Opinion
No. 33170.
April 25, 1938.
1. CERTIORARI.
Where an application is made for writ of certiorari, all facts essential to establish the right of the applicant thereto must be shown.
2. CERTIORARI.
On certiorari, only such errors or defects as appear on the face of the record can be considered.
3. CERTIORARI.
Where petition for writ of certiorari to review an order of board of supervisors ordering an election on question of prohibiting sale and distribution of wine and beer in county has been filed, it is only where ground for reversal appears from the record that the court can grant a hearing on the merits in the circuit court (Laws 1934, chapter 171; Code 1930, sections 72, 73.)
4. CERTIORARI.
Where petition for certiorari is presented for review of an order of board of supervisors ordering an election on question of prohibiting sale and distribution of wine and beer in county, the averments of exhibits attached to the petition control (Laws 1934, chapter 171, Code 1930, sections 72, 73).
5. CERTIORARI.
Writ of certiorari to review order of board of supervisors ordering an election on question of prohibiting sale and distribution of wine and beer in county was improvidently issued, where exhibits attached to petition for the writ recited all the necessary jurisdictional facts entitling the board to order the election (Laws 1934, chapter 171; Code 1930, sections 72, 73).
6. CERTIORARI.
A writ of certiorari issued for purpose of reviewing an order of the board of supervisors ordering an election on question of prohibiting sale and distribution of wine and beer in county, although improperly issued because of failure to show good cause, was not void where the judge issuing the writ had jurisdiction to issue it (Laws 1934, chapter 171; Code 1930; sections 72, 73, 742).
7. MANDAMUS.
A permanent writ of mandamus cannot be issued until the clerk of the circuit court has issued a summons which has been served and returned as required in other actions (Code 1930, section 2351).
8. PROHIBITION.
A permanent writ of prohibition cannot be issued until the clerk of the circuit court has issued a summons which has been served and returned as required in other actions (Code 1930, section 2358).
9. PROHIBITION.
A writ of prohibition, issued in vacation without notice by clerk of circuit court on order of circuit judge of another district, prohibiting board of supervisors from conducting an election on question of prohibiting sale and distribution of wine and beer in county was void and did not affect the holding of the election (Laws 1934, chapter 171; Code 1930, sections 742, 2351, 2352, 2357, 2358, 3074).
10. MANDAMUS.
A writ of mandamus should not be issued where there is a plain, adequate, and speedy remedy in ordinary course of law (Code 1930, section 2348 et seq.).
11. PROHIBITION.
A writ of prohibition should not be issued where there is a plain, adequate, and speedy remedy in the ordinary course of law, especially where it is sought to prevent the holding of an election (Code 1930, section 2348 et seq.).
12. PROHIBITION.
Where writ prohibiting the holding of an election on question of prohibiting sale and distribution of wine and beer in county was void, the party obtaining the writ could not complain of order vacating the writ of prohibition on ground that judge did not have authority to vacate the writ in vacation (Laws 1934, chapter 171; Code 1930, section 2354).
13. CERTIORARI.
Where election on question of prohibiting sale and distribution of wine and beer in county had been held pursuant to order of board of supervisors while certiorari proceeding to review board's order was pending, the court properly affirmed the board's order calling the election, in absence of error appearing on face of record existing at time of issuance of the writ of certiorari (Laws 1934, chapter 171; Code 1930, sections 72, 73).
14. CERTIORARI.
In certiorari proceeding to review order of board of supervisors calling an election on question of prohibiting sale and distribution of wine and beer in county, refusing to allow amendment to pleadings whereby it was sought to have registration books, poll books, and other records brought up for examination to ascertain what percentage of qualified electors had signed petition for election was not error (Laws 1934, chapter 171; Code 1930, sections 72, 73).
15. CERTIORARI.
Evidence and testimony considered by an inferior tribunal are no part of the record on certiorari.
