Ferguson v. Brown

75 Miss. 214 | Miss. | 1897

Whitfield, J.,

delivered the opinion of the court.

There was no error in overruling the motion to dismiss the appeal of Brown from the order of the board of aldermen. Nor was there error in holding that the burden of proof was on appellants, since the trial in the circuit court was de novo. It was error to hold that the mere payment of taxes for certain parties by Ferguson & Head disqualified them as signers of the petition. In United States v. Foster, 4 Hughes (U. S. Cir. Ct. Rep.), at page 520, it is said: ‘ ‘ The clause in the constitution is one of that class of clauses which all legal and political maxims of construction require to be liberally interpreted and applied. If a citizen’s tax has been paid, and he is otherwise qualified, then, by that fact, he becomes a qualified voter. If it is paid for him by another, not in the way of a bribe, and without an understanding, express or implied, that he is to vote for a particular candidate, then the payment is legal and in every way proper.” And the court, in that case, holds that whether the payment of the taxes was in violation of law or not, the fact of payment qualifies the citizen to vote, although the party paying nmst answer for his violation of the law.

It is not now necessary to pass on this proposition, or to hold what would be the effect of a clear showing that appellants had paid taxes of parties signing the petition on an agreement that, if so paid, they would sign for the purpose of qualifying them to sign. The testimony in this case shows that it was a very common occurrence for parties to pay the taxes of other parties; that perhaps one-fourth of the taxes of the county were paid in that way every year; that some of the persons whose taxes for certain years witnesses for appellee testified had been paid by appellants, had actually been paid for some of the years by themselves, and sometimes by others than appellants; that many of the parties whose taxes were paid by appellants were not even registered in either the city or county; and the tax receipts of many persons whose taxes it was claimed were paid by appellants, were offered in evidence, showing prima faeie that the parties themselves had paid them. The effect of such receipts could of course be overthrown — as in the case of other receipts — by proof; but this, as all the testimony we have recited, and all the testimony on this subject, as to who paid these taxes, and how, made an issue of fact for a jury; and yet the court charged the jury, peremptorily, to find for the appellee. The charge should not have been given.

' Mere payment of taxes of parties who signed the petition, by appellants, did not disqualify them. Payment of taxes may be made by an agent; may be made by one for another without his previous authority, since the other may “adopt and take advantage of the act. ’ ’ All this is too clear for disputation. No objection to. this plain principle can exist in reason or authority; and, so far as authority is concerned, it is definitely settled. State v. Johnson, 11 So. Rep., 862 (top), the able Chief Justice Raney delivering the opinion; State v. Dillon, 14 So. Rep., 396, in which case the court held that, even where the statute provided ‘ ‘ the taxpayer himself paying his own poll taxes, ’ ’ etc., he could pay, nevertheless, through an agent— qui faoit per alium facit per se; and the same doctrine is set out, as settled law, in 6 Am. & Eng. Enc. L., 271, notes 11, 12.

It was also error to refuse to permit Parchman to testify in rebuttal, because he had been under the rule. Sartorius v. State, 24 Miss., 608, 609. The modern and just doctrine on this subject is that, generally, the fact that a witness, placed under the rule, has violated it, goes to his credit, but does not exclude him. The object of the trial is the ascertainment of the truth, and rules of practice, including this one, must be so administered as to secure that end.

It was also erroneous to permit the witness, Tubb, to testify as to what the records in evidence showed. They spoke for themselves.

The court below correctly held that the failure to publish ■the name of the witness to certain signatures, made by proper mark of such signers, did not invalidate the publication. The purpose of § 1580, code of 1892, was to give publicity to the names of those who sign such petitions, and the thing “done or omitted,” which invalidates such publication, must be something the doing or omission of which prevents, or which is done or omitted to prevent, “the publication from being easily read” — e. g., crowding the names, or dispensing with proper capital letters, or things which produce like effect with these. The policy of the law was to discourage the traffic, by requiring those who might be willing to sign a petition which was not to be published, to have their names published. It is the names of those who petition for the license that are to be published, not the names of witnesses to their signatures. No just or reasonable construction of the statutue can hold otherwise, and the action of the learned circuit judge in this particular was correct. Mr. Justice Raney, speaking for the court, in State v. Sumter Co., 22 Fla., at page 5, held, when the statute required the names and the marks to be published, that the omission of the marks did not invalidate the publication, saying, “ The publication of the names identifies the petitioners sufficiently for all the practical purposes for which the publication was intended. ’ ’ We are not called on to decide upon that point, for all the marks here are published, and the only complaint is that the name of a witness to certain signatures, made by “proper mark,” was not itself published. See, also, Polk County v. Johnson, 21 Fla., at page 584, holding that the affidavit to the petition need not be published.

