Summary
In Costas v. Board of Supervisors of Lauderdale County, 198 Miss. 440, 22 So.2d 229 (1945), this Court held that the first objection and hearing on a petition in a beer election did not estop other parties from obtaining a hearing after the election.
Summary of this case from Thornton v. Wayne County Election CommissionOpinion
No. 35852.
May 14, 1945. Suggestion of Error Overruled June 11, 1945.
1. INTOXICATING LIQUORS.
Adjudication by board of supervisors as to sufficiency of signatures to petition seeking election to determine whether traffic in light wines and beer should be excluded from county was interlocutory only, and the entire cause, including such issue, was on competent protest required to be adjudicated by the board upon trial after the election before final order of exclusion could be entered (Laws 1934, chap. 171, as amended by Laws 1942, chap. 224).
2. INTOXICATING LIQUORS.
Taxpayers of county were not estopped from protesting order of board of supervisors excluding traffic in light wines and beer in county following election on such issue on ground that petition for election did not contain required 20 per cent. of qualified electors of county because other taxpayers who were not in privity with present protestants had appeared before board of supervisors and contested sufficiency of the petition when board adjudicated it sufficient, where hearing on original petition did not close question as to sufficiency of petition, and present protestants had no legal notice of original hearing and did not participate therein.
3. INTOXICATING LIQUORS.
The statute authorizing election to determine whether liquor traffic "shall not be permitted" makes no provision for notice to anybody interested except the notice to electors by board of election commissioners concerning the holding of the election, and such notice thereafter brings into the situation everybody affected thereby, and those failing thereafter before final judgment to seek to contest any phase of the issues would be estopped (Laws 1934, chap. 171, as amended by Laws 1942, chap. 224).
4. INTOXICATING LIQUORS.
Board of supervisors were required to allow protestants a hearing on issue whether petition for an election to determine whether traffic in light wines and beer should be excluded from county contained required 20 per cent. of qualified electors of county after holding of the election and prior to entry of final order of exclusion (Laws 1934, chap. 171, as amended by Laws 1942, chap. 224).
ROBERDS, J., and SMITH, C.J., dissenting.
APPEAL from the circuit court of Lauderdale county, HON. JESSE H. GRAHAM, Judge.
W.E. Gore and Forrest B. Jackson, both of Jackson, for appellants.
The decision of a question on a former appeal is the law of the case on a subsequent appeal in the same case.
Costas v. Board of Sup'rs of Lauderdale County, 196 Miss. 104, 15 So.2d 365, 16 So.2d 378; McDonald v. Green, 9 Smedes M. (17 Miss.) 138; Johnson v. Success Brick Machinery Co., 104 Miss. 217, 61 So. 178, 62 So. 4; Yazoo M.V.R. Co. v. Adams, 77 Miss. 194, 28 So. 956, 60 L.R.A. 33, 180 U.S. 1, 21 S.Ct. 240, 45 L.Ed. 395, 181 U.S. 580, 21 S.Ct. 729, 45 L.Ed. 1011; Pennington v. Purcell, 155 Miss. 554, 125 So. 79; Reed v. Norman-Breaux Lumber Co., 149 Miss. 395, 115 So. 724, 278 U.S. 556, 49 S.Ct. 14, 73 L.Ed. 503; Gulf S.I.R. Co. v. Simmons, 153 Miss. 327, 121 So. 144.
The principles involved in the doctrine of "the law of the case" are more binding than the law of precedent, and a decision on the question of law, on a former appeal of the same case, will be adhered to on a subsequent appeal, although it is erroneous.
Reily v. Crymes, 176 Miss. 133, 168 So. 267; Mississippi Power Light Co. v. Pitts, 181 Miss. 344, 179 So. 363; Washington Bridge Co. v. Stewart, 3 How. 413, 11 L.Ed. 658; Roberts v. Cooper, 20 How. (U.S.) 467, 481, 15 L.Ed. 969.
The doctrine of the law of the case has been long recognized as a fundamental rule of our legal system and it is of universal application, where the facts on the second trial are substantially the same as on the first.