16. CERTIORARI.
In certiorari proceeding to review order of board of supervisors calling an election on question of prohibiting sale and distribution of wine and beer in county, the facts regarding election and the report thereof by election commissioners occurring subsequent to issuance of writ of certiorari were not part of record proper on hearing in circuit court, but court's consideration thereof did not harm party seeking the writ, where no error appeared in the entire proceedings before the board up to and including the report of the election commissioners (Laws 1934, chapter 171).
APPEAL from the circuit court of Tishomingo county. HON. THOMAS H. JOHNSTON, Judge.
E.C. Sharp, of Booneville, for appellant.
The election held on the 13th day of November was void. The order ordering the election had been superseded by the writ of certiorari and supersedeas and the order of the Circuit Judge in vacation vacating the supersedeas was a nullity. Section 72, Code 1930, authorizes the issuance of writs of certiorari with supersedeas and when this writ is issued and bond given as required by law the entire matter is transferred to the Circuit Court and the case cannot be heard except in term time.
Grayson v. Harris, 102 Miss. 57, 58 So. 775; Buckley v. George, 71 Miss. 580, 15 So. 46; Ferguson v. Seward, 146 Miss. 613, 111 So. 596.
The only authority the election commissioners had to hold the election in question was the order of the board of supervisors entered at the October meeting calling the election. This order having been superseded by order of the court any further action on said order or pertaining thereto was suspended and any authority theretofore granted by the order was suspended until a final determination of the case. An appeal or certiorari with supersedeas would be useless if the proceedings could be continued or the judgment, decree or order carried out with a supersedeas in effect. To so hold would completely nullify Section 73, Code of 1930, and the ruling in the Grayson and Buckley cases, supra, and is in direct conflict with the rule announced in Runyon v. Bennett, 4 Dana (Ky.) 598.
Appellees attempt to justify the holding of the election and sustain its validity by relying upon the order of the judge vacating the supersedeas in vacation, which order was entered on one day's notice at a place more than one hundred miles from the residence of appellant.
Writ of certiorari can be heard on the return day of the writ, but, unless by consent, not before.
11 C.J. 191; Brown v. Smith, 24 Ga. 418; Ewing v. Thompson, 43 Pa. 372; Busby v. State, 177 Miss. 68, 170 So. 140.
We presume that it will be contended by appellees that the case was not heard on its merits at that time and therefore that the above authorities do not apply. This position is not tenable for by Section 72 of Code 1930, if a proper petition is presented within the time allowed by law and the writ is authorized by the judge, it operates as an appeal, and where the fiat of the judge has been issued the writ has served its purpose and is to be considered no further.
Board of Supervisors v. Melton, 123 Miss. 615, 86 So. 369.
The court erred in quashing the writ of prohibition.
Sections 2357, 2358, 3074, Chapter 48, Code of 1930.
None of the requirements of Section 3074 were complied with and appellant herein was denied an appeal with supersedeas. Can the court disregard all requirements of the statute, as was done in this case, and still hold that the election in this case was legal or that the actions of the board of supervisors and election commissioners should be affirmed and upheld? Regardless of what may be said for or against the sale of beer a licensed dealer has a right to his day in court and to an orderly hearing and determination of his cause according to recognized and statutory rules of procedure.
If the court erred in the judgment rendered on the 11th day of November, in vacation on one day's notice, then the election was held without authority of law and is illegal and void.
W.C. Sweat, of Corinth, for appellees.
Our first contention is that the writ of prohibition issued by Judge T.H. McElroy, judge of the third judicial circuit, was absolutely void. The election commissioners of Tishomingo County could have ignored this writ and proceeded to hold the election notwithstanding the same. As a matter of fact it was really unnecessary to have the writ quashed by Judge Johnston, the circuit judge of the first district; but if it should be held that Judge Johnston had no right to vacate and discharge the writ of prohibition it could avail appellant nothing because the writ in the first instance was void.
