Opinion
No 40419.
March 11, 1957.
1. Appeal — The Power District Act — "person adversely affected" — entitled to appeal from order of Board of Supervisors creating an electric power district.
A power company which was a Florida corporation qualified to do business in Mississippi and with a considerable investment in electrical distribution lines in the connty was a "person adversely affected" by an order of Board of Supervisors of county creating an electric power district and entitled to appeal from the order creating the district. Sec. 5441(9), Code 1942.
2. Franchises — nonexclusive franchise — a valuable right which can be protected in the Courts.
A nonexclusive franchise is a valuable right which can be protected in the Courts.
3. Appeal — The Power District Act — statutes — "any person aggrieved" — entitled to appeal from order of Board of Supervisors creating an electric power district.
Where The Power District Act did not expressly provide a method of appeal from orders creating a power district, an appeal therefrom to Circuit Court is based upon provisions of the general appeal statute from boards of supervisors by "any person aggrieved" and power company referred to in Headnote 1 came within the category of a person aggrieved or adversely affected by the Board's order. Sec. 1195, Code 1942.
4. Counties — Board of Supervisors — tribunal of limited jurisdiction — jurisdiction must affirmatively appear on minutes of the Board.
A Board of Supervisors is a tribunal of limited jurisdiction, and its jurisdiction must affirmatively appear on the minutes of the Board.
5. Board of Supervisors — order creating power districts invalid — where order failed affirmatively to adjudicate that notice of election was published.
An order of Board of Supervisors creating a power district which failed affirmatively to adjudicate that any notice of the election was published and, if so, how and when it was published was invalid. Sec. 5441(4), Code 1942.
6. Board of Supervisors — tribunal of limited jurisdiction — every essential jurisdictional fact must be adjudicated in its minutes.
Since a Board of Supervisors is a tribunal with limited jurisdiction, it must adjudicate in its minutes every essential jurisdictional fact, and unless such is done it has no jurisdiction to proceed, and any action in such matter is void.
7. Board of Supervisors — order creating power district — publication of notice of election for proposed creation — a jurisdictional fact that must be specifically adjudicated in Board's minutes.
Publication of notice of election for proposed creation of electric power district is a fundamental requirement and such jurisdictional fact must be specifically adjudicated in the minutes of the Board of Supervisors. Secs. 3204, et seq., 5439-5462, 5441(8, 9), 5456, Code 1942.
8. Board of Supervisors — order creating power district — jurisdictional fact that notice of election for proposed electric power district was actually given cannot be shown by evidence dehors the minutes.
Jurisdictional fact that notice of election for proposed electric power district was actually given cannot be supplied if not shown on the minutes of the Board of Supervisors by inferences or other information outside of the minutes of the Board, but it must appear affirmatively on the minutes that the notice was actually given. Secs. 3204, et seq., 5439-5462, 5441(8, 9), 5456, Code 1942.
9. Electricity — The Power District Act — liberal construction — jurisdictional requirements for actions of Board requiring publication of notice of election — mandatory.
The statutory provision directing a liberal interpretation of The Power District Act does not change jurisdictional requirements for actions of the Board of Supervisors requiring publication of notice of election for formation of a proposed power district, since the Act expressly requires publication of notice of the election. Secs. 5441(9), 5460, Code 1942.
Headnotes as revised by Ethridge, J.
APPEAL from the Circuit Court of DeSoto County; CURTIS M. SWANGO, JR., Judge.
McClure McClure, Sardis; Fred B. Smith, Ripley; Green, Green Cheney, Byrd, Wise Smith, Jackson; Dick Ramsay Thomas, Senatobia, for appellants.
I. The resolution of the Board of Supervisors entered at its regular June, 1955 meeting undertaking to create the Mississippi Power District, is wholly illegal, invalid and void, because neither the resolution nor the report of the Election Commissioners of said county, set forth in said resolution, contains any statement adjudicating or indicating that a notice of election was ever published, as directed by the order entered at the May, 1955 meeting calling said election, nor as provided by statute. The publication of such notice was jurisdictional, the adjudication of the publication thereof was jurisdictional, and the failure to adjudicate this jurisdictional fact in the resolution vitiates the entire proceedings, as without such adjudication, the Board of Supervisors had no jurisdiction to create the district. Adams v. First National Bank of Greenwood, 103 Miss. 744, 60 So. 770; Aden v. Board of Suprs. Issaquena County, 142 Miss. 696, 107 So. 753; Berryhill v. Johnston, 206 Miss. 41, 49 So.2d 530; Board of Suprs. Lowndes County v. Ottley, 146 Miss. 118, 112 So. 466; Boutwell v. Board of Suprs. Jasper County, 128 Miss. 337, 91 So. 12; Broom v. Board of Suprs. Jefferson Davis County, 171 Miss. 586, 158 So. 344; Craft v. DeSoto County, 79 Miss. 618, 30 So. 204; Ferguson v. Board of Suprs. Wilkinson County, 149 Miss. 623, 115 So. 779; Gilbert v. Scarbrough, 159 Miss. 679, 131 So. 876; Henderson Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716; Hinton v. Perry County, 84 Miss. 536, 36 So. 565; Leech v. Wileman, 179 Miss. 836, 177 So. 12; Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Montana National Bank v. Yellowstone County, 276 U.S. 499, 72 L.Ed. 673; Renfro v. Givens, 207 Miss. 531, 42 So.2d 734; Simpson County v. Burkett, 178 Miss. 44, 172 So. 329; Sec. 170, Constitution 1890; Secs. 5439-5462, 9786, Code 1942; 15 C.J., Sec. 23, pp. 729-30.