Johnson v. Success Brick Machinery Co., supra; Stewart v. Stebbins, 30 Miss. 66; Mutual Life Ins. Co. v. Hill, 193 U.S. 551, 24 S.Ct. 538, 48 L.Ed. 788; United States v. Camou, 184 U.S. 572, 24 S.Ct. 505, 46 L.Ed. 694; Thompson v. Maxwell Land Grant Co., 168 U.S. 451, 18 S.Ct. 121, 42 L.Ed. 539; Great Western Telephone Co. v. Brunham, 162 U.S. 339, 16 S.Ct. 850, 40 L.Ed. 991.
The law of the case is distinguished from stare decisis, in that the latter is the rule of precedent, holding that a certain case is authority on the principle it announces, for all other cases based on a similar statement of facts. Such a case may be overruled whenever its principle is decided to be erroneous, but the law of the case can never be overruled or used as a precedent.
Allen v. Bryant, 155 Cal. 256, 100 P. 704; Wixson v. Divine, 80 Cal. 385, 22 P. 224.
See also Washington Bridge Co. v. Stewart, supra; Martin v. Hunter, 1 Wheat. 304; Sibbald v. United States, 12 Pet. 488; Aspen Mining Co. v. Billings, 150 U.S. 31; Stewart v. Salamon, 97 U.S. 361; Humphrey v. Baker, 103 U.S. 736; Texas Railroad Co. v. Anderson, 149 U.S. 237.
When the trial court fails or refuses to obey or give effect to the mandate of the reviewing court, or misconstrues it or acts beyond its province in carrying it out, it becomes the province and duty of the appellate court to enforce compliance therewith.
Sibbald v. United States, supra; Galbreath v. Wallrich, 48 Colo. 127, 109 P. 417, 139 Am. St. Rep. 263; Williams v. Buffy, 102 U.S. 248, 26 L.Ed. 135; Tyler v. Magwire, 17 Wall. 253, 21 L.Ed. 576; Martin v. Hunter, supra.
In a situation such as this is, the original proceedings on the prior appeal are before the court on a second appeal, so far as it is necessary to determine whether or not there are any new points in controversy, which were not terminated by the original judgment. But in this case the original papers and Supreme Court record on the former appeal were expressly made a part of the bill of exceptions on this appeal.
See Mitchell v. United States, 15 Pet. 52, 10 L.Ed. 658; The Santa Maria, 10 Wheat. 431, 6 L.Ed. 359.
It is manifest, from this record, that the whole proceeding is void and that there is a purpose to enforce prohibition of the sale of light wines and beer in Lauderdale County without regard to the law. The board had no power to adopt the ordinance of prohibition except upon compliance with the statute which requires that an election be held upon petition of 20 percent or more of the qualified electors.
Code of 1942, Sec. 10208, Laws of 1942, Ch. 224.
After this case was reversed, the procedure was the same as at the outset. The petitioners should have established, by proof, and the board should have adjudicated that the petitions did or did not bear 20 percent or more of the signatures of the qualified electors of Lauderdale County. If we could have shown that they did not, the board should have adjudicated that it had no jurisdiction to call the election and should have followed this with an order rescinding the ordinance prohibiting the sale of wine and beer.
An adjudication to the effect that the petitions contained the signatures of 20 percent or more of the qualified electors was jurisdictional.
Simpson County v. Burkett, 178 Miss. 44, 172 So. 329; Martin v. Board of Sup'rs of Winston County, 181 Miss. 363, 178 So. 315.
The statute does not authorize the board to overthrow a lawfully adopted act of the Legislature, legalizing the sale of wine and beer (Section 10207, Code of 1942, Ch. 171, Laws of 1942), in its unlimited discretion. And there is no difference between this and what counsel for appellee here maintain. The jurisdiction is not discretionary or unlimited. The board cannot reject proof showing the want of jurisdiction to call the election, at its discretion, and exercise unlimited jurisdiction. Its ordinance cannot nullify the act of the Legislature without complying with the statute under which it pretends to act, and in defiance of it.
Lester E. Wills, A.S. Bozeman, and J.V. Gipson, all of Meridian, for appellee.
The board of supervisors, in its discretion, did not err in striking the pleading and protest filed by appellants at the subsequent meeting, and after the election, on April 5, 1943, seeking to reopen the issue of fact adjudged by the board at the February meeting, before the election, for the reason that the protest was filed out of time and in violation of the rule of orderly procedure. The board of supervisors, sitting as a court, is vested with the same discretion as any other court to permit or deny the filing of a pleading or contest out of time; and this discretion was properly exercised here and was not abused.