The constitution, section 241, provides that one, to be a qualified elector, must ‘ ‘ have paid, on or before the first day of February of the year in which he shall offer to vote, all taxes which may have been legally required of'him, and which he has had an opportunity of paying, according to law, for the two preceding years,” and must produce to the officer holding the election satisfactory evidence that he has paid said taxes. The petition in this case was presented and filed December 3, 1895, and the order granting the license was entered February 1, 1896. Plainly, the signers’ taxes must have been paid for the years 1893 and 1894, the two years preceding the year 1895, in which they signed. The signing is analogized to voting. Signing is, in this sort of case, a voting for license. State v. Johnson, supra. One who offers to vote at a general election in November, must show that he has paid the taxes for the two years preceding that year, for the taxes of that year would not be delinquent until December 15, and he must have paid the taxes for the two years preceding the year in which he offers to vote.

It is insisted that the order of the board of aldermen granting license is void, because four of the six aldermen and the mayor signed the petition, the argument being that they were thus ‘ ‘ interested in the cause ’ ’ within the meaning of section 165 of the constitution. And many authorities are cited by counsel for appellee to sustain this proposition. Of these authorities, all of which we have carefully examined, two from Nebraska— Foster v. Frost, 41 N. W. Rep., 647, and Powell v. Egan, 60 N. W. Rep., 932 — do squarely support the contention. But three of these cases — City of Dallas v. Peacock, 33 S. W. Rep., 220; Medlin v. Taylor, 13 So. Rep., 311, and Sauls v. Freeman, 4 So. Rep., 527 — hold the exact opposite of the proposition contended for, on reasoning which seems to us unanswerable. The last named case, especially, in which the opinion of the court was delivered by Judge Raney, one of the ablest jurists in the country, contains a collection and analysis of the authorities, and is reasoned with great vigor.

In Rogers v. Cypert, decided by the supreme court of Arkansas, in 1881, the wife and children of the circuit'judge had signed the original petition to the county court, under a local option liquor law, for the prohibition of the traffic, and an application was made to the circuit judge for certiorari to bring up the proceedings had in the county court on this petition. He refused to issue the writ, on the ground that he was disqualified from acting in the case, under the clause of the constitution forbidding a judge from presiding where either of the parties were connected with him by consanguinity or affinity within the degrees prescribed by law. A mandamus was then sued out to compel him to act, and the mandamus was granted on the ground that the “interest” of the wife and children was, though they were technically parties to the proceeding, ‘ ‘ only a common interest with the citizens in the establishment of a wholesome police regulation affecting the whole community, and that they were not, therefore, parties within the sense or spirit of the constitution.

In Webster v. County of Washington, 26 Minn., 220, it is held that ‘ ‘ the ownership of lands contiguous to the line of a proposed county highway which may affect or enhance the value of such lands, is not such an interest as legally precludes the owner from acting as a member of the board of county commissioners, upon a petition signed by himself and others, for establishing the road, ’ ’ the road not passing over his land, and the only benefit accruing to him being the indirect benefit arising from his being a proprietor of land adjacent to the road.

To the same effect are Bowman's case, 67 Mo., 146; Com. v. O'Neill, 6 Gray, 343; and Foreman v. Town of Marianna, 43 Ark., 329, the true test, as we think, being announced in this case, the court saying: “It does not even appear that, on the whole (a case of annexation of territory), the result of annexation would be to increase or diminish taxes. But that is of no importance. This is not a suit of a personal nature concerning property or rights of persons. A general interest in a public proceeding, which a judge feels in common with a mass of citizens, does not disqualify; if it did, we might chance to go out of the state at times for a judge. The ‘interest ’ which disqualifies a judge, under the constitution, is not the kind of interest which one feels in public proceedings or public measures. It must be a pecuniary or property interest, or one affecting his individual rights; and the liability or pecuniary gain or relief to the judge must occur upon the event of the suit, not result remotely, in the future, from the general operation of laws and government upon the status fixed by decision. . . . If he were thereby disqualified, he would be required to renounce all civic privileges.”

This is the test approved in Medlin v. Taylor, Judge, supra, decided by the supreme court of Alabama in May, 1893. In City of Dallas v. Peacock, supra, decided by supreme court of Texas in December, 1895, it was held that “a judge of the court of civil appeals who was a taxpayer in a certain city, was not interested in an action against such city for personal injuries caused by its negligence, within the meaning of the 'Texas constitution, article 5, section 11, providing that no judge -shall sit in any case in which he may be interested. ’ ’ And while the precise point for decision here was not the precise point for decision in Lemon v. Peyton, 64 Miss., 164, the test as to disqualifying interest is held to be as in the cases we have approved. A member of a board of aldermen of a municipal corporation sustains no such relation to that municipal corporation as any officer of a private corporation for pecuniary gain does to such private corporation. A municipal corporation is an auxiliary of government, administering within its sphere governmental functions for the good of the local community. So far, then, as their mere legal right to act on the petition was concerned, we think that they had that legal right.

For the reasons indicated the judgment is reversed and the cause remanded.