From Casetext: Smarter Legal Research

Sparks v. Reddoch

Supreme Court of Mississippi, In Banc
Jul 6, 1944
18 So. 2d 450 (Miss. 1944)


No. 35643.

June 12, 1944. Suggestion of Error Overruled, July 6, 1944.


A petition for an election regarding transportation, storage, sale, distribution, receipt and manufacture of wine and beer in county consisting of two judicial districts was not required to show that more than 20 percent of qualified electors of each district petitioned for the election (Code 1942, sec. 10208).


The fact that order of county board of supervisors determining sufficiency of petition for an election regarding transportation, storage, sale, distribution, receipt, and manufacture of wine and beer in county and ballots used in the election submitted to the voters the right also to exclude the possession of wine and beer did not vitiate the election (Code 1942, sec. 10208).


The amount of attorney's fees to be allowed for dissolution of an injunction is addressed to chancellor's discretion.


Allowance of $800 to county law enforcing officers for attorney's fee against plaintiffs upon dissolution of injunction enjoining officers from carrying out order of board of supervisors prohibiting sale, etc., of wine and beer in county was not an abuse of discretion (Code 1942, sec. 10208).

APPEAL from the chancery court of Jones county, HON. D.M. ANDERSON, Chancellor.

A.S. Scott, of Laurel, for appellants.

The lower court committed error in sustaining the demurrer to petitioners' bill of complaint and dissolving the injunction. The equity court, under the allegations of the bill of complaint, had jurisdiction in said cause. We take it to be axiomatic that the chancery court in this state has jurisdiction to issue injunctions to prevent irreparable or probable irreparable injuries arising out of the execution of void laws. It is further our understanding that a chancery court on a bill of complaint setting out grounds in cases such as this, attacking the lack of jurisdiction of the board of supervisors, if proven, will be sustained by the court in a collateral attack; that in acts of the said board involving jurisdictional power, the court has jurisdiction in a collateral proceeding to enjoin irreparable or probable irreparable injury through the carrying out of an order of the board void ab initio. So, the question for this court to first decide in passing upon whether or not the equity court had jurisdiction in said cause is to determine the validity vel non of the acts of the board of supervisors. If this court holds that the orders of the board in the said wine and beer election are void, then this court certainly will hold that the chancery court had jurisdiction in said cause, and that the lower court erred in sustaining the demurrer to petitioners' bill of complaint, and further erred in dissolving the injunction.

The chancery court has jurisdiction to issue preliminary injunctions, and once taking jurisdiction could conclude said case.

Board of Sup'rs of Simpson County v. Buckley, 85 Miss. 713, 38 So. 104; Hinton v. Board of Supervisors of Perry County, 84 Miss. 536, 36 So. 565; Sovereign Camp, W.O.W., v. Durr, 186 Miss. 850, 192 So. 45; Adams, State Revenue Agent, v. Capital State Bank, 74 Miss. 307, 20 So. 881; Wood v. Master Schools, Inc., et al. (Ala.), 130 So. 178; Constitution of 1890, Sec. 147.

If it is made to appear to the satisfaction of the court that an emergency or case of pressing necessity for the issuance of a temporary injunction exists, and that irreparable injury will probably result if the granting of the injunction is delayed until after notice and hearing, an order for such injunction will usually be issued without notice.

Glover v. Falls, 120 Miss. 201, 82 So. 4; Alexander v. Woods, 103 Miss. 869, 60 So. 1017; New York v. Connecticut, 4 Dall. 3, 1 L.Ed. 715; Jones v. Dimes, 130 F. 638; Ex parte Martin, 13 Ark. 198, 56 Am. Dec. 321; Builders' Supply Co. v. Acton, 56 Fla. 756, 47 So. 822; Jackson v. Byne, 56 Ga. 525; Davis v. Rose, 208 Ill. App. 329, 188 Ill. 19, 58 N.E. 611; Indiana Cent. R. Co. v. State, 3 Ind. 421; Fees v. Mechanics' State Bank, 84 Kan. 828, 115 P. 526, L.R.A. 1915A, 606; State ex rel. Lafitte v. Judge of Division C, 51 La. Ann. 1768, 26 So. 374; Thompson Scenic R. Co. v. Young, 90 Md. 278, 44 A. 1024; 32 C.J., Secs. 499, 500, 501, notes 71, 73, 74, 76, 78.