Lewis v. Black, 27 Miss. 425, 432; Price v. Sinclair, 5 Smedes M. (13 Miss.) 254, 258; Woods v. Campbell, 87 Miss. 782, 788, 40 So. 874.
This late filing of the protest is in the nature of a request for a new trial of the facts adjudged on February 1, and upon the same principle the rule has often been announced by this Court that such a request is properly denied unless the party asking same has been diligent and it was not for want of diligence that the evidence, upon which he relies, was not discovered sooner.
Redmond v. Marshall, 162 Miss. 359, 363, 137 So. 733; 15 R.C.L. 694, Sec. 146.
After an interlocutory decree, neither of the parties has the absolute right to introduce new evidence in respect to the matter decided; but the right to introduce and use such evidence as ground for changing or setting aside such decree, depends on the sound judicial discretion of the court to which it is offered.
Hunter v. Carmichael's Adm'r, 12 Smedes M. (20 Miss.), 726; Pattison v. Josselyn, 43 Miss. 373; 31 Am. Jur. 728, Sec. 275; 10 R.C.L. 562, Sec. 350; 15 R.C.L. 692.
This rule, though announced in chancery cases, is equally applicable to all courts, including boards of supervisors.
The board did not err in striking the protest filed on April 5, after the election was held and reported and the cost incurred by the board, because appellants were estopped to protest at this late day by their election of remedies and by their conduct resulting in an irreparable loss of $1,300 public money to the board, if their contest be successful.
The appellants, if they desired to contest the proposed exclusion of beer sales from the county, had two remedies — inconsistent with each other. (1). To contest the petitions and the sufficiency thereof to have an election called, or (2) to stand by and let the election be called and to have the election go wet, if possible. Appellants chose remedy No. 2. It is a general rule that if one having a right to pursue one of several inconsistent remedies makes his election, receives anything of value under the claim thus asserted, or if the other party has been affected adversely, such election constitutes an estoppel thereafter to pursue another and inconsistent remedy.
Staton v. Bryant, 55 Miss. 261; Nixon's Heirs v. Carco's Heirs, 28 Miss. 414, 431; Kelso v. Robinson, 172 Miss. 828, 840, 161 So. 135; 10 R.C.L. 703, Sec. 30, p. 782, Sec. 97.
We submit to the Court that the rules of orderly procedure in supervisors' courts, and the protection of boards of supervisors from speculative expenditure of public funds, with no chance of reimbursement, if wrongfully spent, should impel this Court to affirm the judgment below; if not, also to overrule the majority decision on suggestion of error in the former appeal of this case (16 So.2d 378) and to reaffirm the original decision in 15 So.2d 365, 154 A.L.R. 863.
The finality of the order of the board for an election made on February 1, 1943, if it be final, or the discretion of the board to reopen and review the order at a subsequent term or not, if it be interlocutory, are not affected by the fact that the order is a finding of a jurisdictional fact, that the petitions for an election were signed by 20 percent of the qualified voters of the county. Such a jurisdictional fact, when once determined, is like any other finding of fact, final unless appealed from.
Martin v. Board of Sup'rs of Winston County, 181 Miss. 363, 386, 178 So. 315; Watkins v. Mississippi State Board of Pharmacy, 170 Miss. 26, 154 So. 277; Moffett v. Board of Sup'rs of Attala County, 181 Miss. 419, 179 So. 352; Robinson v. Board of Sup'rs of Itawamba County, 107 Miss. 352, 65 So. 461; Byrne v. Jeffries, 38 Miss. 533; Moore v. Board of Sup'rs of Prentiss County, 151 Miss. 671, 118 So. 349; Blum v. Planters' Bank Trust Co. of Opelousas, La., 154 Miss. 800, 122 So. 784; McDonald v. McDonald, 68 Miss. 689, 9 So. 896; Havens v. Brown, 132 Miss. 747, 96 So. 405; Lawrence v. Nelson, 143 U.S. 215, 36 L.Ed. 130, 134; 34 C.J. 907.