II. That the boundaries of the proposed Mississippi Power District, as set forth in the petition asking the creation of same, and in the resolution undertaking to create same, are not coterminous with the boundaries of the Pleasant Hill voting district of DeSoto County, Mississippi, and a proceedings undertaking to create a power district the boundaries of which are not coterminous with one or more election districts, does not comply with the statute, and is wholly void. Adams v. First National Bank of Greenwood, supra; Fergus v. Marks, 231 Ill. 510, 152 N.E. 557; Haley v. State ex rel. Mortimer, 108 Miss. 899, 67 So. 498; City of Hutchinson v. Leimbach, 68 Kan. 37, 94 P. 598, 104 Am. St. Rep. 384; Panama Refining Co. v. Ryan, 293 U.S. 388, 79 L.Ed. 446; Rowe v. Ray, 120 Neb. 118, 231 N.W. 689, 70 A. L.R. 1056; State ex rel. Attorney General v. County School Board, Quitman County, 181 Miss. 818, 181 So. 313; Secs. 1, 2, 14, 33, Constitution 1890; Secs. 3207, 3208, 6179, 6181, Code 1930; 11 Am. Jur., Constitutional Law, Sec. 214 pp. 921-923; 14 Am. Jur., Counties, Sec. 8 p. 189; 18 Am. Jur., Elections, Sec. 13 p. 190; 52 Am. Jur., Towns Townships, Sec. 45 p. 496; 12 C.J., Constitutional Law, Secs. 237, 328 pp. 806, 842; 20 C.J., Elections, Sec. 67 p. 88; 63 C.J., Towns, Sec. 18 p. 106.
III. A Board of Supervisors is a court or tribunal of special and limited jurisdiction, and it may perform only those acts for which it has specific authority, and it has no statutory authority to create a power district with boundaries coterminous with the boundaries of an Election District, established in any manner, except according to the statute, that is, by the Board of Supervisors. Adams v. First National Bank of Greenwood, supra; Craft v. DeSoto County, supra; State v. Cummings, 206 Miss. 630, 40 So.2d 587; Tishomingo County School Board v. Crabb, 170 Miss. 146, 154 So. 345.
IV. The Board of Supervisors of DeSoto County, Mississippi, should not have received and acted upon the petition filed with it on May 2, 1955, asking for the creation of the Mississippi Power District, and said petition should have been abated. Chapple v. National Hardwood (Mich.), 207 N.W. 888, 44 A.L.R. 804; Gully v. Matthews, 179 Miss. 579, 176 So. 277; Harrison v. Illinois Central R. Co., 219 Miss. 401, 69 So.2d 218; Harrison County v. Robertson, 121 Miss. 387, 83 So. 617; Martin v. O'Brien, 34 Miss. 21; Neely v. Martin, 193 Miss. 856, 11 So.2d 435; Shackleford v. New York Underwriters Insurance Co., 189 Miss. 396, 198 So. 31; 1 Am. Jur., Abatement Revival, Sec. 14 p. 27.
V. The Mississippi Power District having been assumed to be created under petition dated April 30, 1955, and filed May 2, 1955, pursuant to order passed June 8, 1955, (R. 702), whereto a Bill of Exceptions was allowed June 17, 1955 (R. 714), and affirmed by the Circuit Court upon April 25, 1956 (R. 721), there was a fundamental change in the law wrought March 29, 1956, whereasto conformity was not and must be and, as a result of the integration of the provisions of said chapter, herein called "Public Service Act", (A) Remand should be to the Supervisors so that they might integrate into that by them done the fundamental changes wrought as to convenience and necessity, or (B), Dismissed. Adams v. Yazoo M.V.R. Co., 77 Miss. 194, 24 So. 200; Adams County, Mississippi, Board of Education v. State Educational Finance Commission, 229 Miss. 566, 91 So.2d 524; Alabama Power Co. v. City of Fort Payne, 237 Ala. 459, 187 So. 632, 123 A.L.R. 1337; California Co. v. State Oil Gas Board, 200 Miss. 824, 27 So.2d 542; Cantley Tanzola v. United States (Cal.), 115 F. Supp. 72; Chicago R. Co. v. Commerce Commission, 336 Ill. 51, 167 N.E. 840; Clay County v. McCormick, 207 Miss. 216, 42 So.2d 177; Costas v. Board of Suprs. Lauderdale County, 196 Miss. 104, 15 So.2d 365, 16 So.2d 378; DeBerry v. Holly Springs, 35 Miss. 385; Dixie Greyhound Lines v. American Buslines, 209 Miss. 874, 48 So.2d 584; East Neshoba Vocational High School Bonds v. Board of Suprs., 213 Miss. 146, 56 So.2d 394; Frost v. Corporation