15 So. 2d 365 | Miss. | 1943
Lead Opinion
Petitions were filed by certain electors under the provisions of Chapter 224, Laws 1942, addressed to the board *120 of supervisors of Lauderdale County, requesting that an election be ordered to determine whether the traffic in light wines and beer should be excluded from the county. Such election was ordered and the board later certified by its minutes that such election had resulted in the exclusion of such traffic. Whereupon, appellants filed their protest against this final order putting the result of the election into effect, setting out that fewer than 20% of the qualified electors of the county joined in the petitions and that certain other irregularities, hereafter set out, made the entire proceedings and election void. The protest was overruled, whereupon protestants filed their bill of exceptions and appealed to the circuit court, pursuant to Chapter 245, Laws of 1940. The appeal was dismissed as not having been filed within ten days after the board's order for the election.
Only two of the assignments of error deal with alleged irregularities in the conduct of the election; all other errors assigned refer to the proceedings antecedent to the adjudication by the board ordering the election in compliance with the petitions. As to the latter assignments, the point is squarely presented whether the decision and order of the board, February 1, 1943, adjudicating the sufficiency of the petitions, is final in view of the failure of protestants to appeal therefrom under Chapter 245, Laws 1940. In this connection, the contentions were that the petitions were first filed in September, 1942, and later petitions in October, 1942, but that these were not acted upon finally until the board's meeting, February 1, 1943, at which time they were adjudged sufficient; further, that the board did not "immediately" submit the issue to the voters as required by Section 310, Code 1930; and that there were fewer than 20% of the electors upon the petitions.
All of the foregoing questions were for adjudication by the board and their decision and action thereon was judicial. Mohundro v. Board of Sup'rs of Tippah County,
Appellants contend that the entire referendum procedure is a single procedural entity and that it is not finally determined until after the ensuing election, citing inter alia, Haynes v. Cass County Court, 135 Mo. App. 108, 115 S.W. 1084. This case is not controlling here, for if in point is at variance with our own decisions. But it is not apposite for the reason that there were here no further details of procedure to be later determined by the board. The complete machinery including the dates for the election and the form of the ballots were set forth in its order of February 1st. If the exercise of the right and duty of appeal may await the outcome of the election, the protestants would be thereby given the privilege of deferring the right of appeal to await a discretion determinable not by what was their duty but what was their desire. Let it be supposed that the subsequent election resulted in a refusal to exclude the traffic. Could the original petitioners thereupon take an appeal raising issues determined by the original order calling the election? Surely they would be similarly precluded. Let it be further supposed that the petitions were rejected and no election *122
ordered by the board. Would they be privileged and required to take their appeal within the statutory period? This question is answered in the affirmative in Spencer v. Washington County,
We do not agree that this order may now be successfully attacked as void in not complying with the requirement of Code 1930, Section 310, that upon the filing of the petition the board shall "immediately submit the same to a vote," etc. and as not according to prospective protestants due process of law. It is contended in this connection that protestants are not "persons aggrieved" within the import of Chapter 245, Laws 1940. A board, careful of its duty and responsibility and considerate as well of the interests of those affected, may be required by practical considerations to delay its decision in order to afford an opportunity to itself and others to examine and verify the petitions and to check their sufficiency. No action therein should be taken until it has determined this fact. Simpson County v. Burkett,
Two assignments relate to the regularity of the election itself. They both involve the validity and application of Chapter 224, Laws of 1942, and the alleged nonconformity of the issue, as disclosed by the ballots, with this Act. The Act provides as follows: "Provided, that if any *123 county, at an election held for the purpose under the election laws of the state, shall by a majority vote of the duly qualified electors voting in the election determine that the transportation, storage, sale, distribution, receipt, and/or manufacture of such beverages, shall not be permitted in such county, then the same shall not be permitted therein. . . . Provided, further that an election to determine whether such transportation, storage, sale, distribution, receipt, and/or manufacture of such beverages shall be excluded from any county in the state, shall on a petition of twenty per centum (20%) of the duly qualified voters of such county, be ordered by the board of supervisors thereof, for such county only; . . ." There is no inconsistency in this language which would require the submitted issue to be whether the traffic "shall not be permitted" instead of whether it "shall be excluded" as was done here.