The order of the board of supervisors calling the election, and the election and subsequent exclusion order by the board was void ab initio, because the board of supervisors utterly failed to enter on its minutes an order finding and adjudicating that 20 percent of the qualified voters of the Second Judicial District, or of the First Judicial District, duly petitioned the board for the calling of a wine and beer local option election.

Hinton v. Board of Supervisors of Perry County, supra; Mississippi Sawmill Co. v. Douglas, 107 Miss. 678, 65 So. 885; Crump v. Board of Sup'rs of Colfax County, 52 Miss. 107; Hunter v. Bennett, 149 Miss. 368, 115 So. 204; Pidgeon Thomas Iron Co. v. Leflore County, 135 Miss. 155, 99 So. 677; State ex rel. Knox v. Board of Supervisors of Grenada County, 141 Miss. 701, 105 So. 541; Alfred v. State, 37 Miss. 296; Lindsley v. Board of Sup'rs of Coahoma County, 69 Miss. 815, 11 So. 336; Wilkins v. State, 75 Fla. 483, 78 So. 523; Buntin v. Witherow, 15 Pa. Dist. 334, 33 C.J., Sec. 265, Note 61; Constitution of 1890, Sec. 260; Laws of 1906, Ch. 169; Laws of 1934, Ch. 171; 33 C.J., Sec. 269, Note 71.

The orders of the board of supervisors and the notice to the voters as well as the ballot in question are void, because they did not comply with either Section 310 or 311 of the Code of 1930.

Simpson County v. Burkett, 178 Miss. 44, 172 So. 329; Parvin v. Wimberly, 130 Ind. 561, 30 N.E. 790, 15 L.R.A. 775, 30 Am. St. Rep. 254; Wood v. Green, 265 Ill. 39, 106 N.E. 504, Ann. Cas. 1916A, 707; People v. St. Clair, 15 Mich. 85; Opinion of Justice, 271 Mass. 582, 171 N.E. 294, 69 A.L.R. 388; Matter of Merow, 99 N YS. 9, 112 App. Div. 562; Hillsborough County v. Henderson, 45 Fla. 356, 33 So. 997; Stern v. Fargo (N.D.), 122 N.W. 403, 26 L.R.A. (N.S.), 665; Carlson v. Helena, 39 Mont. 82, 102 P. 39, 17 Ann. Cas. 1233; Brooks v. Secretary, 257 Mass. 91, 99, 153 N.E. 322; People v. Worley, 260 Ill. 536, 103 N.E. 579; People v. Myers, 256 Ill. 529, 100 N.E. 211; Harvey v. Cook County, 221 Ill. 76, 77 N.E. 424; In re Taylor, 150 N.Y. 252, 44 N.E. 790; Drummond v. Columbus (Neb.), 285 N.W. 109, 286 N.W. 779; Wis. Power Light Co. v. Public Service Commission (Wis.), 286 N.W. 588, 122 A.L.R. 1139.

Compare Martin v. Board of Supervisors of Winston County, 181 Miss. 363, 178 So. 315; Hall et al. v. Franklin County, 184 Miss. 77, 185 So. 591, 593.

A ballot not prepared in accordance with law shall not be deposited or counted.

State v. Saler, 25 Nev. 131, 58 P. 284, 50 P. 546, 63 P. 128, 83 Am. St. Rep. 573, Ann. Cas. 1912A, 171 et seq.; Code of 1930, Sec. 6241; 9 R.C.L. 1061.

If a demurrer is filed to the whole bill and the bill makes any case for equitable relief, then demurrer will be overruled.

New Orleans N.E.R. Co. v. New Orleans, G.N.R. Co., 107 Miss. 453, 65 So. 508; Canton Cotton Warehouse Co. v. Potts, 68 Miss. 637, 10 So. 59; Southern Pine Co. v. Mitchell (Miss.), 19 So. 583; Durham v. Stephenson, 41 Fla. 112, 25 So. 284; Thompson v. Maxwell, 16 Fla. 773; L. N.R. Co. v. Gipson, 43 Fla. 315, 31 So. 230; Griffith's Mississippi Chancery Practice, Sec. 290, p. 299, et seq.