Commission, 278 U.S. 515, 73 L.Ed. 483; Garner v. Teamsters, C. H. Union, 346 U.S. 485, 98 L.Ed. 228; Houck v. Little River Drainage District, 239 U.S. 254, 60 L.Ed. 266; Illinois Central R. Co. v. Mississippi Public Service Commission, 220 Miss. 176, 71 So.2d 176; International Union v. Underwood Corp., 219 F.2d 99; Klaas v. Continental Southern Lines, 225 Miss. 94, 82 So.2d 705; Love v. Town of Carthage, 218 Miss. 11, 65 So.2d 568; Martin v. O'Brien, supra; Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 95 L.Ed. 912; Oliphant v. Carthage Bank, 224 Miss. 386, 80 So.2d 63; Orrell v. Bay Manufacturing Co., 83 Miss. 800, 36 So. 561; Payne Bus Lines v. Jackson City Lines, 220 Miss. 180, 70 So.2d 520; Ritchie v. City of Brookhaven, 217 Miss. 860, 65 So.2d 436; State ex rel. Attorney General v. County School Board, Quitman County, supra; State ex rel. Jones v. Brown, 338 Mo. 448, 92 S.W.2d 718; Stone v. Browne, 200 Miss. 823, 30 So.2d 96; Stone v. McKay Plumbing Co., 200 Miss. 792, 26 So.2d 349, 30 So.2d 91; Texas P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 51 L.Ed. 553; Tri-State Transit Co. v. Dixie Greyhound Lines, 197 Miss. 37, 19 So.2d 441; United A.A. A.I.W. v. Wisconsin Employment Relations Board, 100 L.Ed. 666; City of Vanceburg v. Plummer, 275 Ky. 713, 122 S.W.2d 772; Weber v. Anheuser-Busch, 348 U.S. 468, 99 L.Ed. 546; Wilkinson County v. Tillery, 122 Miss. 515, 84 So. 465; 7 U.S.C.A., Secs. 901-914; Secs. 1195, 7688 et seq., Code 1942; 12 Am. Jur., Constitutional Law, Sec. 417 p. 48; 50 Am. Jur., Statutes, Sec. 337 pp. 328; Anno. 18 A.L.R. 2d 552; 73 C.J.S., Public Utilities, Sec. 56 p. 1126; 82 C.J.S., Statutes, Sec. 360 p. 787; 80 Cong. Record, 2752, 2755, 2758, 5308; 1936 Mississippi House Journal, pp. 528, 576; Pond on Public Utilities, p. 10.
VI. No power district may be created and maintained under the Act when the area, wherein the district is to be, is, as at that date, served with electricity. The Act authorizes the formation of a district as a corporate entity only when in that area the system may be "created" and "maintained" — public convenience and necessity so demanding. Alexander v. Edwards, 220 Miss. 699, 71 So.2d 785; Bell v. Mississippi Orphans Home, 192 Miss. 205, 5 So.2d 214; Board of Suprs. Tishomingo County v. Blissit, supra; Cantley Tanzola v. United States, supra; City of Pascagoula v. Krebs, 151 Miss. 676, 118 So. 286; Crittenden v. Booneville, 92 Miss. 277, 45 So. 723; Dixie Greyhound Lines v. American Buslines, supra; Federal Com. Commission v. RCA Com., Inc., 346 U.S. 86, 97 L.Ed. 1470; Ferguson v. Board of Suprs. Wilkinson County, supra; Garner v. Teamsters, C. H. Union, supra; H. L. Delivery Service, Inc. v. Mississippi Public Service Comm. (Miss.), 35 So.2d 713; Jefferson Standard Life Ins. Co. v. Noble, 185 Miss. 360, 188 So. 289; Kennington v. Hemingway, 101 Miss. 259, 57 So. 809; Kentucky Utilities Co. v. Public Service Comm. (Ky.), 252 S.W.2d 885; King v. City of Louisville, 207 Miss. 612, 42 So.2d 813; Leech v. Wileman, supra; Lincoln County v. Butterfield, 111 Miss. 847, 72 So. 274; McCool v. Blaine, 194 Miss. 221, 11 So.2d 801; Mississippi Power Light Co. v. Town of Batesville, 187 Miss. 737, 193 So. 814; Oliphant v. Carthage Bank, supra; South Mississippi Airways v. Chicago Southern Airline, 200 Miss. 329, 26 So.2d 455; 165 A.L.R. 906; State v. Newton, 191 Miss. 611, 3 So.2d 816; State Board of Education v. City of Aberdeen, 56 Miss. 518; State ex rel. Howie v. Benson, 108 Miss. 779, 67 So. 214; State ex rel. Jones v. Brown, supra; Tennessee Elec. Power Co. v. TVA, 306 U.S. 118, 83 L.Ed. 543; Thompson v. Texas Mexican R. Co., 328 U.S. 134, 90 L.Ed. 1132; Tishomingo County School Board v. Crabb, supra; United States v. Champlin Rfg. Co., 341 U.S. 290, 95 L.Ed. 949; Secs. 2391, 2461, 2464, Code 1930; Secs. 3223, 3251, 3357, 3396, 3578, Code 1942; Chap. 149, Laws 1916; Chap. 317, Laws 1934; 50 Am. Jur., Statutes, Sec. 305 p. 291; 21 C.J.S. 1037; 82 C.J.S., Statutes, Sec. 388; 91 C.J.S. 768; Baum, Power District Legislation, XXVI National Municipal Review, 28.