Sections 2358, 2349, Code of 1930.
This court has held that a writ of prohibition can only be issued by the court of original jurisdiction and that the power to issue such writ is by our constitution and statutes lodged only with the circuit court.
Wynne v. I.C.R.R. Co., 105 Miss. 786, 66 So. 411.
Section 742 of the Code authorizing remedial writ to be granted by the Judges of the Supreme Court, Circuit Judges and Chancellors does not authorize the issuance of writs of prohibition by judges of other courts than the court of original jurisdiction.
The writ of prohibition was void for the further reason that no notice was given to the appellees, the election commissioners, of the suing out of this writ, as the record discloses, notwithstanding there was ample time to have given notice of the application for the writ and an opportunity to be heard.
As a general rule notice must be given to the interested parties before a writ of prohibition is issued and a permanent writ is void where issued without it.
50 C.J. 698.
This court has held that election officers cannot be controlled by a writ of prohibition.
State ex rel. Attorney-General v. Bd. of Suprs., Coahoma County, 3 So. 143.
It will be noted in the case at bar that the order of the judge quashing and vacating the writ of prohibition did not interfere with the certiorari; that remained in force and went on up to be heard at the regular term of court and was so heard. His order only vacated the writ of prohibition and so much of the supersedeas as prevented the election commissioners from holding the election.
The courts of this state will not by mandamus, supersedeas or prohibition interfere with elections.
Native Lbr. Co. v. Bd. of Suprs., 89 Miss. 171, 42 So. 665; Barnes v. McLeod, 165 Miss. 437, 140 So. 740.
The appellant had his remedy by certiorari, which was not interfered with by the court below.
Prohibition does not lie to control election officers when there is another remedy, as by contest of the election or by appeal or writ of error.
50 C.J., 692.
The right to prohibition is defeated, not by the existence but by the adequacy of the remedy by appeal. Prohibition is properly granted if the remedy by appeal is inadequate.
50 C.J., 686 and 660.
The fact that the appellant had taken a writ of certiorari and supersedeas from the order of the board of supervisors ordering the election and had the writ filed with the circuit clerk three days before the election did not prevent the election officers from proceeding with the election. When the board of supervisors ordered the election their functions were at an end in so far as the election was concerned, and any appeal from that order would have no effect on the holding of the election.
Ferguson v. Monroe County, 71 Miss. 524.
If an appeal from the order of the board of supervisors ordering an election would stop the holding of an election until the court passed on the appeal or certiorari as the case may be, an election could never be held if there was some one willing to take an appeal from each such order.
Of course any person has a right to appeal and have his appeal heard but by so doing he does not have the right to prevent the people from expressing their will in an election.
This court has held in numerous decisions that in a writ of certiorari the court must confine to an examination of questions of law appearing on the face of the record.
Mills v. Churchill Motor Co., 154 Miss. 631, 122 So. 773; Y. M.V.R.R. v. Mill Railroad Commission, 169 Miss. 131; Federal Credit Co. v. Zepernich Grocery Co., 153 Miss. 489, 120 So. 173, 121 So. 114.
The court has further held in numerous decisions that the circuit court had no right to look to the evidence in a case of this character and that the transcript of the evidence on a writ of certiorari constitutes no part of the record.
Federal Credit Co. v. Zepernich, 153 Miss. 489; Simpson v. Phillips, 164 Miss. 256, 141 So. 897; Federal Credit Co. v. Rogers, 166 Miss. 559, 148 So. 353.
There is one other thing that I desire to call the court's attention to, and that is with reference to the appellant's contention that the judge had no right to quash the writ of prohibition in vacation. I think I have already shown that this writ was void and it was in fact unnecessary to quash it, however, the statute under mandamus which, as already shown, applies to writs of prohibition as far as the nature of the remedy will allow gives the circuit judge ample authority to make such orders in vacation.
Section 2354, Code of 1930.
