Summary
In Simpson County v. Burkett, 178 Miss. 44, 172 So. 329, this Court held that in a county-wide special election on the question whether the sale of beer and light wines should be prohibited thirty days notice is essential to the holding of a valid election.
Summary of this case from State v. HoyleOpinion
No. 32561.
February 15, 1937.
1. INTOXICATING LIQUORS.
County board of supervisors is without power to call election on question of discontinuing sale of beer and light wines in county in response to petition therefor until adjudication that petition contains sufficient number of signatures of qualified electors has been made and has been actually entered on minutes of board (Laws 1934, chap. 171, sec. 2).
2. INTOXICATING LIQUORS.
Statute providing for election on question whether beer and light wines should continue to be sold in county does not require that such election should be held on general election date, but contemplates special election of which electors of county must be given notice (Laws 1934, chap. 171, sec. 2).
3. INTOXICATING LIQUORS.
Statutory provision prohibiting holding of election, on question whether beer and light wines should be continued to be sold in county, oftener than once in two years is inapplicable if election is for any reason invalid (Laws 1934, chap. 171, sec. 2).
4. ELECTIONS.
When statute provides for election submitting matter of county-wide policy to voters of entire county, but prescribes only that election thereunder shall be held under election laws of state, without prescribing necessary notice, court must resort to and apply such of election laws as bear closest analogy to election provided for under statute involved to determine necessary notice.
5. STATUTES.
Statute must be construed, so far as concerns particular question at issue, as nearly as may be in accordance with general system of which it forms a part, and for such purpose statutes on cognate subjects may be resorted to although not strictly in pari materia.
6. INTOXICATING LIQUORS.
Thirty days' notice held essential to holding of valid election on question whether beer and light wines should continue to be sold in county (Laws 1934, chap. 171, sec. 2).
APPEAL from circuit court of Simpson county. HON. EDGAR M. LANE, Judge.
W.M. Lofton, of Mendenhall, for appellant.
The bill of exceptions contains a true and correct copy of each of the various orders of the board of supervisors, and there is nothing in them to indicate that the order dated May 6, 1936, providing for an election was passed on any other date than May 6, 1936, and that the minutes of said board of that date show that the said order was entered on that date, and the said bill of exceptions further shows that everything was regular and done on that date. If as a matter of fact the said order was not entered until May 27, 1936, the only way to take advantage of that would be by a direct appeal from said order, and not by way of collateral attack. The only remedy in this case was to appeal from the order of board of supervisors passed in May, 1936. Section 61, Code of 1930. The only way to get said matter before the circuit court would be to have same embraced in the order of said board and nothing like that was done in this case and neither was there any attempt to procure such an order. This is the well settled law of the land and is fully supported by section 72 of the Mississippi Code of 1930.
So for the reasons set forth herein all of the oral testimony submitted by appellees, over the objection of appellant, was incompetent, and it was fatal error to hold otherwise.
Bridges Hill v. Board of Supervisors, 58 Miss. 817.
The court below further erred in holding that the proper notice of the election in this case was not given.
It will be observed that notice of said election was given by publication in the Simpson County News for three weeks immediately preceding the date of holding the said election and that the publications were made on May 7, 1936, May 14, 1936, May 21, 1936, and May 28, 1936, and we insist that by virtue of said notice, published as aforesaid, that there was a full compliance with the law on that subject. It will be remembered that chapter 171 of the Laws of 1934 does not prescribe the notice to be given, but says that the same shall be given according to the laws of the state. So notice was given by publication, in accordance with sections 6265 and 6267 of the Mississippi Code of 1930, and the said section 6265 says that notice shall be given for "as near thirty days as practicable."
James v. Wilkinson County, 150 Miss. 489, 117 So. 111.
As a matter of fact the court held that the notice to be given in this particular case should be governed by section 310 of the Mississippi Code of 1930, and we insist that the said section 310 could have no application to a matter of this kind.
As a matter of fact, in a situation where it would apply, the statute requires that such petition be signed by twenty-five per cent of the qualified electors of the county, and the question or subject matter with which we are dealing only requires twenty per cent of the qualified electors.
Under the very terms of this statute, if it contained twenty per cent of the qualified electors of Simpson county, or, if as a matter of fact, it had contained one hundred per cent for that matter, the board of supervisors could not by an order have put this law into effect. There was but one thing that the board of supervisors could do in this case, under such a statement of facts, and that was to order an election, which was done, and the question for determination submitted to the qualified electors of the county.
This entire proceeding, including the various orders of said board of supervisors, is in strict compliance with the law on the subject, is a valid exercise of the authority conferred on said board of supervisors, in regular session assembled, and the judgment of the circuit court, attempting to reverse the said orders of said board, should be reversed, and the orders of said board put in full force and effect.
