Summary
In Blount v. Kerley, 180 Miss. 863, 178 So. 591, we held that the writ of prohibition may be resorted to in a proper case to prevent vexatious prosecutions under a void ordinance, but not for violation of a valid ordinance; — following the decision of this Court in Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518; and Hurley v. City of Corinth, 97 Miss. 396, 52 So. 695.
Summary of this case from Ford v. EasterlingOpinion
No. 33019.
February 7, 1938. Suggestion of Error Overruled, February 21, 1938.
1. INTOXICATING LIQUORS.
Where no appeal or certiorari was timely taken to review judgment of county board of supervisors adjudging that election had been legally held, and that electors had voted to exclude sale of beer and wine from the county, and prohibiting sales thereof, validity of judgment could not be questioned in proceeding to prohibit prosecution for selling beer and wine (Laws 1934, chapter 171; Code 1930, section 73).
2. CRIMINAL LAW.
A justice of peace had jurisdiction of prosecution for selling beer and wine in county which had voted to prohibit sale of beer and wine (Laws 1934, chapter 171; Code 1930, section 2069 et seq., as amended; Const. 1890, section 171).
3. PROHIBITION.
The writ of prohibition may be resorted to in a proper case to prevent vexatious prosecutions under a void ordinance, but not for violation of valid ordinance.
4. PROHIBITION.
The writ of prohibition will not lie to correct irregularities in judicial proceedings.
5. PROHIBITION.
The writ of "prohibition" is an extra-ordinary writ and is properly issued only in cases of extreme necessity; the office thereof being to prevent an inferior court or other tribunal from assuming a jurisdiction not legally vested in it.
6. PROHIBITION.
A writ of prohibition cannot be availed of or resorted to when the usual remedies provided by law are available.
7. PROHIBITION.
A defendant was not entitled to writ prohibiting justice of peace from entertaining prosecution for selling beer and wine on theory that election on question of excluding sales of beer and wine from county was invalid, where defendant had not obtained license to sell beer and wine (Laws 1934, chapter 171).
8. CRIMINAL LAW.
A court having jurisdiction of crimes of a given character should not encourage vexatious prosecutions, where there is a bona fide doubt of the propriety or necessity of so doing.
9. MUNICIPAL CORPORATIONS.
Where appeals have been taken to test legality of ordinance in proper way, courts having jurisdiction of crime have judicial power to decide what the law is, including question of whether an ordinance is void because of improper method of bringing it into being or because ordinance is unreasonable.
10. PROHIBITION.
The judge, on application being made to him for writ prohibiting prosecution, should deny writ if in his opinion the statute or ordinance under which prosecution is brought is valid.
11. PROHIBITION.
The only effect of prohibiting a prosecution for violation of ordinance is to suspend operation of ordinance until hearing in the particular prosecution either has been brought or contemplated.
12. PROHIBITION.
A writ prohibiting prosecution for violation of ordinance does not authorize violation of ordinance if valid, and does not afford protection for violation of valid ordinance during period of suspension.
APPEAL from the circuit court of Jefferson Davis County. HON. HARVEY McGEHEE, Judge.
Luper Martin, of Prentiss, for appellant.
The only question presented to this court on the matter of notice is whether any notice at all as required by law was given. It is admitted none was given by publication, as required by law, and we submit that none was given by posting, for simply posting at the courthouse door for 30 days would not be notice as required by law and there is nothing in the record to show that any affidavit of posting as required by Sec. 1596 of the Code 1930 was made.
We take it that, in view of the decision in Simpson County v. G.C. Burkett, 178 Miss. 44, in which the court held that the election must be held under Sec. 310 of the Code, requiring 30 days' notice, there can be no contention here made that this 30 days' notice was given by publication. There was no notice by publication.
Due process requires, among other things, notice and a hearing.
Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Board of Sup'rs. v. Ottley, 146 Miss. 118, 109 So. 466.
Constructive process may be had in only two ways: publication and posting. We say the election commissioners in this election matter did neither.