The authority to call an election and pay the cost thereof out of the public funds should be finally established before the election is held and before the money is expended for the protection of the board and of the public funds.
Ferguson v. Board of Sup'rs of Monroe County, 71 Miss. 524, 14 So. 81; Martin v. Board of Sup'rs of Winston County, supra; Mohundro v. Board of Sup'rs of Tippah County, 174 Miss. 512, 165 So. 124; Power v. Robertson, 130 Miss. 188, 93 So. 769; Corbett v. Duncan, 63 Miss. 84; Loeb v. Duncan, 63 Miss. 89; Rogers v. Hahn, 63 Miss. 578; Hamilton v. Long, 181 Miss. 627, 180 So. 615; Costas v. Board of Sup'rs of Lauderdale County, 196 Miss. 104, 15 So.2d 365; 154 A.L.R. 863.
Argued orally by W.E. Gore, for appellants, and by A.S. Bozeman, for appellee.
This case has twice heretofore engaged the attention of this Court. The first opinion of the Court was reported in 15 So.2d 365, 154 A.L.R. 863, wherein the Court adopted the view that the order of the county board of supervisors of Lauderdale County holding that a petition for an election to determine whether traffic in light wines and beer should be excluded contained twenty per cent or more of the signatures of qualified electors was a final judgment as to said adjudication. Hence, it was further decided that aggrieved parties were required to appeal therefrom within ten days from its date. Appellants perfected the appeal more than ten days after the date of this adjudication, which the court said precluded the consideration of the appeal here. Appellants here were appellants there and contended that the entire procedure before the board of supervisors from the filing of the petition for the election to the final judgment of the board after the report of the election commissioners had been filed was a single procedural entity, and the questions involved were not foreclosed or finally determinable until after the election and report thereon to the board, whereupon all issues would become open to challenge and triable before a final judgment. As stated, this Court rejected this theory of appellants.
However, this Court sustained a Suggestion of Error, reported in 16 So.2d 378, holding that the previous decision of the point now presented to us was therein erroneously made. In other words, the opinion on the Suggestion of Error held that the order of the board of supervisors for such election was only an interlocutory order, not appealable, and did not preclude parties from thereafter challenging the board's adjudication that the petition for election contained twenty per cent or more of the qualified electors. It was further the opinion of this Court that although the board of supervisors was acting judicially, it did not thereby complete the exercise of its judicial functions in the matter, and thereafter as a prerequisite to its jurisdiction to enter a final order of exclusion, the board was required to adjudicate that the issue to be voted on was properly submitted, and notice was published as required by law, and that the election was conducted according to law. Code 1930, Section 310; Laws 1934, Chapter 171, as amended by Laws 1942, Chapter 224. See also Section 10208, Chapter 5, Code 1942. In other words, the only final judgment in the entire procedure before the board is one rendered after the filing of a petition in accordance with the statute, after publication of notice of election, election, and report thereof to the board of supervisors by the election commissioners, and from such final order only will an appeal lie to this Court.
It is not necessary to review the facts and procedure before the board with which this Court dealt in the two prior decisions, supra, as they are set out therein. Suffice it to say that the case on remand to the circuit court on the sustaining of the Suggestion of Error was by the circuit court remanded to the board of supervisors for further proceedings, the circuit court having set aside its previous order affirming the final judgment of the board of supervisors from which the appeal had been taken. The appellants, Theo. Costas, doing business as Southern Beverage Company, and Kramer Service, Incorporated, doing business as Kramer Beverage Company, thereafter appeared before the board of supervisors to protest against the granting of an order excluding beer and light wines from Lauderdale County, challenging in particular the adjudication by the board that a petition containing signatures of twenty per cent or more of the qualified electors of said county had been filed with said board praying for an election as to the exclusion or not of wine and beer from Lauderdale County, contending that said petition did not contain twenty per cent, and that all proceedings were ineffectual.