VII. The Act does not authorize electrical service without the area of the district; and this district, having been formulated upon the express right thus illegally to do, and the election thereasto being illegal, the formation is void, especially by reason of the Public Service Act. Ashcraft v. Board of Suprs. Hinds County, 204 Miss. 65, 36 So.2d 820; Bailey v. Montgomery-Ward Co. 220 Miss. 544, 76 So.2d 813; Ballard v. Mississippi Cotton Oil Co., 81 Miss. 507, 34 So. 533; Bell v. Mississippi Orphans Home, supra; Berry v. Southern Pine Elec. Power Assn., 122 Miss. 260, 76 So.2d 212; Bishop v. City of Meridian, 223 Miss. 703, 79 So.2d 221; Board of Miss. Levee Comrs. v. Kellner, 189 Miss. 232, 196 So. 779; Board of Suprs. Lafayette County v. Parks, 220 Miss. 403, 71 So.2d 197; Board of Suprs. Tishomingo County v. Blissit, supra; Bookout v. Board of Suprs. Itawamba County, 103 Miss. 413, 60 So. 568; Bryant v. Board of Suprs. Yalobusha County, 133 Miss. 714, 98 So. 148; Burks v. Moody, 141 Miss. 370, 106 So. 528, 107 So. 279; Campbell Sixty-Six Express v. Delta Motor Lines, 218 Miss. 198, 67 So.2d 252; Costas v. Board of Suprs. Lauderdale County, supra; Cutrer v. State, 207 Miss. 806, 43 So.2d 385; Dixie Greyhound Lines v. American Buslines, supra; Federal Com. Commission v. RCA Com., Inc., supra; Frost v. Corporation Commission, supra; Gambrill v. Gulf States Creosoting Co., 216 Miss. 505, 62 So.2d 772; Garrett v. Delta Motor Lines, 224 Miss. 559, 81 So.2d 245; Gully v. Jackson International Co., 165 Miss. 103, 145 So. 905; Hays v. Lafayette County, 128 Miss. 543, 91 So. 196; Illinois Central R. Co. v. Mississippi Public Service Comm., supra; In re Winston County School Bonds, 211 Miss. 800, 53 So.2d 17; Kansas Utilities Co. v. City of Paola, 148 Kan. 267, 80 P.2d 1084; Lincoln County v. Butterfield, supra; Love v. Town of Carthage, supra; Marshall v. Williamson (Miss.), 47 So.2d 814; Mayor and Board of Aldermen v. Engle, 211 Miss. 380, 51 So.2d 564; In re Validation Bonds, City of Moss Point, 170 Miss. 886, 156 So. 516; Mississippi Power Light Co. v. Town of Batesville, supra; Nicholson v. Board of Mississippi Levee Com'rs., 203 Miss. 71, 33 So.2d 604; Oliphant v. Carthage Bank, supra; Payne Bus Lines v. Jackson City Lines, supra; Ritchie v. City of Brookhaven, supra; Southern Bus Lines v. Mississippi Public Service Comm., 210 Miss. 606, 50 So.2d 149; State v. Mayor and Comrs. of Greenwood, 157 Miss. 836, 127 So. 704; Steitenroth v. City of Jackson, 99 Miss. 354, 54 So. 955; Tennessee Elec. Power Co. v. TVA, 306 U.S. 118, 83 L.Ed. 543; Tishomingo County School Board v. Crabb, 170 Miss. 146, 154 So. 345; West Bros., Inc. v. H. L. Delivery Service, 220 Miss. 323, 70 So.2d 870; West Bros., Inc. v. Illinois Central R. Co., 222 Miss. 335, 75 So.2d 723; Whitworth v. Mississippi Highway Comm., 203 Miss. 94, 33 So.2d 612; Wise v. Yazoo City, 96 Miss. 507, 51 So. 453; Yazoo City v. Lightcap, 82 Miss. 148, 33 So. 949; 15 U.S.C.A., Sec. 717(f); 16 U.S.C.A., Sec. 831, et seq.; 47 U.S.C.A., Sec. 214; 49 U.S.C.A., Secs. 1, 306-308, 481, 909; Sec. 2452, Code 1930; Secs. 3519, 3577, Code 1942; Chaps. 183-187, Laws 1936; Anno. 49 A.L.R. 1239; Anno. 117 A.L.R. 892; 35 C.J.S. 283; Broom's Legal Maxims, p. 651; 7 Vanderbilt Law Review, Evans, p. 35.