Section 6265, Code 1930, cannot be disregarded, we submit. If posting is done and if the jurisdictional fact of notice is hinged on posting and that alone, and it is the only thing in this case even asserted to be notice by respondent, then there must be a posting in each election district and at the courthouse. Respondent stands on this posting at the courthouse and yet this posting at the courthouse is not shown to have been proved as provided by Sec. 1596, Code 1930. Please note on page 127 of the Ottley case, 146 Miss., where it was held that it was necessary that the election commissioners in their certificate show that notice had been published and in their report they should submit a copy with proof of its publication. And this notice and proof must be on file with the board at the time of passing of the final order or the judgment is void.
Austin v. Western Road Mach. Co. v. Webster Co., 154 So. 723; Wentworth v. Flowers, 163 Miss. 39; Cameron v. Whittington, 120 Miss. 595, 82 So. 311; Wergin v. Voso, 26 A.L.R. 933; Ogilvie v. Aetna Ins. Co., 26 A.L.R. 116.
We submit that since no publication was made at all, that is, no legal publication, that this matter of proof of posting the notice was jurisdictional.
Oliver v. Baird, 90 Miss. 718, 44 So. 35; Monroe Co. v. Minga, 127 Miss. 702, 90 So. 443; Board of Sup'rs, Lowndes Co. v. Ottley, 146 Miss. 118, 112 So. 466; Merchants Bank v. Scott County, 165 Miss. 91, 145 So. 908; Peoples Bank of Weir v. Attala Co., 156 Miss. 560, 126 So. 192; Austin-Western Mchy. v. Webster Co., 154 So. 723.
The board of supervisors is a court of special and limited jurisdiction and every jurisdictional fact is required to be affirmatively entered on its minutes, and if not, the fact is conclusively presumed never to have existed. No presumption is indulged, the facts must appear.
Broom v. Bd. of Sup'rs, Jefferson Davis County, 158 So. 344; Bd. of Sup'rs v. Ottley, 146 Miss. 118, 112 So. 466; West v. Town of Waynesboro, 152 Miss. 443, 119 So. 809; Adams v. National Bank, 103 Miss. 744, 60 So. 770; Boutwell v. Bd. of Sup'rs, 128 Miss. 337, 91 So. 12; Great So. Lbr. Co. v. Jeff Davis Co., 133 Miss. 229, 97 So. 545; Gilbert v. Scarborough, 159 Miss. 679, 131 So. 876; Cotton v. Harlan, 124 Miss. 691; Hardin v. Ho-yopo-nubby, 27 Miss. 567; Cockerell v. Wynn, 12 S. M. 117; Koch v. Bridges, 45 Miss. 258.
We contend that the election commissioners are not process servers and it was necessary that some proof be made of how the notice was served. The sheriff is chief process server of the county.
Section 2994, Code of 1930; Roberts v. Murphy, 144 Ga. 177, 86 S.E. 545; Marsden v. Harlocker, 48 Or. 90, 85 P. 328, 102 A.S.R. 786.
If we are in error as to Section 1596 of Code being mandatory, then we contend that there was no notice for the reason Section 6265 of Code was not complied with.
If we are in error as to the validity of the election, then we contend that the justice of the peace still have no jurisdiction, for the affidavit charged Blount with unlawfully selling beer of an alcoholic content of not more than four per centum by weight.
It is admitted that the Legislature may make the operation of a statute dependent upon future contingencies, but there is no power given the Legislature to grant unto the people the power to "un-repeal" and give life to a dead statute, for Section 1974, Code 1930, up to 4% alcoholic content, inclusive, was repealed by Sec. 23, Chapter 171, Laws 1934.
I.I.C. v. Railroad Co., 218 U.S. 88, 44 L.Ed. 949; 12 C.J. 839; State v. Watkins, 147 So. 8; Porter Coal Co. v. Davis, 165 So. 93; 6 R.C.L. 164; Alcorn v. Hamer, 38 Miss. 653; Schulher v. Bordeaux, 64 Miss. 59, 8 So. 201.
We submit that the election procedure is void. A void judgment or order may be disregarded collaterally, as has been repeatedly held by this court and the lapse of time will not help its invalidity
Lester v. Miller, 76 Miss. 309; Theobold v. Deslonde, 93 Miss. 208; Paepcke-Leicht Lbr. Co. v. Savage, 137 Miss. 11, 101 So. 709.
Writ of prohibition is proper remedy.
Crittenden v. Town of Booneville, 92 Miss. 277; 18 C.J. 662.
