Opinion
No. 36127.
June 10, 1946.
1. INTOXICATING LIQUORS.
Order of county board of supervisors reciting that petition for election to determine whether light wines and beer may lawfully be sold in county was the petition of not less than 20 per cent. of qualified voters of county and calling such election was not void because of failure expressly to adjudicate as a fact the number of qualified voters in county and number of such voters on petition, though it would be better practice for order to expressly so adjudicate (Code 1942, sec. 10208).
2. INTOXICATING LIQUORS.
The number of qualified voters in county and the number and percentage of such voters who sign petition for election to determine whether light wines and beer may lawfully be sold in county must be determined as of the time of meeting of board of supervisors at which such questions are adjudicated and not as of the date petition was filed (Code 1942, sec. 10208).
3. INTOXICATING LIQUORS.
The number of qualified voters in county and number and percentage of such voters who sign petition for election to determine whether light wines and beer may lawfully be sold in county must be adjudicated before county board of supervisors has jurisdiction to call such election (Code 1942, sec. 10208).
4. INTOXICATING LIQUORS.
That county board of supervisors at meeting at which it ordered election to determine whether light wines and beer might be lawfully sold in county appointed a man to ascertain number of qualified voters in county and number and percentage of such voters who signed petition for election and that appointee undertook to ascertain such facts and reported back to supervisors after election had been held, did not cure the failure of supervisors to adjudicate such facts before entering order calling election (Code 1942, sec. 10208).
APPEAL from circuit court of Scott county, HON. PERCY M. LEE, Judge.
W.D. Conn, Jr., of Jackson, for appellants.
Before the board had any right or jurisdiction to order the election here in question, it was necessary to determine and adjudicate how many qualified voters there were in the county and how many petitioners were actually qualified. In this case, they either knew neither and hence had nothing upon which to base their order of February 9, 1945, or they refused to take the undisputed proof as to the number of qualified voters on the general election poll books. Either way the board went under the facts before it was fatal to its jurisdiction to call the election, and this Court should so hold and adjudge that the election held pursuant to such "adjudication" was void.
Simpson County v. Burkett, 178 Miss. 44, 172 So. 329; Simpson County v. Buckley, 85 Miss. 713, 38 So. 104; Hawkins v. Carroll County, 50 Miss. 735; Martin v. Winston County, 181 Miss. 363, 178 So. 315; Costas v. Board of Sup'rs of Lauderdale County, 196 Miss. 104, 16 So.2d 378; Moffett v. Attala County, 181 Miss. 419, 179 So. 352; Day v. Covington County, 184 Miss. 611, 185 So. 251; Hall v. Franklin County, 184 Miss. 77, 185 So. 591; Sides v. Choctaw County, 190 Miss. 420, 200 So. 595.
It is our contention that an adjudication of sufficiency with a factual basis therefor was a prerequisite to the calling of an election — the sine qua non of a valid election; and that the board was bound by what was before it at the time of the adjudication and the entry of the order calling the election, and it cannot, by after-acquired evidence, say that it would have had the right to call the election. It is a case of locking the stable after the horse has gone.
Moffett v. Attala County, supra; Simpson County v. Burkett, supra.
The provisions of the statute with reference to signing the minutes before adjournment is mandatory, and unless specifically and strictly complied with, there are no minutes. Under the testimony of the president of the board and the three members, adjournment took place before the minutes were signed, there was no valid order calling an election, and the order predicated on the election was invalid and void, and the Court should so hold.
Gardner v. Price, 197 Miss. 831, 21 So.2d 1; Brand v. Board of Sup'rs of Newton County, 198 Miss. 131, 21 So.2d 579; Code of 1942, Sec. 2880.
The order entered pursuant to the pretended election was without legal effect.
Carver v. State ex rel. Ruhr, 177 Miss. 54, 170 So. 643; Ruhr v. Cowan, 146 Miss. 870, 112 So. 389; Calvert v. Crosby, 163 Miss. 177, 139 So. 608; Code of 1942, Secs. 3160, 3224-8; Constitution of 1890, Sec. 241.
Nichols Huff, of Forest, for appellee.
To establish jurisdiction to order the election the board was required to adjudicate only that not less than 20 percent of the qualified electors of the county had signed the petition and that no election on the question had been held in the county within a five year period. The board so found, after consideration of all the testimony, including its own independent investigation, and the finding was duly incorporated into its order of February 9, 1945, as required of a court of limited and special jurisdiction.
Simpson County v. Buckley, 84 Miss. 713, 38 So. 104; Hawkins v. Carroll County, 50 Miss. 735; Ferguson v. Monroe County, 71 Miss. 524, 14 So. 81; Moffett v. Attala County, 181 Miss. 419, 179 So. 352; Martin v. Winston County, 181 Miss. 363, 178 So. 315; Code of 1942, Secs. 3162, 10208.