VIII. The Act has been impliedly repealed by Chapter 491, Mississippi Laws of 1950. Berry v. Southern Pine Elec. Power Assn., supra; Burdeaux v. Cowan, 182 Miss. 621, 181 So. 852; Clay County v. Chickasaw County, 64 Miss. 534, 1 So. 753; Commercial Bank v. Chambers, 8 Sm. M. 9; Corley v. Myers, 198 Miss. 380, 22 So.2d 575; Craig v. Dun Bradstreet, 202 Miss. 207, 30 So.2d 798; Dixie Greyhound Lines v. American Buslines, supra; Dugger v. Board of Suprs. Panola County, 139 Miss. 552, 104 So. 459; Elyria Gas Water Co. v. Elyria, 57 Ohio St. 374; Gibbons v. Brittenum, 56 Miss. 232; Gully v. Jackson International Co., supra; Iola v. Hobart, 141 Kan. 709, 42 P.2d 977; Kansas Utilities Co. v. City of Paola, supra; Payne Bus Lines v. Jackson City Lines, supra; Peyton v. Cabaniss, 44 Miss. 808; Planters Bank v. State, 6 Sm. M. 628; In re Savannah Special Consolidated School Dist., 208 Miss. 460, 44 So.2d 545; Seward v. Dogan, 198 Miss. 419, 21 So.2d 292; Southern Railroad Co. v. City of Jackson, 38 Miss. 234; Stone v. Independent Linen Service Co., 212 Miss. 580, 55 So.2d 165; White v. Johnson, 23 Miss. 68; Willmut Gas Oil Co. v. Covington County, 221 Miss. 613, 71 So.2d 184; Anno. 117 A.L.R. 892; 52 C.J.S. 1046; 82 C.J.S., Statutes, Secs. 93, 291 pp. 154, 489.
IX. Formation of Mississippi Power District, if permitted, not effectual to authorize acquisition of existing electric facilities within Pleasant Hill election precinct, the Act having had omitted from its provisions the right to acquire. Cincinnati, W. M.R. Co. v. Wells, 39 Ind. 539; Detroit, Eel River Ill. R. Co. v. Bearss, 39 Ind. 598; Elyria Gas Water Co. v. Elyria, supra; Garrett v. Delta Motor Lines, supra; Kansas Utilities Co. v. City of Paola, supra; Mississippi Power Light Co. v. Town of Batesville, supra; Monadnock R.R. v. Peterborough, 49 N.H. 281.
X. The Act contravenes the State and Federal Constitutions if interpreted as it was by the Supervisors and the Circuit Court. Alabama Power Co. v. City of Fort Payne, supra; Chicago Ry. Co. v. Commerce Comm., supra; Frost v. Corporation Comm., supra; Haley v. State ex rel. Mortimer, supra; Montana Nat. Bank v. Yellowstone County, 276 U.S. 499, 72 L.Ed. 673; Panama Rfg. Co. v. Ryan, supra; Ritchie v. City of Brookhaven, supra; Rowe v. Ray, supra; Schechter Poultry Corp. v. United States, 295 U.S. 495, 79 L.Ed. 1570, 97 A.L.R. 947; Spitcaufsky v. Hatten, 353 Mo. 94, 182 S.W.2d 86; State v. Smith, 353 Mo. 807, 185 S.W.2d 593; State ex rel. Atty. Gen. v. County School Board, supra; State ex rel. Jones v. Brown, supra; Citizens of Stringer v. Gulf, M. O.R. Co., 229 Miss. 1, 90 So.2d 25; Tri-State Transit Co. v. Dixie Greyhound Lines, supra; Arts. I Sec. 1, V, XIV, U.S. Constitution; Secs. 1, 2, 14, 33, Constitution 1890; 11 Am. Jur., Secs. 215, 221, 234 pp. 924, 931-2, 947; 42 Am. Jur., Elections, Sec. 44 p. 339; Anno. 12 A.L.R. 1437; Anno 54 A.L.R. 1105.
Johnson Troutt, Senatobia; Smallwood, Sumners Hickman, Oxford; William Harold Cox, Jackson, for appellee.
I. Appellants have no right and have shown no right or interest to file exceptions to the action of the Board or maintain this appeal. Adams v. Board of Suprs. Union County, 177 Miss. 403, 170 So. 684; Hinton v. Perry County, 84 Miss. 536, 36 So. 565; Hytken v. Bianca, 186 Miss. 323, 188 So. 311; Stokes v. Newell, 174 Miss. 629, 165 So. 542; Secs. 5439, 5441, 5443, 5460, Code 1942.
II. In the organization of the appellee district, every step was taken and every adjudication made required by the statute under which the Board acted. Adams v. First National Bank, 103 Miss. 744, 60 So. 770; Aden v. Board of Suprs. Issaquena County, 142 Miss. 696, 107 So. 753; Board of Suprs. Lowndes County v. Ottley, 146 Miss. 118, 112 So. 466; Berryhill v. Johnston, 206 Miss. 41, 49 So.2d 530; Craft v. DeSoto County, 79 Miss. 618, 30 So. 204; Ferguson v. Board of Suprs. Wilkinson County, 149 Miss. 623, 115 So. 779; Henderson Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716; Leech v. Wileman, 179 Miss. 836, 177 So. 12; Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Noxubee County v. Lang, 141 Miss. 72, 106 So. 83; Peoples Bank of Weir v. Attala County, 156 Miss. 560, 126 So. 192; Potter v. Realty Securities Corp. (Fla.), 82 So. 298; Renfro v. Givens, 207 Miss. 531, 42 So.2d 734; Sides v. Choctaw County, 190 Miss. 420, 200 So. 595; Simpson County v. Burkett, 178 Miss. 44, 172 So. 329; Sec. 178, Constitution 1890; Secs. 5429-5552, Code 1942; 35 Words Phrases 558.