It is true petitioner lost his remedies by appeal and certiorari, but appellee certainly does not mean to hold that a void order or proceeding is invested with vitality by lapse of time, no matter how long. The remedy by prohibition is always available when there is no appeal or where an appeal would not afford any remedy.
Crittenden v. Town of Booneville, 92 Miss. 277; Lester v. Miller, 76 Miss. 309; Theobold v. Deslonde, 93 Miss. 208; Poepcke-Leicht Lbr. Co. v. Savage, 137 Miss. 11, 101 So. 709; Sec. 742, Code of 1930.
Livingston, Milloy Livingston, of Prentiss, for appellee.
It was specifically held by this court in the case of Crittenden v. Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518, that the writ of prohibition is an extraordinary writ, and proper only in cases of extreme necessity; that the writ of prohibition will not lie if a complete remedy lies by appeal, certiorari, mandamus, or otherwise. Now in the case at bar, there was no appeal, certiorari, mandamus, injunction, contest of the election or other means of attack against the action of the board of supervisors in its acts and orders declaring the election valid and passing an order prohibiting the transportation, storage, sale, distribution, receipt, and/or manufacture of light wine and beer as provided by said Chapter 171, Laws of 1934, from Jefferson Davis County, Mississippi.
Robinson v. Itawamba County, 105 Miss. 90, 62 So. 3; Rankin County v. Lee, 147 Miss. 99, 113 So. 194.
It occurs to me that a distinction obtains between the making of proof by a private citizen, such as the publisher of a newspaper in cases of publications of notice, and in proof made by a public officer, such as an election commissioner who is required by Section 6177 of the Code of 1930 to take and subscribe the oath of office prescribed by the Constitution for the faithful performance of his official duties, and who is required to file the same in the officer of the clerk of the Chancery Court, there to remain, and then in addition to the sanction of this official oath the act of the commissioners in the case at bar in regard to the fact of posting the notice is supported by a solemn certificate on file with the board of supervisors at the time the board undertook to adjudicate the fact that such notice had been posted.
It will be observed that Section 6177 of the Code providing for the appointment of the election commissioners, expressly requires that "each of the election commissioners, before acting, shall take and subscribe the oath of office prescribed by the Constitution, and file the same in the office of the clerk of the Chancery Court, there to remain." In requiring this to be done it is manifestly the intendment of the law that each and every official act thereafter performed by such officers is to be supported by the sanction of this same official oath which is required to "remain on file," and that a separate affidavit is not to be required as an additional sanction of their official acts and representations, especially when those acts are duly certified. Unless the solemn certificate of public officers made in their official capacity is to be accepted in the courts where they are permitted to be filed as being at least a prima facie correct recital of the truth, then what purpose is to be served in requiring them to take and subscribe an oath of office as prescribed by the Constitution to faithfully perform the duties of their office, of which certifying their action in holding an election is one, and in further requiring that they file this oath in the office of the clerk of the Chancery Court, there to remain?
Most assuredly, it cannot be held that an affidavit as to the posting of a notice is essential to jurisdiction in every proceeding had before the board of supervisors, because we find that under Section 6254 of the Code of 1930 it is provided that if there shall not be commissioners of election in any county, or if they fail to act, the duties prescribed for them shall be performed by the board of supervisors; and certainly, it would be a vain and foolish thing in cases where the board of supervisors, or any member thereof, had posted a notice of election, to require that the members of the board file an affidavit before themselves, attached to a copy of the notice as proof of the fact that it had been posted. Attention is called to this fact to show that it was never intended that the same strictness of proof regarding the filing of an affidavit when the process has been obtained by a public officer as is required when process is obtained by the act of a private citizen publishing notice in a newspaper.
In view of the decision of the court in the case of State v. Greer, 158 Miss. 315, 130 So. 482, announcing or reaffirming the wholesome doctrine that elections should be given validity when there has been a fair attempt to comply with the requirements of the law, and where no fraud has been practiced, I do not think the court would be justified in holding void the election in question because of a failure of the election commissioners to file an affidavit supplementing their certified return as to the fact that the notice was posted for a period of thirty days prior to the election.