A writ of prohibition is an extraordinary writ, and is proper to be issued only in cases of extreme necessity. It should appear to the judge issuing the writ that it is the only adequate remedy of the party making the application therefor. It will not lie in a case which may be redressed in the ordinary course of judicial proceeding, and is not to be made a substitute for any other method of obtaining the relief sought.
Crittenden v. Booneville, 92 Miss. 277, 45 So. 723.
Argued orally by E.C. Sharp, for appellant, and by W.C. Sweat, for appellee.
At the August, 1937, meeting of the board of supervisors of Tishomingo county, a petition purporting to contain the names of more than 20 per cent. of the qualified electors of the county was presented to the board, asking that an election be called and held to determine whether or not the transportation, storage, sale, distribution, etc., of wine and beer, as provided for by chapter 171, Laws 1934, should be excluded and prohibited in that county. At this meeting an order was passed adjudicating that the petition contained more than 20 per cent. of the qualified electors of the county; that the same was otherwise legal and regular in form; that the election should be ordered; and for reasons, unnecessary to here enumerate, the order further provided that the election would not be ordered until the October meeting of the board. At its October meeting the board further considered the petition and adjudicated all the necessary jurisdictional facts; prescribed the form of the notices that were to be published and the ballot that was to be used; and ordered the election to be held on November 13, 1937, in all respects as provided by said chapter 171 of the Laws of 1934. No objection or protest was made by the appellant or any other person at the said October meeting of the board as to the sufficiency of the petition or the validity of the order providing for the election, and no appeal was taken therefrom.
On November 1, 1937, a petition was prepared on behalf of the appellant, a local beer dealer, and duly sworn to by him, asking for the issuance of both a writ of certiorari with supersedeas to the circuit court and a writ of prohibition against the members of the board of supervisors and the election commissioners of the county to prevent the holding of the election — a dual proceeding seeking relief of a separate and distinct character, governed by entirely different practice and procedure. This petition was presented on November 5, 1937, to a circuit judge of another district, without notice to any of the defendants, appellees herein, and a fiat was obtained for the issuance of the writs prayed for, which writs were not served on the defendants until November 10, 1937, after the publication of the notice for holding the election was completed. Thereupon, the defendants caused to be served on the appellant a written notice of their intention to present on the following day an application to the presiding circuit judge of the district to vacate the supersedeas of the certiorari and also to vacate the writ of prohibition to the extent that they undertook to prevent the holding of the election. At the time and place designated in the notice so served, the application was heard by such judge of the district, and was by him sustained over the objection of the appellant as to the power of the judge to hear the same in vacation.
The appellant assigns as error this action of the court, together with other errors alleged to have been committed when the certiorari was heard and determined at the January, 1938, term of court.
When the petition for the writs was presented to the circuit judge of the other district, there was attached thereto as an exhibit the order of the board of supervisors whereby the election had been ordered to be held, and this exhibit recited all the necessary jurisdictional facts entitling the board to order the election, in contradiction of the averment in the petition that 20 per cent. of the qualified electors had not asked for the election to be held.
