to show that there were no such orders or that they had been repealed or rescinded by subsequent action of the board of supervisors prior to the orders outlawing beer and wine in Panola County. The judgment of the lower court is therefore affirmed.
Affirmed.