Opinion
No. 35840.
May 28, 1945. Suggestion of Error Overruled September 24, 1945.
APPEAL AND ERROR.
Trial court's finding of validity of order of board of supervisors for referendum election upon exclusion from county of traffic in beer and light wines, as properly and timely signed by president of board, was not manifestly wrong so as to require a reversal.
APPEAL from the circuit court of Lafayette county, HON. T.H. McELROY, Judge.
C.A. Bratton, of Oxford, for appellants.
The order of the board of supervisors at the May meeting was void for two reasons: (a) because the order does not set out the form of the notice to be given to the qualified electors of the county; and, (b) the order was actually signed by the president of the board on Wednesday following the adjournment of the board on Monday, the 1st day of May. The learned circuit judge in the court below, recognizing that there was no escape from the proposition that if the minutes were signed after the board had adjourned, the order was absolutely void, attempted to duck the question by saying the testimony of the clerk was not positive. When the question was asked the chancery clerk, "When were the minutes actually signed?", his answer was: "I believe it was on Wednesday following." Anybody's common sense would tell them that, had these minutes been signed on Monday, the 1st day of May, when that question was asked, the clerk would have unhesitatingly said: "The minute was signed on Monday." The court will bear in mind that the board was in session only one day (the 1st day of May) at the regular May, 1944 meeting. The testimony of the clerk was competent to contradict the minutes.
Watson v. State, 166 Miss. 194, 146 So. 122; Hammond-Gregg Co. v. Bradley, 119 Miss. 72, 80 So. 489; Simpson County v. Burkett, 178 Miss. 44, 172 So. 329.
The notice calling the election was not a legal notice. A mere reading of the notice of election, published in the county paper, shows that it was not in accordance with the statute. Section 3019, Code of 1942, provides, "The tickets to be used in said election shall have a substantial synopsis of the proposition petitioned for, printed thereon, and next below shall have the words, `For the Proposition'; and the words, `Against the Proposition,' next below." Nowhere in any of these orders is this statute complied with.
The statute specifically provides that elections of this kind shall be called by the board of supervisors. A mere reading of the notice of election will show that it is signed by the Election Commissioners and not by the board.
Code of 1942, Sec. 3018; Code of 1930, Sec. 310.
It is true that in the case of Barron v. Board of Sup'rs of Yalobusha County, 184 Miss. 376, 185 So. 806, this Court, speaking through Mr. Justice GRIFFITH, said: "The only point raised is the contention that, under Section 310, Code 1930, the notice must be given by the board of supervisors and not by the election commissioners. When, as here, the board directs the election commissioners to give the notice, and the notice by the commissioners specifically refers to the order of the board as the authority by which it is given, this is entirely sufficient. It was not necessary that two notices be given, or that the notice appear in more than one public newspaper of the county." It will be observed in this order that the only thing that is said in the order was, "The Clerk shall give notice to the Commissioners." We don't know how he gave notice to them — whether by letter, word of mouth or telephone conversation. The notice of the election published in the paper, instead of following Section 3018, Code of 1942, is signed by the commissioners but nowhere therein do they indicate where they got their authority to call the election.
J.W.T. Falkner, of Oxford, for appellee.
The authority cited fully supports the contention of appellant that the order of the board at the May meeting is invalid if in fact the minutes were not read and signed until Wednesday following the adjournment of the board on Monday, but no such proof was made on the trial of the case in the court below. Minutes of a court import absolute verity and cannot be contradicted by parol, yet parol is admissible not to contradict but to show that minutes as they appear are not true minutes of the court. This is the rule positively stated in the case of Hammond-Gregg Co. v. Bradley, 119 Miss. 72, 80 So. 489, cited by appellant, however this case and the rule laid down therein has no application here because there is no positive proof as to the signing of the minutes other than the certificate of the president as to time of signing appearing on the minutes, and the only intimation that the minutes of the board are incorrect or do not compose the true and correct minute of proceedings is the statement of the witness Stephens in response to the question, "When were the Minutes actually signed?", the witness answered, "I think it was on Wednesday following." Appellant contends that common sense would tell anyone that had the minutes been signed on Monday, the clerk would have answered "The Minute was signed on Monday." We do not agree with counsel for appellant and contend that if we are to resort to a common sense viewpoint we are immediately led to the conclusion that if the minute had not been signed until Wednesday counsel would have gone further in his questioning of the clerk and would have proven positively, if such fact was actually known to the witness, when the minute was actually signed. Certainly the mere opinion or thought of a witness is insufficient to prove that purported minutes of proceedings of a board of supervisors, appearing in the minute book of the board and properly signed by the president of that body, do not constitute the true and correct minutes of the board and facts therein stated. The minute introduced is dated May 1, 1944, signed by the president of the board, appears in the proper minute book used by the board for the entry of its proceedings during that period and there is absolutely no positive evidence in the record in this case to disprove any of the facts stated in the minutes or that same is not a correct record of the proceedings of the board at that time.
In the discussion of the assignment of error regarding the notice calling the election, counsel cites the section of the Code describing the form of ticket to be used at the election. No question was made in the court below and no evidence offered as to the form of the ticket used.
The notice published for the required time by law is in strict conformity with the notice approved by the court in the case of Barron v. Board of Sup'rs of Yalobusha County, 184 Miss. 376, 185 So. 806, cited by appellant, except that the notice makes no reference to the order of the board calling the election but meets all requirements of law in giving notice to the electors of the county of the time and purpose of the election. The Barron case, supra, approves a notice of election signed by the election commissioners and making reference to or giving as their authority an order of the board of supervisors directing that the election be held, but nowhere does the court attempt to fix a rule that the notice would have been invalid had it made no reference to the order of the board of supervisors. Section 3018 of the Code of 1942, the law under which the notice was given and the election in this case held, simply provides that thirty days' notice of said election shall be given and that said notice contain a statement of the proposition to be voted on at said election, and the notice so published in this case certainly complies with the statute. The notice was published for the time and in the manner required by law, contained a complete statement of the purpose of the election and was signed by the election commissioners of the county whose duty it is under the law to give notice to the electors of the county and perform other duties necessary in holding elections.
Argued orally by C.A. Bratton, for appellant, and by J.W.T. Faulkner, for appellee.
The Court is in agreement that none of the assignments of error require a reversal of this cause, save only Nos. 2 and 3, which attack the validity of the order of the board, dated May 1, 1944, ordering the referendum election upon the issue whether the traffic in beer and light wines should be excluded from the county.
Two of the members of the Court, Judges L.A. SMITH, SR., and GRIFFITH, are of the opinion that the evidence is conclusive that this order was not signed by the president of the board of supervisors until some time after the adjournment day of the May meeting and is therefore void. Judges ALEXANDER, ROBERDS, McGEHEE, and the CHIEF JUSTICE are of the opinion that the finding of the trial judge to the contrary is not manifestly wrong nor without sufficient basis, although Judge McGEHEE thinks that the finding of the trial court was contrary to the greater weight of the evidence. However, a majority of the Court are of the opinion that there is no justification for overturning his conclusion that the evidence did not rise to the degree of requisite certainty.
We do not detail the other assignments, but find that at most they involve irregularities as to directory provisions and do not warrant reversal.