It was held in the case of Planters' Lumber Co. v. Griffin Chapel M.E. Church, 157 Miss. 714, 124 So. 479, 128 So. 76, that where an "application is made for a writ of certiorari, all the facts essential to establish the right of the applicant thereto must be shown; and an order therefor can no more be made where a part of the essential facts must be supplied by mere inferences which do not necessarily follow from the other facts stated than can any other order be made by a court upon that kind of an insufficient foundation." It is well settled that on certiorari only such errors or defects as appear on the face of the record can be considered. Allen v. Levee Commissioners, 57 Miss. 163; Dickson v. Town of Centreville, 157 Miss. 490, 128 So. 332; Board of Sup'rs of Forrest County et al. v. Melton, 123 Miss. 615, 86 So. 369; Yazoo M.V.R. Co. v. Mississippi R. Commission, 169 Miss. 131, 152 So. 649; Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 120 So. 173; Mills v. Churchwell Motor Co., 154 Miss. 631, 122 So. 773, and numerous other cases. It is only where ground for reversal appears from the record that the court can grant a hearing on the merits in the circuit court. It is provided in sections 72 and 73, Code 1930, that a writ of certiorari may be issued on good cause shown by petition, supported by affidavit, which shall operate as a supersedeas. Under the law of pleadings in such case, as in all other cases, the averments of the exhibits control; and, since no good cause was shown for the issuance of the writ of certiorari to operate as a supersedeas in this case, the same was improvidently issued. However, section 742, Code 1930, authorizes the issuance of writs of certiorari, mandamus, supersedeas, etc., by circuit judges and chancellors of districts other than that in which the cause is pending, and by any judge of the Supreme Court, in all cases where the same may properly be granted according to right and justice, returnable to the proper court. Hence the writ of certiorari, although improperly issued, was not void; the judge issuing the same not being without jurisdiction to issue such a writ. The effect of the certiorari on the issue here involved will be later discussed in the course of this opinion.
As to the writ of prohibition, it is stated in 50 C.J. 698, that, "as a general rule, notice must be given to the interested parties before a writ of prohibition is issued, and a permanent writ is void where issued without it." The effect of the writ of prohibition issued in the case at bar, if the same had not been vacated, would have been to preclude the holding of the election at the time specified in the order of the board of supervisors, and the circuit court being without power upon the hearing of the proceeding at the return term to fix another date for the holding of the election, the action of the judge of the other district was equivalent to directing the issuance of a writ of prohibition proper, in vacation and without notice. The court, or judge in vacation, is only authorized to make temporary orders prior to the hearing of a petition for a writ of mandamus; and it is provided by section 2358 of the Code of 1930 that all of the provisions regulating the proceedings on the writ of mandamus shall apply, as far as the nature of the remedy will allow, to proceedings on writs of prohibition. Neither a writ of mandamus nor a writ of prohibition proper can be issued until the clerk of the circuit court shall issue a summons for the defendant as in other actions at law, which shall be served and returned as required in other actions. And section 2351, Code of 1930, relating to mandamus, provides that: "The petition shall stand for a declaration, and the defendant shall plead to it as if it were an ordinary action at law, and the same rules of pleading and proceeding applicable to actions in the circuit court shall be observed in this action. . . . The case shall be triable at the return-term." Section 2352, Code 1930, provides that, "If the judgment be that a mandamus issue, the writ shall be issued accordingly," etc. In other words, even though section 742 of the Code of 1930 should, for the sake of argument, be construed to authorized the judge of another district to issue a temporary order in a proceeding for a writ of prohibition, this is not what was done in the case at bar. No temporary order was rendered in vacation to be entered on the minutes of the circuit court of the proper district, but, on the contrary, a fiat was issued directing the clerk of the circuit court of Tishomingo county to issue the writ of prohibition proper, without prior notice to appellees, and the clerk issued the writ ordering and directing them to refrain from putting into effect or enforcing in any way, directly or indirectly, any judgment or order entered or passed by the board of supervisors on the 6th day of October, 1934, pertaining to the calling of an election for the purposes provided for.
Section 2357, Code 1930, on mandamus, which is likewise applicable to a proceeding for a writ of prohibition, only authorizes a hearing in vacation when a proceeding by mandamus is in a matter affecting the public interest, and where it is on the petition of the state by its Attorney General or a district attorney. And in such case, all the provisions of law relating to the trial and proceedings in vacation of informations in the nature of quo warranto shall apply. And when we examine the chapter on this subject, we find that vacation hearings on a petition for quo warranto can be had under section 3074, Code 1930, only after five days' notice to the interested party. We are therefore of the opinion that the writ of prohibition in this case was void, and did not affect the holding of the election in question.