We further submit that the various orders, which form exhibits in the record in this case, and constitute the bill of exceptions in this cause, fully support every contention made by appellant in this case. Should there be a contradiction in the formal part of the bill of exceptions in this case by the exhibits that then and in that event the exhibits shall control.
House v. Gumble, 29 So. 71; McNeill v. Lee, 30 So. 821.
King Berry, of Prentiss, for appellees.
We respectfully submit that there was no order entered on the minutes of the board at its May term, 1936; therefore, the election commissioners were without jurisdiction to hold the election. The board of supervisors can speak only through its minutes. Section 211 of the Code 1930 provides that the minutes of each day shall be read and signed by the president before the final adjournment of the board.
There was not sufficient notice given by the board of supervisors.
There was not sufficient notice given by the election commissioners who were, at the time of the attempted notice, without jurisdiction to proceed with the holding of the election. The law requires that notice shall be given for thirty days. Section 310 of the Code of 1930 provides that a notice of an election on all county-wide propositions shall be made thirty days. No such notice was given in this case. And notice being a jurisdictional fact, therefore the election is a nullity. We submit that the case of James v. Wilkinson County, 150 Miss. 489, 117 So. 111, does not have any application whatever to this case for the reason that the notice in that case involved only a consolidated school district. This case is a county-wide proposition, and comes under the above mentioned section of the code.
We respectfully submit that the lower court was not in error in setting aside the election and holding it a nullity and taking the record as a whole this case should be affirmed.
A.S. Scott, of Laurel, amicus curiae for appellees.
Counsel for appellant says that chapter 171, Laws of 1934, does not prescribe the notice to be given. Let us see about that. Section 23 of chapter 171, Laws 1934, provides that all laws in conflict with or inconsistent thereto, shall be repealed and all laws not in conflict nor inconsistent with chapter 171, Laws 1934, are especially retained. So, the wine and beer election being a matter of county-wide import, and the matter being brought to a vote in only one was, that is, by first presenting a petition of the qualified voters to the board of supervisors (given especial jurisdiction in said matter by chapter 171, 1934 laws) why would not section 310, Code 1930, apply with outstanding pertinency? Counsel for appellant says section 310 has no bearing on this case whatsoever. We respectfully submit that it has all the bearing in the wide world. And why not? We ask again, why not? But opposing counsel says it has no bearing because he says that section 310 provides for twenty-five per centum of the voters to petition the board; therefore, it could not be pertinent, because chapter 171, Laws of 1934, provides for only twenty per centum of the voters to petition the board for an election. We simply answer this contention by citing section 23 of chapter 171, supra, and say that twenty-five per centum has been repealed in favor of twenty per centum, as far as wine and beer elections are concerned.
That twenty-five per centum, necessarily conflicts with twenty per centum and, therefore, twenty per centum of the qualified voters is all that is required to petition the board to call an election on the wine and beer question. This is a logical and conclusive answer to counsel's objection on this ground.
It was the intent of the Legislature that where there was any existing laws which would not conflict with the said chapter 171. Laws of 1934, nor be inconsistent thereto, that said laws should be especially retained and should govern with full import and verity. Since this is so, then it is clearly the law that on a petition to a board of supervisors calling for a wine and beer election, that thirty days' notice should be given.
If there was no section 310, then the court, in the absence of any statute fixing the time for notice, would have to depend on some statute other than section 310, Code 1930. But since there is such a section as 310, and it especially provides for petitions by voters touching county-wide matters, calling for election, and the wine and beer laws also providing for the same, why should court pass up the existing statute known as section 310, and go hunting for and applying other sections of existing statutes which have to do with filling vacancies in public office? We say this court is not going to do it; that Your Honors will not give it sustained serious consideration.
Argued orally by W.M. Lofton for appellant, and by Ovie L. Berry, for appellee.
At the May, 1936, term of the board of supervisors of appellant county, a petition of more than 20 per cent. of the qualified electors of the county was presented requesting the board to call an election under section 2, chapter 171, Laws 1934, to determine whether beer and light wines should continue to be sold in the county. The board examined this petition and found that it contained the requisite number of names of qualified electors, and decided to order an election to be held on June 2, 1936. The clerk orally informed the election commissioners, and they published notice in a public newspaper published in the county in the issues of May 7, May 14, May 21, and May 28, more than three weeks but less than thirty days before the date fixed for the election. The board adjourned on May 6, but the aforementioned order making the jurisdictional adjudication, and ordering the election, was not actually spread on the minutes until May 27, 1936, and the minutes were not signed by the president of the board until the last-mentioned day. Therefore, there were but six days from the time of the entry of the order until the election. The election resulted in a majority for the exclusion of beer and wine, and appellees, who were licensees and interested in the sale of said beverages, protested by written objections filed at the June, 1936, term of the board, raising the above questions, among others.