At the hearing before the board of supervisors where the final order from which appeal again brings the case here was entered, the petitioners and the protestants, both represented by counsel, appeared and the protestants having announced ready for hearing, petitioners filed two motions but only one of them is pertinent here. The motion pertinent to the present decision was to dismiss and strike the protest, and the board sustained this motion. It also refused the protestants the right to introduce evidence in support of their claim that the original petition upon which the election was ordered and held contained only 15.67% of the signatures of the qualified electors of Lauderdale County. The protestants tendered as a witness a certified public accountant under the laws of this state, offering to prove by him that he had made a thorough check of the records involved and was qualified and able to produce proof of the facts alleged by protestants. Final order was entered by the board of supervisors by which wine and beer were excluded from Lauderdale County. An appeal was taken to the circuit court, which affirmed the action of the board, and from the judgment of the circuit court the case comes back here.
Appellants assign as errors the action of the circuit court in affirming the order of the board of supervisors, and thereby putting into effect an ordinance prohibiting the sale of light wines and beer in Lauderdale County, that the circuit court erred in affirming the action of the board of supervisors in sustaining the motion to strike the appellants' protest; and that the circuit court erred in affirming the action of the board of supervisors in excluding evidence offered by the appellants as proof of the insufficiency of the number of signatures on the petition calling for an election on the question here involved. The attorney for the appellee in his brief says this: "We submit to the Court that the rules of orderly procedure in Supervisors Courts, and the protection of Boards of Supervisors from speculative expenditure of public funds, with no chance of reimbursement, if wrongfully spent, should impel this Court to reaffirm the judgment below, if not, also to overrule the majority decision on suggestion of error in the former appeal of this case 16 So.2d 378 and to reaffirm the original decision in 15 So.2d 365 [154 A.L.R. 863]."
In other words, it seems that the purpose of appellants may be the reargument of the former case, although they insist that it is a matter of interpretation only. Nevertheless, the issue is again narrowed down to the question whether or not the initial adjudication by the board of supervisors that twenty per cent of the qualified electors had petitioned for an election, and whether or not such adjudication was a final judgment as contended by appellees or interlocutory as contended by appellants, and whether, after the further progressive steps toward the final determination of the procedure and upon the filing of the report of the election commissioners, the board of supervisors should then have heard the protest of appellants with reference to the original petition before entering final order.
This Court in its decision in 16 So.2d 378 held that the adjudication as to the sufficiency of signatures to the petition was interlocutory, and the entire cause, including that issue, must on pertinent and competent protest be adjudicated by the board upon trial before the final judgment could be entered in the case.
Appellees say that since some citizens, not the appellants, voluntarily appeared and contested before the board of supervisors the sufficiency of the initial petition when the board adjudicated it to be sufficient, these appellants are thereby estopped from protesting although they did not appear with the others at said hearing. It is argued that this hearing of a protest by others now estops these appellants from what is urged to be a reopening of the question. It appears to be the theory of appellees that there is privity between the other group of protestants, who appeared and fought, and the present appellants so as to estop the present appellants from having the board consider their protest, as above set out. It is further contended by appellees that the reopening of an interlocutory decree is within the discretion of the court on motion, and hence the court was exercising a sound discretion in refusing to hear the evidence tendered by appellants. Since, under the former opinion of this Court now controlling, the hearing on the original petition, in our view, did not close the question, and these appellants had no form of notice thereof, recognized as such by law, and did not participate in such hearing, they were not estopped thereby. So far as these appellants are concerned, this was an ex parte hearing since it was done for and in behalf of, or on the application of, one party only, to-wit: the petitioners who were present — as the appellants were absent. 32 C.J.S., Ex., p. 1145. Since there is no issue in the record involving the question whether or not the parties who did appear at the first hearing would be estopped, we are not deciding whether they had been estopped or not thereby as they are not the appellants here. For any foundation to support estoppel against these appellants, the record presents no establishment thereof because for the appellants to have been a party to the original hearing, the record must show it, and the mere knowledge of its pendency and even employment of counsel are insufficient to make them parties. McPike, Administrator, etc., v. Wells, Administrator, etc., 54 Miss. 136.