Moreover, under the provisions of the chapter on mandamus in the Code of 1930, section 2348 et seq., neither the writ of mandamus nor prohibition should ever issue where there is a plain, adequate, and speedy remedy in the ordinary course of laws; and this is especially true where it is sought to prevent the holding of an election. Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518; Robinson v. Board of Sup'rs, Itawamba County, 105 Miss. 90, 62 So. 3; and Power v. Ratliff, 112 Miss. 88, 106, 72 So. 864, 868, Ann. Cas. 1918E, 1146, in which latter case the court said: "A safe rule was announced by Judge Terral in Gibbs v. McIntosh, 78 Miss. 648, 29 So. 465, that: `it is not the policy of this state to have elections, and other political matters of government reserved to legislative discretion. interfered with by the judges and officers of the judicial department of the government.'" Again, in the case of Barnes v. McCleod et al., 165 Miss. 437, 140 So. 740, where jurisdiction of a court of equity was denied, and where it was contended that the writ of prohibition was the proper remedy to prevent the election commissioners from placing the name of the appellant Barnes on the ballot, and that, therefore, the chancery court ought to have transferred the cause to the circuit court in order that the latter court might convert it into a proceeding for a writ of prohibition, the court said that: "If the cause had been transferred by the chancery court to the circuit court and by the latter court converted into a proceedings for a writ of prohibition, under the law the relief sought could not have been granted by the circuit court under that writ." The rule is stated in 50 C.J., 692 to be that: "Prohibition does not lie to control election officers when there is another remedy, as by contest of the election or by appeal." In other words, that the right to prohibition in election matters is defeated, not by the existence, but by the adequacy, of the remedy by appeal. And in the case of State, ex rel. etc. v. Board of Sup'rs of Coahoma County, Miss., 3 So. 143, 144, it was held that such writ would not lie "to inquire into the qualifications of electors, and the legality of the election, as affected by matters not apparent on the face of the returns."
Responding now to the contention that the circuit court of Tishomingo county was without jurisdiction or authority to vacate or supersede the writ of prohibition until the next regular term of the court, it may be observed that section 2354, Code 1930, on mandamus, which, as aforesaid, applies to proceedings on writs of prohibition, provides that any order of the court or judge may in vacation be superseded by the judge, etc., on such terms as he may deem reasonable. But, since the writ was void, the appellant cannot complain, even if it can be said that the above-mentioned statute did not authorize the judge to supersede the writ in vacation.
The election having been held on November 13, 1937, pursuant to the order of the board of supervisors and while the cause was still pending on the certiorari, the question now arises as to whether the court below erred in affirming, at its next regular term, the order and judgment of the board whereby the election was called. No error appeared on the face of the record existing at the time of the issuance of the writ; and under the authorities hereinbefore cited, the court was confined to an examination of the record of the proceedings before the board as complained of in the petition for the writ of certiorari. That being true, no error was committed in affirming the judgment of the board ordering the election. Neither was there error in refusing to allow the amendment to the pleadings whereby it was sought to have the registration books, poll books, and other records brought up for examination to ascertain what percentage of the qualified electors had signed the petition for the election. Evidence and testimony considered by an inferior tribunal are no part of the record on certiorari. Federal Credit Co. v. Zepernick Grocery Co., supra, and other cases hereinbefore cited.
While the holding of the election and the report thereof by the election commissioners, occurring subsequent to the issuance of the writ of certiorari, were not a part of the record proper on the hearing in the circuit court, no objection was interposed to the same being considered, and at least no harm was done appellant, since no error appears in the entire proceedings before the board up to and including the report of the election commissioners. Moreover, the judgment of the circuit court, by its terms, only affirmed the validity of the order of the board appealed from, and which we think was proper. The certiorari and supersedeas incident thereto served its proper purpose of entitling the appellant to have the judgment of the board reviewed. The integrity of such writ and supersedeas should be, and we think was, preserved, since no right of the appellant was violated during the pendency thereof.
Affirmed.