In the light of the trial court's finding of fact, there was such adjournment of the board, as to make its order of February 9th a valid order.
Watson v. State, 166 Miss. 194, 146 So. 122; Code of 1942, Sec. 2886.
The finding of fact by the trial judge that the president of the board signed the minutes on February 9, 1945, is conclusive of the issue.
In the light of the whole record the final order of the board is correct and the judgment of the court below should be affirmed.
Costas v. Board of Sup'rs of Lauderdale County, 196 Miss. 104, 16 So.2d 378.
Argued orally by W.D. Conn, Jr., for appellants, and by William A. Huff and J. Knox Huff, for appellee.
On December 4, 1944, a petition, purporting to contain the names of twenty percent of the qualified voters of Scott County, was filed with the board of supervisors of that county, asking the board to call an election under Section 10208, Code 1942, to determine whether or not light wines and beer could lawfully be sold, transported, etc., in Scott County.
No action was taken on that petition until the February, 1945, meeting of the supervisors. At that meeting, and on February 9, 1945, an order was adopted reciting ". . . that said petition is the petition of not less than twenty percentum (20%) of the duly qualified voters of said County."
Appellants, before the adoption of this order, appeared at that meeting, and, both by writing and in person and by their attorneys, protested its adoption and the calling of the election, taking the position that the petition did not contain twenty percent of the qualified voters as of the date it was being considered, and offered to introduce evidence to that effect.
The attitude and action of the board are shown by a special bill of exceptions, which recites: "That on said date, February 9, 1945, and at such session of the Board of Supervisors aforesaid, the Board declined to adjudicate the actual number of qualified voters of Scott County, Mississippi; and stated it would not consider the qualifications of any voter as of that day, February 9, 1945, but would confine itself to such qualifications as of the day of filing of the petitions with the Board; and the Board admitted that it, as a Board, had made no investigation nor had any member thereof made such investigation of the qualifications of voters as of February 9, 1945, the Board taking the position that the qualifications of petitioners should be determined as of the date of the filing of the petitions, to-wit: December 4, 1944, the Board being of the opinion that said matters might be determined at any time prior to final order on said cause."
Appellants now say the order is void because it failed to adjudicate as a fact the number of qualified voters in the county and the number of such voters on the petition, from which adjudicated facts the percentage of such electors on the petition could be deduced. Appellees say the percentage on the petition is a fact which can be set out in the order without also stating the total number of qualified electors in the county and on the petition. Such was done in Martin v. Winston County, 181 Miss. 363, 377, 178 So. 315, and this Court upheld the order, although we think it the better practice for the order to expressly find and adjudicate the total number of such electors in the county and on the petition as well as the percentage on the petition. Sides v. Choctaw County, 190 Miss. 420, 200 So. 595. The contention of appellants in this respect is not well taken.
Appellants next urge here the contention they made before the supervisors to the effect that the time as of which the number of qualified voters in the county and on the petition and the percentage on the petition must be determined is the meeting of the board at which the questions are adjudicated and not the date the petition is filed. Appellants are correct in that contention. Section 10208, Code 1942; Moffett v. Attala County, 181 Miss. 419, 179 So. 352. It is obvious that many changes in the qualified electors of the county had taken place from December 4, 1944, when the petition was filed, to February 9, 1945, when the matter was considered. That is true both of the total electors in the county and on the petition. No doubt members of electors as of December 4 had died by February 9. Others had registered and qualified during that time. Poll taxes were due to be paid by February first and it may be correctly assumed that many had become disqualified by failure to pay such taxes. It is obvious that determination of the facts as of December 4 could not be a correct adjudication of the facts existing February 9th thereafter. While only a little more than two months elapsed in this case from the filing of the petition to the hearing, suppose four or six months had passed? If it be said that it was difficult for the supervisors to determine the question as of latter date because so short a time had elapsed from February 1st, the date for paying poll taxes, the answer is there was no legal reason forbidding the postponement of action until a later date.
Furthermore, the foregoing facts must be adjudicated before the board has jurisdiction to call the election. Simpson County v. Burkett, 178 Miss. 44, 172 So. 329. The fact that the supervisors in this case at its February meeting, 1945, appointed a man to ascertain the foregoing facts and later report them to the supervisors, and that he did undertake to do that and reported back to the supervisors at the July, 1945, meeting, after the election had been held, did not cure the failure of the supervisors to adjudicate the facts before it entered the order calling the election.
We do not decide other questions argued by appellant because they will not likely arise in future proceedings.
Reversed and remanded.