Lastly, it is contended that the use of the device "and/or" in the statute and upon the ballots created an ambiguity and uncertainty as to the issue before the voters. The implied approval of this procedure in all of the decisions under this act makes it tardy now to assert such view. Moreover, we are unable to see how doubt could remain in the minds of the voters as to what they were voting upon. The petitioners assumed the burden of proscribing the transportation, storage, sale, distribution, receipt and manufacture of light wines and beer, as the statute authorized them to do. It is not in point to argue that in criminal proceedings pursuant to the exclusion order one could not be tried and convicted of all such offenses at once. (Compare Code 1930, Section 1974, where the several forbidden acts relating to intoxicating liquors are stated in the disjunctive.) As indicated by the title to the Act itself, it is the traffic in such beverages that is being dealt with. The statute particularizes the several phases of such traffic.
It is significant that the privileges exercised by appellants were granted in the same statute and identical *124 language as that used in the petitions and ballots by which these privileges were revoked. A statute authorizing the sale and/or manufacture would make it lawful for Costas and/or Kramer Service Co., Inc., to engage in either or both. A denial of the privilege so expressed could mean nothing but that one may engage in neither.
We shall not extend this discussion. The issue before us is not a moral nor a temperance issue. Privileges accorded our citizens, albeit under a mere license, are valuable rights and deserve protection of the law. However, it is the same law which also makes their exercise subject to the expressed will of the citizens. We do not find that the procedure by which such will was implemented was irregular or contrary to the law.
Affirmed.
Dissenting Opinion
Dissenting Opinion
I find no force in later decisions which involve the same statute as here, but where not only was the exact question not raised, but on the other hand the Ferguson case was cited with approval. For these reasons I am constrained to adhere to the former opinion.
I am authorized by the CHIEF JUSTICE to state that he concurs in these views.
Addendum
Upon a further consideration of the case we have concluded that the failure of the appellants to appeal within ten days from the date of the order of the board of supervisors rendered on February 1st, 1943, adjudicating that the petitions for the election contained at least 20 percent of the qualified electors of the county did not preclude them from thereafter challenging the correctness of such adjudication when the final order was entered, following the election held on March 16, 1943, and whereby the traffic in light wines and beer was sought to be prohibited; that the said order of February 1st, 1943, was a preliminary or interlocutory order rendered in the course of such proceedings and was not such a judgment as would finally dispose of the principal issue involved in the proceeding, that is to say, whether or not such traffic should be longer permitted in the county.
Although the board of supervisors was acting judicially in adopting the said order of February 1st, 1943, as was held in the case of Mohundro v. Board of Sup'rs,
In the case of Ferguson et al. v. Board of Sup'rs,
In the case of Day v. Board of Sup'rs,
It follows, therefore, that since the board of supervisors is acting judicially in entering this final order and judgment undertaking to exclude from the county the traffic in question, it is to be conceded that the same is such an order as may be appealed from. And, as was said by the court in the case of Moller-Vandenboom Lbr. Co. v. Board of Sup'rs,
In the case of Martin et al. v. Board of Sup'rs,
In all other respects we adhere to our former opinion, that is to say, in holding that the use of the device "and/or" in the ballot used in the election did not render the election void as creating an ambiguity as to the issue submitted to the voters; and on the several other objections raised to the regularity of the election, but we withdraw the former opinion to the extent, and to the extent only, that it held that the appellants were precluded after the election from showing that the petitions for the election did not contain 20 percent of the qualified electors of the county, upon the theory that not having appealed from the order so adjudicating, within ten days thereafter, they are denied the right to question the sufficiency of such petitions.
The suggestion of error is therefore sustained in part, overruled in part, the former judment of affirmance set aside, and the cause reversed and remanded. Reversed and remanded. *131