The board overruled the protests and allowed a bill of exceptions which set up the foregoing facts, together with others, and upon the hearing thereof the circuit judge held the proceedings invalid and the election void, from which judgment the county has appealed.
In ordering an election under the statute here involved, the board proceeds as a tribunal of special and limited jurisdiction; so that it is a jurisdictional prerequisite that the statutory petition be presented to the board and that the board examine the same and adjudicate that the petition contains the number of names of qualified electors prescribed by the statute; and there is no power in the board to order an election in response to such a petition until that adjudication has not only been made, but also has been actually entered on the minutes of the board. In Broom v. Board of Sup'rs, 171 Miss. 586, 593, 594, 158 So. 344, 345, the principle involved was fully discussed and there it was said: "When a court of general jurisdiction has proceeded with a case, it will be presumed that the court has ascertained that it had jurisdiction to act, and no special adjudication thereof on the minutes of the court is required. 15 C.J., pp. 827, 828. But as to tribunals of special and limited jurisdiction, no such presumption is indulged; so that not only must such a tribunal inquire and determine whether it has jurisdiction to proceed, first before it does proceed, but there must be entered upon the minutes of the tribunal of special and limited jurisdiction the affirmative recitals to the effect that the tribunal has inquired into the facts which give it jurisdiction, and that the tribunal has found to exist every fact which is essential to the exercise of its jurisdiction in the particular matter. . . . Board of Supervisors v. Ottley, 146 Miss. 118, 129, 112 So. 466; West v. Town of Waynesboro, 152 Miss. 443, 449, 119 So. 809. See, also, Adams v. First Nat. Bank, 103 Miss. 744, 60 So. 770; Boutwell v. Board of Sup'rs, 128 Miss. 337, 343, 91 So. 12; Great Southern Lumber Co. v. Jefferson Davis County, 133 Miss. 229, 235, 97 So. 545; Gilbert v. Scarbrough, 159 Miss. 679, 686, 131 So. 876. Without an adjudication of the essential jurisdictional facts and the entry of that adjudication upon the minutes, the facts had as well not exist at all." Inasmuch as the jurisdictional order was not actually entered until May 27, there was between that date and June 2d, the day of the election, such insufficient period of time as to make it obvious and beyond the range of any sort of fair argument that no proper or reasonable notice to the voters was thereby given.
But appellant contends that the oral evidence by which it was shown that the said jurisdictional order was not entered until May 27, is inadmissible; that because the minutes now show on the face thereof that the order was entered on May 6, the day of the adjournment, and that the president of the board signed the minutes on that day, it is incompetent to prove to the contrary by parol evidence. This contention is well supported by the texts, see for instance 10 Ency. Ev., p. 956, and by several of our early cases; but considerable difficulty is presented by our late decisions, particularly by Watson v. State, 166 Miss. 194, 146 So. 122, wherein it was held that it could be shown by parol evidence that the minutes of the circuit court were not signed before adjournment, as required by section 750, Code 1930, which requirement also now applies to the minutes of the board of supervisors as is seen by the concluding sentence of section 211, Code 1930, and which requirement in its present terms was not included in older statutes. Another interesting recent case is Hammond-Gregg Co. v. Bradley, 119 Miss. 72, 80 So. 489, wherein the danger of allowing minutes to stand open after actual adjournment is pointed out.
We are informed that, throughout the state, many boards of supervisors instead of obeying said section 211 will allow the clerk or the attorney of the board merely to take notes of the orders to be entered, and that after the board has adjourned the orders will be drawn out and entered on the minutes, and when this has been done the president will be notified, whereupon he will call at the clerk's office and sign the minutes as of the day of actual adjournment, so that the other four members of the board never see the minutes nor hear them read. And we are also informed that under this practice, orders are sometimes prepared after adjournment in respect to matters which never came before the board in session, but that such orders so drawn would be taken around to the individual members of the board and, upon consent of all of them, the order would be written upon the minutes and afterwards the minutes would be signed by the president as of the day of adjournment.
It is thus made apparent that serious consequences would inevitably result if we should hold that section 211 is mandatory and may be inquired into by parol, as was involved in the Watson Case, supra, in respect to the minutes of the circuit court, and, on the other hand, the dangers of the allowance of the practices mentioned in the preceding paragraph are equally apparent. What the boards should do is to recess to a fixed day when all the minutes will have been entered and when upon reconvening the completed minutes can be read to all the members or a quorum and then signed by the president. We have determined that by reason of the seriousness of the question which we have been discussing to pretermit decision of it at this time, trusting that with what we have said there shall be such a return to obedience to the statute, section 211, that it will not hereafter be necessary to decide the far-reaching question.