III. The boundaries of the power district are coterminous with the boundaries of the Pleasant Hill voting district, so alleged in the petition and so adjudicated by the Board. Sec. 3207, Code 1942.
IV. Plea and abatement does not lie in this case. Grenada Bank v. Bourke, 110 Miss. 342, 70 So. 449; Sec. 1174, Code 1942.
V. The Legislative Act setting up the Power District is not unconstitutional. Adams v. Board of Suprs. Union County, supra; Alabama Power Co. v. Guntersville (Ala.), 177 So. 332, 114 A.L.R. 181; Hancock v. Louisville N.R. Co., 145 U.S. 409, 12 S.Ct. 969; Mississippi Power Co. v. City of Aberdeen, 95 F.2d 990; Puget Sound v. City of Seattle, 291 U.S. 619, 54 S.Ct. 542; Sec. 178, Constitution 1890; 13 Am. Jur., Secs. 20-21 p. 175.
This is a controversy over the organization of an electric power district in De Soto County. By resolution of June 8, 1955, the Board of Supervisors of De Soto County created and incorporated appellee Mississippi Power District. There was a hearing before the board of supervisors prior to the resolution creating the district, at which appellants, Mississippi Power Light Company, A.S. Henley, and nine other citizens of De Soto County appeared, protesting organization of the district. From the order creating the district, appellants, with a bill of exceptions, appealed to the circuit court. Code of 1942, Section 1195. That tribunal on April 25, 1956, approved and affirmed the board's order of June 8. The circuit court was of the opinion that the organization of the district was in substantial compliance with the statutes. From that judgment this appeal was taken.
1.
Appellee was organized under the Power District Act of 1936. Miss. Laws 1936, Chap. 187, Miss. Code of 1942, Sections 5439-5462. In brief, this act establishes procedures for the creation and incorporation of an electric power district, its method of government, its dissolution, its corporate powers, and financing. Under Code Section 5441 (3) (9), at least ten per cent of the qualified voters in any election unit may present a petition to the board of supervisors declaring "that in the opinion of the petitioners, public convenience and necessity demand the creation and maintenance of a power district." Its boundaries "shall be coterminous with the boundaries of one or more election units," which is defined as an election district. The petition must contain other specific information and averments. Upon receipt of the petition the "board of supervisors shall without delay call an election" in the election unit or units proposed to be included in the district. Section 5441 (4). The question propounded in the ballots is whether the named power district shall be created and established. Section 5441 (4) provides: ". . . each such board of supervisors . . . shall give notice of such election. Such notice shall state the name of the proposed district and describe its boundaries, and shall state the time when such election shall be held and the location of the polling places. The same shall be published at least once a week for at least three consecutive weeks before the date of said election in some newspaper or newspapers having a general circulation within the proposed district."
Qualified electors of the election district in which the proposed power district is to be created vote on the issue. The election is held and conducted in accordance with the general election laws. Code Section 3204, et seq. After the election, the county board of election commissioners must canvass the returns, declare the results of the election, and within ten days file the report with the clerk of the board of supervisors. The board of supervisors must promptly canvass the report, and if a majority of those voting were in favor of creation of the power district, the board "shall order and declare the district created." The board of supervisors then files in the office of the Secretary of State a certified copy of its order creating the power district. After this is done "the creation of such district shall be deemed complete."
The power district consists of five subdistricts with a member of the board of directors from each subdistrict appointed by the president of the board of supervisors. Methods are provided for dissolution of the district. Its powers are enumerated. In general, they are to acquire, construct, operate, and maintain any utility within or without the district, and to sell to the public and to governmental subdivisions heat, light and power service, and any other related service. The board of directors elects a general manager, who shall publish in a newpaper an annual financial report. The district can issue bonds secured by its own property or revenues, and has the power of eminent domain.
The act contemplates the use of public funds by a power district in two respects. Code Section 5441 (8) provides: "All costs properly incurred by the boards of supervisors and the boards of election commissioners of the respective counties in publishing notice of the election, in employing persons to conduct the same, or in performing other duties imposed by the provisions of this Act, shall be paid as other similar expenses of such boards are paid and shall be and become a charge in favor of such boards against the district, to be repaid upon the presentation of proper vouchers therefor to such district, when and as such district has funds available for that purpose."
Section 5456 states: "Any municipality situated within the territorial limits of a district and any county a part of which is so situated, may advance funds to such district to pay the preliminary organization and administration expenses thereof, on such terms of repayment as the governing body of such municipality or county shall determine. Notwithstanding the provisions of any law to the contrary, any such municipality or county is authorized and empowered to borrow money for a period not to exceed one year from the date of such borrowing, for the purpose of making such advances."