Appellants would not be bound on the theory that because the protestants who actually appeared and participated in the initial hearing on the petition before the board were fellow citizens of Lauderdale County, or engaged in the same line of business, but not interested with appellants in the same business, as being in privity thereby with appellants, because privies include: In estate, as donor and donee, lessor and lessee, and joint tenants; in blood, as heir and ancestor, and co-parceners; and privies in representation, as executor and testator, administrator and intestate; privies in law, where the law, without privity of blood or estate, casts the land upon another, as by escheat. There was no privity between the other contestants and these appellants, and hence no estoppel against maintenance of this contest by appellants. Lipscomb v. Postell et al., 38 Miss. 476, 9 George 476, 77 Am. Dec. 651; Harrington et al. v. Harrington et al., 2 How. 701. What we have said above is in response to the argument that the hearing asked by appellants after the rendition of this interlocutory judgment was within the discretion of the court to be granted only on motion to the end of setting it aside. The protest had the same purpose in view but the latter was not within the discretion of the board. Under the positive ruling of this Court, it was mandatory upon the board to hear this protest and proof in support thereof. Such holding by this Court then is now the law of this case, whatever may betide.
Nowhere in the statute is provision made for notice to anybody interested except the notice to the electors by the board of election commissioners concerning the holding of the election, and in our judgment this thereafter brings into the situation everybody affected thereby, and those failing thereafter before final judgment to seek to contest any phase of the issues, would be estopped.
The appellees also challenge the now controlling decision of this Court on the ground of expediency, saying the taxpayers thereunder might become involved in the hazard of a possible vain expenditure of considerable money in the holding of an election which might ultimately, by the final judgment of the board, turn out to have been useless because of the insufficiency of the initial petition. The Legislature passed the legislation. Lex ita scripta est. This legislation required the petition for the election to contain the named percentage of qualified electors signing the same, and if it did not contain so many signatures of qualified electors, the board had no right or power to call the election. In the case before us, the responsibility therefore for the hazard of this expenditure becoming vain is not on the Legislature or on this Court, but on the petitioners and the board of supervisors, if indeed the procedure was had and taken on a deficient petition, since it would be their original mistake, although honestly made, as here, if such error was, indeed made. This, we are not now able to determine.
When this case finally gets back to the board of supervisors to be proceeded with in accordance with the ruling of this Court herein, the board must allow protestants a hearing upon their protest in order to determine the precise question of whether or not the petition for the election to ascertain the will of the electors of Lauderdale County was signed by twenty per cent of the legally qualified electors of said county. If the board should so decide, then will follow as a matter of course an order excluding wine and beer from Lauderdale County for five years. Then, after five years the proponents of wine and beer may petition for a resubmission of the question, and the opponents thereof may contest the matter if the situation becomes involved as here. To a contemplative mind, the query is presented, how would the present petitioners feel if they then would find themselves in the present situation of the protestants? The law, however, is not merely an ephemeral solution of a temporary problem. Its principles are immutable and universal, as old as the ages, inherent therein being always a quality dear and necessary to all men, fairness. This requires that a day in court be granted to all alike. The issue before us is not a moral or a temperance issue. It is not a question of prohibition or anti-prohibition, or individual sentiments upon the subject of the rightness or wrongness of the traffic in wine and beer. It is a legal question, and as such, and only as such, we decide.
This Court, however is not a mere voice crying alone in the wilderness on the conclusion announced in the decision last rendered here. The strange situation would present itself, if appellees' contention prevailed, of an appeal from an ex parte judgment of the board on the sufficiency of the signatures of the petition for an election, its review here, and possible remand for further proceedings, to be followed by another appeal allowable from the final judgment thereafter — which is contrary to the general rule everywhere and for all time, save in exceptional cases not here involved, insofar as we can determine from careful research. Opposed to this is the recognized wisdom of the determination of all issues on a single appeal. The object of such a general practice is to present the whole cause for determination in a single appeal and thus to prevent the unnecessary expense and delay of repeated appeals. Davie v. Davie, 52 Ark. 224, 12 S.W. 558, 20 Am. St. Rep. 170; Jones v. First National Bank, 123 Ohio St. 642, 176 N.E. 567.
Parallel to the procedure here is that prescribed and followed in many cases involving the issuance of bonds under statutes governing such matters for certain public purposes. The statutes as to petitions and procedure there in many of such cases are similar to the procedure here. Therefore, to uphold the contention of appellees as made now before us would put this Court in the untenable position of interpreting like systems one way when involved in the issuance of bonds and another way when involving the question of excluding or not excluding the sale of wine and beer. We think that to adopt such a difference in the interpretation of parallel rules would make us recreant to our duty to treat all alike in controversies. We are required, by the solemn mandate of the law, and our obligation, to adjudicate impartially. That must be the common goal in all our decisions, and we must set our sails accordingly to reach always that goal, whatever phase of economic or social problems may confront us. Otherwise, adjudication would head toward divergence from, and not confluence with, an identical route toward the requisite port, else we may lose our course. It was Ella Wheeler Wilcox who wrote:
"One ship drives east and another west With the selfsame winds that blow; 'Tis the set of the sails, And not the gales Which tell us the way we go."