The case at bar presents for the determination of the court the question as to whether or not mandamus should lie to compel the respondent, as a public officer, to issue a license for the sale of light wines and beer by requiring him to assume the responsibility of determining at his peril as to whether or not the final judgment of the board of supervisors, rendered nearly three years ago and unappealed from, is a valid judgment. While the petition alleges he arbitrarily refused to issue the privilege tax license, there is filed as an exhibit to the petition a statement from the sheriff admitting for the sake of the record that he had declined to issue such license, but giving as his reason therefor the fact that he is of the opinion that the light wines and beer law had been voted out of Jefferson Davis County by the election held in said county during the year 1934, referring, of course, to the election in question.
It was held in the recent case of State ex rel. Suddoth v. Tan, 172 Miss. 162, 158 So. 777, that where the right is doubtful the writ of mandamus should be denied.
This is a proceeding primarily to test the validity of the election held on July 10, 1934, and it is evident from the record that the license fee was tendered to the sheriff for the issuance of a privilege tax license to sell light wines and beer and the petition to compel him to issue the same are mere incidents to the litigation to test the validity of the election. And it was held in the case of Robinson v. Itawamba County, 105 Miss. 90, 62 So. 3, that mandamus will not lie where the right of appeal existed for the issuance of a writ only in cases where there is not an adequate remedy at law. And it has been held that in order to bar the issuing of the writ, it is not necessary that the other remedy be available at the time of the applying for the mandamus, but if the petitioner had a clear legal remedy, adequate to enforce his rights, of which he failed to avail himself, etc., the writ will not lie, citing numerous cases in the footnote in 98 A.S.R., page 869.
Then Section 73 of the Code of 1930 gave the remedy by way of certiorari, for a period of six months after the election in question, regardless of whether an appeal from the judgment sought to be reviewed was provided for or not. And this remedy was applicable for the review of all acts of the board in the premises which were either judicial or quasi judicial. And it would seem that the action of the board in adjudicating as to whether or not thirty days notice had been posted in the manner required by law, and in performing other acts during the progress of the proceeding, was acting judicially, even though it may be true that the portion of the order predicated upon such judicial adjudication, and excluding light wines and beer from the county was ministerial.
In conclusion I wish to call attention, but in order to avoid the making of this opinion more lengthy I shall not undertake to quote from them, the following cases:
Wilson v. Wallace, 64 Miss. 13, 8 So. 128; Fergerson v. Bd. of Sup'rs, Monroe County, 71 Miss. 524, 14 So. 82; Pearl River County v. Lacey Lbr. Co., 128 Miss. 885, 91 So. 572; Robinson v. Itawamba County, 105 Miss. 90, 62 So. 3; City of Jackson v. McPherson, 130 So. 287; Overstreet v. Lord, 134 So. 169; G. S.I.R.R. Co. v. Adams, 85 Miss. 772, 38 So. 349.
Argued orally by Ovie L. Berry and G.L. Martin, for appellant, and W.H. Livingston, for appellee.
This is an appeal from a judgment in the circuit court of Jefferson Davis county disallowing a writ of prohibition to John Kerley, justice of the peace, to prohibit prosecution of the appellant for selling beer and wine in Jefferson Davis county. From the petition for the writ of prohibition it appears that on the 4th day of June, 1934, a petition was filed with the Board of Supervisors, signed by 20 per cent. of the duly qualified electors of the county, praying for an election under House Bill No. 26, chapter 171, Laws 1934, providing for the sale of light wines and beer, and for elections to exclude such sale from any county on the petition of 20 per cent. of the qualified electors of such county. The board at that meeting adjudged that the petition contained 20 per cent. of the duly qualified electors of the county, and ordered an election to be held on the 10th day of July, 1934, directing the Election Commissioners to hold the election, providing for the ballots to be used therein, giving of notice, etc. The Election Commissioners proceeded to hold the election after giving notice, as alleged, by posting one notice at the courthouse door for thirty days, and publication in the county newspaper in four issues; the first newspaper notice appearing, according to the bill, on the 14th day of June, 1934, and the last on the 5th day of July, 1934, appearing therein on each successive week.