Code Section 5441 (9) provides, "No informality in any proceedings or in the conduct of said election, not substantially affecting adversely the legal rights of any citizen, shall be held to invalidate the creation of any district." Section 5460 states that the act is for the purpose of permitting the increased use of electricity in the State; that the powers granted by this act "shall be liberally construed to effectuate the purposes hereof"; and that, "This Act is complete in itself and shall be controlling."
2.
On May 2, 1955, a petition signed by forty-six citizens of the Pleasant Hill Election District or precinct was filed with the Board of Supervisors of De Soto County. The petition asked for the creation of the Mississippi Power District under the 1936 Act, and that the boundaries of the proposed district should be made coterminous with the boundaries of the Pleasant Hill Election District, describing the same. The petition requested that an election be called for the purpose of determining whether such power district should be created.
On May 2, 1955, the board of supervisors entered an order calling an election for the purpose of submitting to a vote the question of the creation of the Mississippi Power District in the Pleasant Hill Election District. The order fixed May 28, 1955, as the date for the election, and directed publication of notice of the election as required by statute. The form of notice was recited in the order of May 2.
On May 6, 1955, appellant, Mississippi Power Light Company, filed a protest against calling the election, and a petition to vacate and set aside the board's order of May 2 calling the election. Also on May 6 the other appellants, taxpayers, filed a similar protest and petition to vacate the order of May 2. On May 11, 1955, the board of supervisors overruled and disallowed these two petitions.
On May 28, 1955, the election was held. The report of the county election commissioners reflected that there were 123 qualified voters in the Pleasant Hill District; that 64 voted in favor of creation of the power district, and 7 against; and that therefore the election was carried for creation of the power district.
On June 6, 1955, appellants filed protests against creation of the Mississippi Power District. The board of supervisors held a hearing on these petitions and protests of appellants. At its conclusion, the board, on June 8, 1955, entered an order overruling appellants' protests and petitions, and declaring the creation of the Mississippi Power District. From this order of the board of supervisors of June 8, appeals were taken to the circuit court and then to this Court.
3.
(Hn 1) Appellee argues that the appellants have no right, and have shown no interest, as affected parties which would warrant them in contesting the board's order. Code Section 5441 (9), quoted above, provides that informalities "not substantially affecting adversely the legal rights of any citizen" do not invalidate the creation of a district, and that any proceedings contesting the validity must be commenced within thirty days from the date of filing the order creating the district with the Secretary of State. Mississippi Power and Light Company is a Florida corporation, qualified to do business in this State, and with a considerable investment in electric distribution lines in De Soto County, including the Pleasant Hill District. Appellee says that the company is not a citizen authorized to appeal such an order, and has shown no resulting damages. We cannot agree. The statute clearly contemplates the availability of judicial review by a person adversely affected by an order creating a power district. (Hn 2) A nonexclusive franchise is a valuable right which can be protected in the courts. Payne v. Jackson City Lines, Inc., 220 Miss. 180, 70 So.2d 520 (1954); Oliphant v. The Carthage Bank, 80 So.2d 63 (1955); see also South Mississippi Airways v. Chicago Southern Airlines, 200 Miss. 329, 26 So.2d 455, 165 A.L.R. 906 (1946). (Hn 3) Moreover, the appeal from the board to the circuit court is based upon the provisions of Code of 1942, Section 1195, which is the general appeal statute from boards of supervisors by "any person aggrieved" by an order of a board. The Power District Act does not expressly provide a method of appeal from orders creating a power district. Hence Section 1195 is pertinent. Appellant company comes within the category of a person aggrieved or adversely affected by the board's order. The other appellants, citizens and taxpayers of De Soto County, qualify also under Section 1195.
4.
(Hn 4) After careful consideration, we have concluded that, because of a serious and fatal jurisdictional defect in the order of June 8, 1955, the creation of appellee-district must be declared invalid and void. Hence we do not reach the numerous other questions raised in appellants' briefs. A board of supervisors is a tribunal of limited jurisdiction, and its jurisdiction must affirmatively appear on the minutes of the board. (Hn 5) Yet the order of June 8 creating the district fails to affirmatively adjudicate that any notice of the election was published, and if so, how, where and when it was published. Nor does the record reflect any other order of the board on its minutes so adjudicating. Code Section 5441 (4), quoted above, requires the board of supervisors to give notice of the election, specifies what the notice shall contain, and provides for the method of its publication.
The order of June 8, 1955, creating the district adjudicates the board met with a quorum present; that the election commissioners filed on June 6 a report of the results of the election; and that "pursuant to resolution adopted by this board" on May 2, an election was held on May 28. The minutes of the board then set forth in full the report of the election commissioners. It recites that "acting pursuant to resolution" of the board of May 2, the election commissioners held the election and it was carried by a stated number of votes for creation of the power district; that "said election was in all respects held in accordance with the provisions" of the election laws and the Power District Act. Following report of the election commissioners, the board of supervisors' minutes creates the Mississippi Power District and describes the territory included therein, divides the district into five subdistricts, and directs the filing of a certified copy of this order with the Secretary of State.
The record reflects that on May 30, 1955, there was filed in the records and files of the board of supervisors a proof of publication of notice of the election in a newspaper on May 5, 12, 19 and 26, 1955. This proof of publication is not in the minutes of the board of supervisors, and the board has made no affirmative adjudication that such notice was given.
