73 So. 612 | Miss. | 1916
delivered tlie opinion of’ file court.
By chapter 527, Acts of the legislature of 1916, approved -January 6, 1916, the legislature authorized the creation of Stone county, composed of territory taken entirely from Harrison county. Following this act, the Governor appointed three commissioners, who held an election in the territory of the new county on the question of the creation thereof. A majority of the qualified electors in the territory embraced within the proposed county voted for its creation. The result .of the election was duly.certified to the secretary of state,.and the Governor issued his. proclamation, declaring .the said county of Stone created. Following this, the Governor appointed the county officers, who assume their respective duties. The county was duly organized, and had been exercising its powers, and functions as a • county for .about a month, when the appellants, P. L. Hatten and B. W. Davis, resident taxpayers, filed their bill in the chancery court of Harrison county against A. W. Bond, supervisor, and other officers of the county of Stone, seeking to enjoin- these officers from issuing a loan warrant of five thousand dollars; from issuing bonds or incurring any expense in maintaining and operating said county government;, and praying that the act of the legislature, authorizing the creation of the new county, be. declared null and void, and that the election, creation, and organization of said county -of Stone be declared null and void, as. being illegal and unconstitutional. The defendants in the court below demurred to the complainants’ bill, which demurrer was sustained by the chancellor, and the complainants below appeal here.
The contentions of. the. appellants, according to the allegations of their bill, ar.e as follows:
First. That said county, of Stone was not legally created, because the three commissioners appointed to hold the election failed to divide into convenient -voting precincts the territory embraced in the proposed*601 county of Stone, and failed to provide for the registration of electors in said territory ten days before said election, as required by said act.
Second. Because the act creating Stone county violates section 260 of the state Constitution, in that it authorizes the creation of said new county upon a majority vote of the qualified electors of the territory embraced in the proposed new county; that the legislature could only authorize the creation of the new county by a majority vote of the qualified electors of the territory embraced in the proposed county and a majority vote of the qualified electors voting separately therefor in the remaining territory of the old county of Harrison.
Third. Because the act creating Stone county violates section 26 of the state Constitution, in that it prohibits one charged with crime from being tried in the county in which the crime was committed.
Fourth. That the act is unconstitutional because section 14 of said act impairs the obligation of contracts.
If we concede, for the purposes of .the discussion, that appellants are such parties as may maintain a bill of injunction in a case of this character, and further concede, for the same purpose, that appellants are not es-topped because of their failure to act until about one month after the county was organized still we think the decree of the chancellor in sustaining the demurrer to the appellants’ bill was eminently correct. We will discuss the different contentions of the appellants in.the order in which they appear above.
As to the first contention of appellants in reference to section 15 of the act: By reading.the act it will be observed that provision is made therein “that the registration books of the county of Harrison shall be the registration books for the purposes of the election to be held in the territory embraced in the county of Stone, . . . and the polling places now established in the county of Harrison and embraced in Stone county
We think that this is sufficient authority for the purposes of holding the election; and the fact that said section 15 provides that qualified electors shall be registered ten days before said election, and that the commissioners, if they see proper, may establish other voting precincts and shall divide the territory into convenient voting precincts, which was not done, does not invalidate the election, as it was discretionary with the commissioners as to establishing new precincts and to register a person ten days before election would not qualify him to vote, and would be a useless proceeding. The appellants make no complaint in their bill that any fraud was perpetrated, or that any qualified elector was denied the right to vote, or that the election was not in all respects fair and regular. Furthermore, the election appears to have been held regularly, the returns thereof certified to the secretary of state, and the Governor proclaimed the county created.
As to the second contention of appellants: The language of section 260 of the state Constitution is plain, and means exactly what it says; that is, that:
£iNo new county shall he formed unless a majority of the qualified electors voting in each part of the county or counties proposed to he dismembered and embraced in the new county, shall separately vote therefor.”
In this case, Stone county was carved wholly • out of Harrison county, and the question of the creation of the county could properly be determined only by a. majority of the qualified electors voting in that part of the county proposed to be dismembered and embraced in the new county. Certainly it does not mean, as contended by counsel for appellants, that this question of creating the new county should have been voted on by the qualified electors in the territory of the proposed new county and also by the qualified electors in the territory of the old, or remaining, county of Harrison.
As to the third contention of appellants, regarding ■section 26 of the Constitution, providing that the accused shall have a public trial by a jury of the county where the offense was committed: We fail to see what interest appellants could have in the constitutionality of this part of the act. It seems that such a question might be raised by one who was charged with crime committed in the Stone county territory, and whose case was pending in Harrison county at the time of the creation of the county of Stone; but at all events, if this particular provision were unconstitutional and void, it could be lifted out of the act, and the other parts and sections could stand without it as a valid act, authorizing the creation of Stone county.
Referring to the fourth contention of appellants, in which it is claimed that the act authorizing the creation ■of Stone county is unconstitutional, in that it impairs the obligation of contracts, it seems that, the only basis for this contention is that Mr. J. A. Huff had a contract with Harrison county to teach the Agricultural High School for three years, and that the high school is now in thg new county of Stone. We cannot see what substantial interest appellants could possibly have in the contract entered into between Mr. Huff and Harrison county. They could be affected only remotely, if at all. The act authorizing the creation of Stone county provides that Stone county shall take care of certain contracts entered into by Harrison county. But if the contention of the appellants were true, in reference to the impairment of this particular contract, still that part of the act could be declared void and the remainder of the acts creating the county held valid and constitutional, and in no view can the appellants successfully claim that this particular part of the act invalidates the whole.
Affirmed*