The Election Commissioners returned to the Board of Supervisors their action in holding the election, showing that 978 votes were cast to exclude beer and wine, and 339 for the sale thereof in the county. The board, at the August meeting, entered its order adjudging that the election had been legally held, the electors having voted to exclude the sale of beer and wine from the county, and entered its order prohibiting such sales thereafter. No appeal or certiorari was taken from this order at the August meeting, 1934; but after this court decided the case of Simpson Co. v. Burkett et al., 178 Miss. 44, 172 So. 329, at the September, 1936, term of this court, the appellant applied to the State Tax Commission for a permit and applied to the sheriff for a privilege license to sell such liquors — beer and light wines — in said county, tendering to the sheriff, it is alleged, the necessary amount of money therefor. The sheriff refused to receive the money or issue the license, whereupon the appellant, who was conducting a cafe, proceeded to buy beer and wine, and the equipment for the sale thereof in his cafe, and made one or two sales. Prosecution of the appellant therefor was instituted in the justice court of John Kerley, in the district where the sales were made; whereupon the appellant applied to the circuit judge for a writ of prohibition, which, being refused, this appeal was prosecuted.
The Board of Supervisors had jurisdiction to hold the election on being petitioned to do so by 20 per cent. or more of the qualified electors of the county, the election was held and adjudged to be legal by the board, the law having been complied with; and since the board had jurisdiction of the subject-matter, its judgment would either have to be appealed from, or a writ of certiorari issued, under section 73 of the Code of 1930, within six months from the date of the final order of the Board of Supervisors. No appeal or certiorari having been taken within that time, the validity of the judgment could not be called in question in a petition for a writ of prohibition.
The justice of the peace had jurisdiction of all crimes and misdemeanors whereof the punishment does not extend beyond fines and imprisonment in the county jail, and consequently he was exercising constitutional jurisdiction under section 171 of the Constitution, and under chapter 41 of the Code of 1930, section 2069 et seq., and amendments thereto. The writ of prohibition may be resorted to in a proper case to prevent vexatious prosecutions under a void ordinance, but not for violation of a valid ordinance. Hurley v. City of Corinth, 97 Miss. 396, 52 So. 695. Prohibition will not lie to correct irregularities in judicial proceedings. Clayton v. Heidelberg, 9 Smedes M. 623, 17 Miss. 623; see, also, Blackstone's Commentaries, book 3, pages 111, 112. Prohibition is an extraordinary writ, and is properly issued only in cases of extreme necessity. Crittenden v. Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518. The office of prohibition is to prevent an inferior court, or other tribunal, from assuming a jurisdiction not legally vested in it. Barnes v. McLeod, 165 Miss. 437, 140 So. 740. It cannot be availed of or resorted to when the usual remedies provided by law are available. Crittenden v. Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518. Furthermore, the appellant was not entitled to the writ for the additional reason that he had not obtained the license to sell beer and wines under the law, and, consequently, was not authorized to do so, regardless of the validity of the election above referred to. If he were entitled to do so, and the sheriff refused him the necessary license, he should have resorted to mandamus to compel its issuance, and, having failed to do this, he was not authorized to engage in the sale of beer and wines without a license.
Some misapprehension seems to prevail as to whether there may be numerous prosecutions of a violation of the law to constitute sufficient grounds for such prohibition, or whether mere allegations that such will be instituted constitute such grounds. In the case before us there was no showing that more than one prosecution had been instituted, but merely an allegation or belief that others would be.
A court having jurisdiction of crimes of a given character should not encourage vexatious prosecutions where there is bona fide doubt of the propriety or necessity of so doing; and where appeals have been taken to test the legality in the proper way, courts having jurisdiction of crime, including the justice of the peace court, have judicial power to decide what the law is, including the question of whether an ordinance is void because of improper methods of bringing it into being, or where the ordinance is unreasonable.
The judge, on application being made to him for prohibition, should deny the prohibition, if, in his opinion, a statute is constitutional; or, if an ordinance, it is validly promulgated or ordained. The only effect of superseding an ordinance or prohibiting prosecution thereof, is to suspend operation of the ordinance until the hearing in the particular prosecutions either has been brought or contemplated. It does not authorize the violation of law, or of an ordinance, if valid; and no protection is afforded a violation of a valid statute or ordinance during the period of suspension, Eastman Oil Wells v. State, 130 Miss. 63, 93 So. 484; such violation may be prosecuted after the termination of the certiorari or prohibition, as the case may be.
We find no error herein, and the judgment of the court below is affirmed.
Affirmed.