(Hn 6) It is well established that a board of supervisors is a tribunal with limited jurisdiction; that it must adjudicate in its minutes every essential jurisdictional fact; and, unless this is done, it has no jurisdiction to proceed, and any action in such matter is void. If notice of the election was not published, the board could not create the district. (Hn 7) Publication of notice is a fundamental requirement of the statute. And such jurisdictional fact must be specifically adjudicated in the minutes of the board. The cases so holding are numerous. For example, in Board of Supervisors of Lowndes County v. Ottley, 146 Miss. 118, 112 So. 466 (1926), there was an election to authorize the issuance of school bonds. The report of the election commissioners and the order of the board, which set forth the results of the election and directed the issuance of bonds, made no reference to notice of the election as required by law. The following month some taxpayers protested issuance of the bonds, and on the same day a proof of publication was filed with the board of supervisors. Holding the bond issue invalid, the Court said: "While the board of supervisors ordered that notice be given by the commissioner of election, it does not appear, from any of the orders of the board in this record, that the board ever adjudicated that the qualified electors had been duly and legally notified of the holding of the election. The qualified electors were entitled to this notice under the statutes in force at the time of the election. This notice was necessary in order to give the board of supervisors jurisdiction over the qualified electors of the Caledonia district. . . . . Neither the report of the election commissioners, nor the order of the board of supervisors directing the issuance of the bonds, made the slightest reference to any notice to the qualified electors of the date and purpose of the election."
In Henderson Molpus Company v. Gammill, 149 Miss. 576, 115 So. 716 (1927), appellant successfully attacked a tax sale. The minutes of the board of supervisors failed to adjudicate or affirmatively show the publication of any notice to taxpayers concerning the filing of the assessment rolls and their being open to public inspection and objections. It was stipulated that in fact the tax assessor gave proper notice by publication in a newspaper. This was held to be insufficient. It was necessary that all jurisdictional facts appear affirmatively. (Hn 8) In Berryhill v. Johnston, 206 Miss. 41, 39 So.2d 530 (1949), appellee successfully attacked a tax sale, on the ground that the board of supervisors at its August meeting failed to affirmatively adjudicate that notice by publication had been given to taxpayers that the board had completed equalization of tax assessments and would at its August meeting hear objections to such assessments. The Court said: "By an unbroken line of decisions, this Court has uniformly held that the giving of such notice is jurisdictional and is necessary in order to confer on the board of supervisors the jurisdiction to equalize and approve the assessment rolls, and the fact that such notice was given must affirmatively appear upon the minutes of the Board of Supervisors." The August minutes stated that notice had been given "as required by law", but it was held that this was not an affirmative adjudication of notice. In other words, the jurisdictional fact that notice was actually given cannot be supplied, as suggested here, by inference or other information outside of the minutes of the board, but it must affirmatively appear on the minutes that notice was actually given. The long line of decisions so holding have dealt with bond issues, creation of school districts, establishment of public roads, the approving of tax assessment rolls, and similar cases. Monroe County v. Minga, 127 Miss. 702, 90 So. 443 (1922); Broom v. Board of Supervisors of Jefferson Davis County, 171 Miss. 586, 158 So. 344 (1934); Simpson County v. Burkett, 178 Miss. 44, 172 So. 329 (1937); Boutwell v. Board of Supervisors of Jasper County, 128 Miss. 337, 91 So. 12 (1922).
Appellee says that the Power District Act simply provides for the organization and incorporation of a power district, and does not deal with the use of public funds; and that therefore these cases should not apply. Nevertheless, under Section 5441 (8), the cost of the election is paid by the county, although it becomes a charge in favor of the board against the power district when and if the district has funds available to pay the debt. Under Section 5456, the county board of supervisors is also given the power in its discretion to use public funds for a loan to the power district "to pay the preliminary organization and administrative expenses thereof, on such terms of repayment as the governing body of such . . . county shall determine." And the county is authorized to borrow money in order to make such advances. Since public funds are used for the election and may be used for preliminary organization and administrative expenses of a power district, it cannot be said reasonably that the long line of cases requiring a board of supervisors to affirmatively adjudicate on its minutes notice of an election are not applicable to proceedings creating a power district. Public funds are involved, and the board is acting as a tribunal of limited jurisdiction.
(Hn 9) Nor do the statutory provisions in Sections 5441 (9) and 5460, directing a liberal interpretation of the Power District Act, warrant the omission of these due process, procedural and jurisdictional requirements for boards of supervisors in the organization of a power district. The Act expressly requires publication of notice of the election. It does not change the jurisdictional requirements for actions of the board.
For these reasons, the order of the board of supervisors of June 8, 1955, creating appellee Mississippi Power District is invalid. The judgment of the circuit court is reversed and judgment is rendered here for appellants. Since this decides the case, and since it cannot be remanded for further proceedings (judgment being rendered here), it is not necessary or proper to pass upon the other issues raised in appellants' briefs.
Reversed and judgment rendered for appellants. Robeds, P.J., and Lee, Arrington and Gillespie, JJ., concur.