Therefore, as heretofore adjudicated by this Court, supra, the protestants are due their hearing, which hearing may or may not develop that twenty per cent of the qualified electors signed the petition for the election. So it is necessary to reverse and remand the case for further proceedings in accordance with this opinion.
Reversed and remanded.
DISSENTING OPINION.
The board of supervisors had the right and power to pass upon and adjudicate the sufficiency of the petition at its February, 1943, meeting. Chapter 224, Laws 1942. The law makes no provision for notice to be given of the filing of the petition or of the time of hearing the same. However, to dispel any suspicion of unfairness, it is pertinent to note the course of events in this proceeding.
The petitions were filed September 29 and October 7, 1942, both, taken together, constituting one petition. An attorney for two beer dealers later appeared to contest the petition. The supervisors continued the hearing to the January 1943, meeting, at which meeting it was announced the contest would be heard at the February meeting.
Said contestants and their attorney appeared at the February meeting and resisted the petition; proof was taken and the board, on that proof, adjudicated that the petition contained the required twenty percent of the qualified voters of the county and ordered the election. No appeal was taken by those contestants and they disappear from this record.
Notice of the election was duly published, the first notice appearing February 8th, and the election was duly held March 16th, at a cost of $1,305. On March 20th, the election commissioners made their report of the election, showing 1,982 votes for and 3,311 against the sale of wine and beer in Lauderdale County.
On April 5th thereafter, the present contestants, also beer dealers, first made their appearance in this proceeding, making the contention then that the petition for the election did not contain twenty percent of the qualified voters of the county. The board declined to again hear evidence on that question and appellants appealed to the circuit court, which affirmed the supervisors; hence, the former appeal to this Court. The appeal from the order of the supervisors adjudicating the sufficiency of the petition, it will be noted, was not taken within ten days after the date of such order, as the statute requires as to final orders, and the questions presented on the former appeal here were (1) whether the ballot used at the election was legal and (2) whether the appeal from the February order adjudicating the sufficiency of the petition was timely taken. The second question depended upon whether said February order was final or interlocutory. On the final hearing of the case here, the Court held the ballot was legal and that the appeal was timely taken because the February order was interlocutory and that the final order in this matter was that putting the result of the election into force. 16 So.2d 378.
Therefore, it is settled that the order adjudicating the sufficiency of the petition was valid and interlocutory. If that is true, then it was within the sound discretion of the board of supervisors, sitting as a court, whether it would set aside such order and have a rehearing. Hunter v. Carmichael's Adm'r, 12 Smedes M. 726, 20 Miss. 726; 31 Am. Jur. 267, Section 717. Moreover, the original and present contestants are of the same class (beer dealers), have the same interest in the petition for this election, and, therefore, the original contestants, there being no evidence that they did not act in good faith in contesting the petition, should be held to have represented all other persons of the same class.
To hold that each person who desires to contest the matter may at any time from the filing of the petition to the final order putting the result of the election into effect appear as a matter of right and contest the question, and that the board of supervisors has no right or discretion as to whether it will set aside the former order, or orders, and permit a rehearing, would, from a practical and economical standpoint, create an intolerable situation. In other words, as soon as one contestant gets through, another can appear and demand a rehearing. Each well-wisher contestant can await the outcome of a prior contest, or contests, and then institute one of his own, and so on without end. Under that rule, the entire time of the supervisors from the filing of the petition to the final order putting the election into effect in this case could have been demanded and consumed by different contestants of the petition, and, indeed, with that absolute right existing in contestants, it is not seen how an election could ever be held. The statute contemplates only one hearing on that question. I do not think the remand of the case by this Court was a command to the supervisors to set aside its former order and rehear proof on the petition. The remand was for the proper procedure whatever that might be.
Smith, C.J., concurs in this opinion.