We do not decide the aforementioned question, as it is unnecessary so to do in this case, for the further reason that we deem it more important, so far as concerns the statute now under consideration, to decide the question of the notice required to be given the qualified electors of the county when an election is ordered under the statute. The only provision in the statute bearing upon that question is that the election shall be held "under the election laws of the state." It has never anywhere been contended, and evidently was not the purpose of the statute, that these elections could be held only on general election dates. Manifestly, special elections were contemplated and that public notice should be given the electors of the county of the date and purpose of the said special election.
Elections in a number of counties have been held under the statute, and as a result of the failure of the statute to prescribe in express terms the notice necessary to be given, we are informed that there has been such a diversity of opinion upon that point that these elections have been held upon notices varying all the way from fifteen to thirty days; and, as other counties will be holding such elections, we say, therefore, that we deem it the more important that we decide that question in this case, rather than the question first discussed, to the end that future elections under this statute may be validly held, and that as to those heretofore held under an insufficient notice, new proceedings may be taken, if desired, so as to conform to the ruling which we herein announce; in which connection we must add that the concluding provision of section 2 of the statute to the effect that an election on this question shall not be held in any county oftener than once in two years has no application or reference to an election which is for any reason invalid for an invalid or void election is no election and therefore does not prohibit another upon the same subject.
The statute having failed to expressly prescribe the notice necessary to be given, many of the bar, as already noted, and some of us here have been under the impression that the case, James v. Board of Sup'rs, 150 Miss. 489, 117 So. 111, is applicable and controlling. In that case it was held that eighteen days' notice was reasonable and sufficient for a school district election; but that controversy involved only a small part of the county and wherein only forty-eight votes were cast. Upon prolonged consideration and repeated conferences, we have concluded that we would not be warranted in extending or enlarging upon the decision in that case so as to make it apply to or include a matter affecting the entire county and of the nature here being considered, particularly in view of the closer analogy of those particular statutes providing for elections upon general county-wide propositions which we think are controlling in a matter such as we have here before us, and to which statutes we shall now refer.
When a statute provides for an election submitting a matter or matters of county-wide policy to the voters of the entire county but prescribes only that the election thereunder shall be held under the election laws of the state and is silent as to the notice necessary to be given it becomes the duty of the court to resort to and apply such of the election laws as bear the closest analogy to the election provided for under the statute presently being considered, 59 C.J., p. 1041 et seq.; or to state the same principle in other words, a statute must be construed, so far as concerns the particular question at issue, as nearly as may be in accordance with the general system of which it forms a part, and for this purpose statutes upon cognate subjects may be resorted to although not strictly in pari materia. Lewis' Sutherland Statutory Construction (2 Ed.), p. 848; 25 R.C.L., pp. 1052, 1053, note 15. Applying and following the foregoing settled rules, we have concluded that sections 310 and 311, Code 1930, are here the closest of all among our statutes in point of analogy.
Section 310 reads as follows: "Unless otherwise specifically required by law, the board of supervisors of any county shall upon the filing of a petition touching any matter affecting the entire county and over which it has jurisdiction, signed by twenty-five per cent. of the qualified electors of the county, either pass an order putting said proposition in force and effect or immediately submit the same to a vote of the qualified electors of the county, after giving thirty days' notice of said election, said notice to contain a statement of the proposition to be voted on at said election. If said election shall result in favor of the proposition petitioned for, the board of supervisors, shall pass the necessary order, to put the said proposition in force and effect. In the event the election shall result against the proposition submitted, no other election shall be held on the same, or substantially the same proposition within twelve months of the date of the prior election: Provided that this section shall not apply to the creation of taxing districts;" and section 311 is in the following words: "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. In making up his ticket the voter shall, if he favors the proposition, make a cross (x) opposite the words, `For the Proposition' on his ticket; or if he does not favor the proposition, he shall make a cross (x) opposite the words, `Against the Proposition.'"
It will be noted that the petition mentioned in those sections require 25 per cent. of the qualified votes, whereas the petitions here require only 20 per cent., and it will be seen also that the board cannot put the petitions in effect on the receipt thereof as to the beer and wine statute, except after election. But even with these differences, there are no other statutes to which resort may be had with any such assurance and dependability as to closeness of analogy as these two as respects the submission to the voters of a county-wide proposition of the nature of that here involved. Therefore, under the rule of statutory construction hereinabove stated, the quoted sections must be applied with the exceptions mentioned; and as they require thirty days' notice, the learned circuit judge was correct in so holding and his judgment will be affirmed.
Affirmed.