The court grossly erred in allowing $800 as counsel fees for appellees.

Burroughs v. Jones, 79 Miss. 214, 30 So. 605; Riley et al. v. Hardy et al., 185 Miss. 765, 189 So. 514.

Shannon, Beard Pack, of Laurel, for appellees.

Even if the wine and beer election proceedings were void, the chancery court lacked jurisdiction to grant injunctive relief in this instance of a collateral attack thereon.

Collateral attack does not lie where the complaining party has not availed of the statutory remedies which are provided by law.

Blount v. Kerley, 180 Miss. 863, 178 So. 591.

There is a plain, adequate and complete remedy at law.

Code of 1942, Secs. 1195, 1206, 1207.

Having ignored the remedies provided by law, appellants are not entitled to equitable relief, for equity aids only the vigilant.

The election proceedings were not null and void, but legal and valid.

The jurisdiction of the board of supervisors is not limited to the judicial district in which it is meeting, but extends over the entire county, and the wine and beer act provides for elections by counties, not by judicial districts.

Barron v. Board of Sup'rs of Yalobusha County, 184 Miss. 376, 185 So. 806; Lemon v. Peyton, 64 Miss. 161, 8 So. 235; Code of 1942, Sec. 10208; Laws of 1906, Ch. 169.

The order calling the election, the notice thereof and the ballot lawfully and substantially stated the proposition.

Moffett v. Board of Supervisors of Attala County, 181 Miss. 419, 179 So. 352; Martin v. Board of Sup'rs of Winston County, 181 Miss. 363, 178 So. 315; Costas v. Board of Sup'rs of Lauderdale County, 196 Miss. 104, 15 So.2d 365; Code of 1942, Sec. 10208.

The final order of the board of supervisors is not wholly null and void but is legal and valid.

It was not necessary to negative therein the various statutory exceptions and exemptions.

Moffett v. Attala County, supra.

The purely personal rights of consumers which are the subject of the exceptions are not property or civil rights of which equity will take cognizance in this collateral attack, even if the issue had not been withdrawn from the pleadings by stipulations.

Griffith's Mississippi Chancery Practice, Sec. 435.

Since the board of supervisors had jurisdiction of the subject matter, objections to the form of the order can be made only by review in the circuit court.

Code of 1942, Secs. 1195, 1206, 1207.

The court properly allowed, as damages for wrongful issuance of the injunctions, a solicitors' fee of $800. The amount of the fee is within the trial court's discretion and the record discloses no reason why a solicitor's fee should not be allowed.

Griffith's Mississippi Chancery Practice, Sec. 465.

Argued orally by A.S. Scott, for appellant, and by Sam V. Pack, for appellee.

Wine and beer were being legally sold in Jones County. In September, 1943, proceeding under the authority of chapter 171, Laws 1934, and Chapter 224, Laws 1942, Section 10208, 7 Miss. Code 1942, more than 20% of the qualified electors of the county petitioned the board of supervisors to submit to the voters of the county the question whether "the transportation, storage, sale, distribution, receipt, and/or manufacture of such beverages" should be permitted in Jones County. The question was accordingly submitted and the election resulted against permitting such possession, sale, etc. The board of supervisors thereupon declared the result and made the proper order on their minutes to that effect.

Appellants up to that time were engaged in the lawful sale of beer and wine. Thereupon they filed their bill in the chancery court to enjoin appellees, the sheriff of the county and other enforcing officers, from carrying out the order. The cause was heard on bill and demurrer, resulting in sustaining the demurrer and dismissing the bill. From that decree this appeal is prosecuted.

Appellants contend that the proceedings were void on their face for two main reasons: (1) Jones County has two Judicial Districts, Ellisville is the county seat of one District and Laurel of the other. More than 20% of the qualified electors of the whole county, disregarding the Districts, petitioned for the election. In other words, the petition and other proceedings were silent as to whether more than 20% of each District petitioned for the election. This ground of attack is that the law required more than 20% of each of the Districts. (2) The other ground is that neither the proceedings, the ballots, nor the order of the board of supervisors declaring the result excepted therefrom that provision of the statute "that nothing in this section shall prohibit the consumer from possessing or the taking into any county electing to come from under this section, said wines and beers for his personal consumption."

