76 Miss. 309 | Miss. | 1898
delivered the opinion of the court.
The five assignments of error, as well as the several pleadings in the court below and the action of that court, present really but one question, viz., was the proceedings of the board of supervisors in ordering the local option election void by reason of the failure of the record made by the board in such proceedings to show that the petition upon which the election was ordered was signed by one-third of the qualified electors of the county ?
That the board of supervisors was exercising a limited and special jurisdiction, or authority, in ordering the election, is well settled by the adjudications of this court, the latest of which is the case of Ferguson v. Monroe County, 71 Miss., 524.
It has long been settled in this state that an order of a tribunal exercising a special authority or limited jurisdiction is void unless its record contains a recital of the necessary j urisdictional facts, or that these facts were shown to the satisfaction of the tribunal on hearing of the case and before the order was made. The distinction to be observed in considering j udgments of a court made in the exercise of its general and original jurisdiction and those rendered in the exercise of a limited and special jurisdiction was clearly pointed out in Byrd v. State, 1 How. (Miss.), 247, and this distinction has been kept in view and applied in numberless reported cases decided by this court, and as recently as in the case of Bolivar County v. Coleman, 71 Miss., 832, and in Harris v. State, 72 Miss., 960 (which was a mandamus proceeding like the present case), an order for a local option election made by the board of supervisors at the office of the chancery clerk, which office was in a building separate and apart from the courthouse, was held to be void and open to
The contention of appellee’s counsel, so ably presented in their brief, that the order of the board of supervisors for the election was not void 'because of the failure of the record to show affirmatively the existence of the necessary jurisdictional facts, because the board was authorized by the statute to ascertain and determine whether these facts existed, is undoubtedly the law in a few other states, but it is not the law in this state. This amounts only to the proposition that where the tribunal is authorized to ascertain and determine whether the petition for the election was signed by one-third of the qualified electors, the implication or presumption will be indulged that the tribunal did ascertain and determine the jurisdictional fact. But this presumption cannot be indulged, as has been held by this court in several cases. Bolivar County v. Coleman, supra, and cases there cited.
The action of the court below was not in accordance with the foregoing views, and was erroneous.
Reversed and remanded.