Lemon v. Peyton

64 Miss. 161 | Miss. | 1886

CAMPBELL, J.,

delivered the opinion of the court.

The petition to prohibit the appointees of the board of supervisors from holding the election ordered sets forth as its grounds an alleged disqualification of the members of the board of supervisors, because three of them had signed the petition for an election, and two of them had canvassed for signers to it; that the board had erred in refusing to receive evidence offered by objectors as to the signatures to the petition, and in permitting new names to be added after it was first presented, and because the order of the board is void in that it speaks of voters qualified to vote for members of the legislature. The first ground is untenable, for that would confound all distinction between the functions of one as a citizen and a judge. One does not cease to be a citizen by becoming a judge, and he may vote as his judgment dictates or petition for an opportunity to vote, and does not thereby disqualify himself as a judge in the matter which may come before him. The interest which disqualifies a judge is pecuniary and not political.

The propriety of the rulings of the board of supervisors cannot be called in question by petition for prohibition. That could be done only by appeal.

The point made on the language of the order of the board in speaking of voters qualified to vote for members of the legislature is without force, as one qualified to vote for members of the legislature is a qualified elector for any election under our constitution.

In addition to the grounds set up in the petition, the argument of counsel in this case assails the act of the legislature providing for an election as ordered as unconstitutional on several grounds. Among them is that disposed of by our judgment in Schulherr v. Bordeaux, Sheriff, ante 59.

Another is that the act contravenes the scheme of the constitution for the support of common schools, because schools are required by that instrument to be maintained, and among the revenues devoted by it to their maintenance are “all moneys received for licenses granted under the general laws of the State for the sale of intoxicating liquor or keeping dram-shops.” It is urged that the constitution recognizes the policy of general laws for granting licenses to sell liquors, and founds the common schools in part on this basis for support, and that the legislature may not change this policy thus recognized by the constitution, and may not starve common schools by cutting off this source of supply of means furnished by the constitution.

We have fully considered this objection and reject it as utterly without support in reason or authority. A rule or policy cannot be deduced from the mere recognition of an existing state of things.

Such recognition and a declaration of will based upon it is not a perpetuation of that which is recognized. It cannot be held to prevent change of the conditions recognized, and, besides this, the very constitutional provision invoked for the extraordinary view urged plainly implies the subjection of licenses to sell intoxicating liquor to the laws of the State, those which may at any time be in force, thus embracing the idea of what should at any time be the expressed will of the department intrusted by the constitution with legislative power, i. e., the legislature.

The constitution does not establish any policy or ordain any provision as to licensing or trafficking in intoxicating liquors. As a distinct subject, it is wholly unaffected by that instrument.

Affirmed.