We are of opinion there is no merit in either contention. If the first ground relied on be sound, it simply means that in all respects Jones County was divided into two separate and distinct counties. Chapter 169, Laws of 1906, divided Jones County into two Judicial Districts. The caption of the statute itself fairly states its provisions, it is in this language: "An Act to divide the county of Jones into two Circuit and Chancery Court Districts, and to fix the jurisdiction of the courts, and to provide for holding same in each district, and to locate the county seat in the Second District thereof, and to provide for the building of a courthouse and jail therein, and for the transcribing of all muniments of title of lands lying within the Second District of said county, and to provide for the payment of all expenses incurred in carrying out the provisions of this Act." Nowhere in the statute is there any provision which either expressly or by reasonable implication requires that an election of this character shall be petitioned for by a majority of the qualified electors of each of the separate districts. Section 11 of the Act concludes with this language, referring to the board of supervisors of the county, "their jurisdiction shall extend over the entire county just as if it were not divided into two separate districts." Under the purpose and language of the statute the county acted as a whole in these proceedings and not by districts.

The other question involved was expressly decided in Moffett v. Board of Sup'rs of Attala County, 181 Miss. 419, 179 So. 352. The court used this language in that case: "Neither do we think that the fact that the order of the board and the ballots used in the election submitted to the voters the right also to exclude the possession of wine and beer in the county had the effect of vitiating the election, even though section 2 of chapter 171, Laws 1934, only conferred the right to hold an election for the exclusion of the transportation, storage, sale, distribution, receipt, and manufacture of such beverages. The proposal, as contained in the order of the board and in the ballot, to exclude even the possession of wine and beer in the county, should have had a tendency to increase, rather than diminish, the vote against the exclusion of these beverages, and of which the appellants would not be entitled to complain. At any rate, the order of the board declaring the result of the election and directing the exclusion did not undertake to exclude possession. If it had done so, it would have been ineffective to that extent, since chapter 171, Laws 1934, recognized the right to possess these beverages at any and all events."

Under Chapter 113, Laws of 1908, Sections 2634, 2635 and 2636, 2 Miss. Code 1942, licensed druggists may possess and on a physician's prescription sell alcohol for medicinal purposes, and under certain conditions a minister of the gospel, pastor, priest or other officer of an organized church may possess wine for sacramental purposes. There would be just as much reason for the contention that the election was void because the proceedings did not expressly except such possession and sales.

We pretermit passing on the question whether the chancery court had jurisdiction, because the decision of that question either way would not affect the result.

In the final decree dissolving the injunction the court allowed appellees an attorney's fee against appellants in the sum of $800. It is argued that that action of the court was error. There is no evidence in the record in reference to the fee. It was simply allowed on the record made by the pleadings and the final decree. The allowance of the fee was so largely in the discretion of the chancellor that we decline to interfere with it. The amount of fees to be allowed for the dissolution of an injunction is addressed to the sound discretion of the chancellor; "he knows exactly what services the several solicitors have rendered; he is informed as to the importance of the contest and the responsibility resting upon counsel for the defendant, as well as their actual services. He is familiar with the established usage and practice relative to the amount of fees to be charged in his Court." Mississippi Chancery Practice, Section 465.


Summaries of

Sparks v. Reddoch

Supreme Court of Mississippi, In Banc
Jul 6, 1944
18 So. 2d 450 (Miss. 1944)
Case details for

Sparks v. Reddoch

Case Details

Full title:SPARKS et al. v. REDDOCH et al

Court:Supreme Court of Mississippi, In Banc

Date published: Jul 6, 1944


18 So. 2d 450 (Miss. 1944)
18 So. 2d 450

Citing Cases

Stennis v. Bd. of Suprs. of Clay County

I. In reply to appellants' Point I. Deposit Guaranty Bank Tr. Co. v. Williams, 193 Miss. 432, 9 So.2d 638;…

Miles v. Bd. of Supervisors Scott Co.

Wm. C. Thompson, for appellee. I. The petition filed in said matter was limited to seeking an election upon…