Opinion
No. 37160.
September 26, 1949.
1. Administrative law — board of supervisors — intoxicating liquors — beer and wine — hours of sale, prescribing.
When the board of supervisors acts under the authority of Sec. 10224, Code 1942 in prescribing hours of opening and closing in territory outside of municipalities, the board exercises a legislative and not a judicial power.
2. Constitutional law — courts — administrative law — board of supervisors — legislative function, limitation upon review of.
When reviewing an order of a board of supervisors made in the exercise of legislative powers, the court will inquire only into whether the order (a) is supported by substantial evidence or is arbitrary or capricious, or (b) is within the lawful power of the board to make, or (c) whether any constitutional right of the complaining party is violated.
3. Intoxicating liquors — beer and wine — hours of sale — order of board prescribing.
It being within the power of the board of supervisors in prescribing the hours of opening and closing for sale of beer to prohibit the sale of beer and wine between the hours of 9 o'clock P.M. and 7 o'clock A.M. and all day Sunday, outside of municipalities, such an order when supported by substantial evidence and is not arbitrary or capricious will be affirmed on review.
4. Administrative law — construction of an administrative order — hours of sale of beer, prescribing.
An order of the board of supervisors prescribing the hours of sale of beer and light wine must have a fair and reasonable interpretation, and such an order will not be construed as an effort to prescribe the hours during which restaurants must be completely closed, but only that beer and light wine must not be sold by them during the prohibited hours.
Headnotes as revised by McGehee, C.J.
APPEAL from the circuit court of Clay County; J.E. CARRADINE, Judge.
N.H. Malone, for appellant.
The judgment or decision of a board of supervisors from which an appeal under Section 1195 of the Code of 1942 is authorized is the result of a judicial act of the board and a determination of a controverted issue involving parties advocating for and against in an open hearing, wherein, in at least some fashion, the board is sitting as a tribunal. It has no application to an order or ordinance adopted by the board ex mero motu in the discharge of a ministerial or legislative duty. Yerger v. Greenwood, 77 Miss. 378, 27 So. 620.
Under Section 1195 of the Code of 1942, the right to appeal from actions of the board of supervisors is limited to persons aggrieved by a judgment or decision of the Board. The terms "judgment" and "decision" do not include ex-parte actions of a legislative nature by the board of supervisors, and the appellant earnestly insists that the Legislature did not intend in enacting Section 1195 to extend the right of appeal thereunder to regulatory orders adopted by the Board of Supervisors or a municipal board; and a consideration of the effects of permitting an appeal in such instances is very persuasive of the conclusion that the Legislature had no such intent.
To permit an appeal under Section 1195 would enable any person affected by a regulatory order of the board of supervisors to unreasonably delay the enforcement of such order and thereby virtually nullify the power of the board by an appeal without bond. An appeal under Section 1195 can be prosecuted without bond. Monroe County v. Strong, 78 Miss. 565, 29 So. 530.
Illustrative of the hindrance and delay of the power of the board in this respect is the delay involved in this case, wherein approximately two years have elapsed since the order was adopted by the appellant board.
The court has considered Section 10224, Sub-section (b) of Section 10228 and Section 10223, as amended, in only the following four cases: Alexander v. Graves (1937), 178 Miss. 583, 173 So. 417; Ford v. Easterling (1938), 183 Miss. 184, 184 So. 153; Green v. Alcorn County (1942), 192 Miss. 468, 6 So.2d 130; Walters v. Jones County (1946), 184 So. 160. In all of these cases, this court was called upon to consider only the zoning power conferred upon the boards of supervisors by Section 10224 of the Code of 1942.
A fair analysis of the holdings of this court in the four zoning cases mentioned is that by these cases the constitutionality of the statutes involved was upheld and that the delegations by the Legislature to the boards of supervisors of the regulatory powers contained in the statutes do not violate any constitutional prohibition and that by virtue of these statutes, the boards of supervisors of the several counties of the State are validly authorized to enact and enforce regulatory measures pertaining to the beer traffic in the rural areas of the county — provided, only, that such regulatory measures must conform to substantial reason or, in other words, that there must be a substantially reasonable relation between the objectives to be accomplished and the facts which form the basis for the action taken.
Thus, in these well-reasoned zoning cases, wherein the authorities were exhaustively examined and considered, all matters involved in this issue and raised by the pleadings herein have been resolved in favor of the order or ordinance in question, provided only that such order or ordinance can stand the test of reasonableness as applied by this court.
The appellees attack the validity of the order or ordinance, as stated by their petition for appeal to the circuit court, on the grounds ". . . that said order is unreasonable, arbitrary, oppressive, and confiscatory, and that its enforcement would have the effect of destroying the business of appellants and of depriving them of their property without due process of law, and that said order is null and void, and has no substantial support under the facts in the matter as a reasonable exercise of the powers delegated to said board by the Legislature." It will be noted that the language used in stating the basis of the attack by the appellees herein is almost identical with the allegations involved in the attacks made in the aforementioned zoning cases, except that in addition, the appellees herein say that the order "has no substantial support under the facts in the matter as a reasonable exercise of the power delegated to said board by the Legislature".
This court must accept the findings of the board of supervisors as justified by the facts, where the petition does not set forth specific facts but merely general conclusions, as in this case. Alexander v. Graves, (1937), 178 Miss. 583, 173 So. 417.
Not only must the objections as to reasonableness be specifically set forth in the pleadings, but the objector has the burden of establishing by a preponderance of the evidence any allegations of unreasonableness asserted by him. Vail, et al. v. City of Jackson (1949), 41 So.2d 357.
In this case, not only are there no specific allegations of fact constituting unreasonableness, but there is no proof thereof whatever before this court.
Thus, if the order or ordinance in question is to be held unreasonable, the failure of the appellees to set up specific grounds of unreasonableness and to prove the same must be ignored, and the unreasonableness established from the face of the order itself.
B.H. Loving, and W.W. Pierce, for appellees.
Where the future course of matter acted upon by the board depends upon the determination and adjudication by the board such acts of adjudication are judicial acts. The finding of the necessary facts to authorize the order here in question, and the entering of the decision are both judicial acts, and therefore, are appealable under Section 1195 of Mississippi Code 1942. Mohundro v. Board of Supervisors, 174 Miss. 512.
In the case of Green v. Alcorn County, 192 Miss. 468, there was a situation analogous to the case now before the court. In the Green v. Alcorn County case the board of supervisors entered an order prohibiting the sale of beer within Goosepond School District in Alcorn County. All the facts pertaining to what happened before the board of supervisors were embodied in a bill of exception as in the case at bar. While the question of the right of appeal was not raised apparently, the court proceeded as though there was no question about the right of appeal. If in the Green v. Alcorn County case the circuit court had no jurisdiction of the appeal, then the Supreme Court would be without jurisdiction. However, the court entertained jurisdiction as though there was no question about it.
In the case of Trust Company v. Planter's Bank, 155 Miss. 725, 726, this court had the following to say about matters of jurisdiction: ". . . it is elementary that this court has no jurisdiction of appeals, except within and strictly within, the terms of the statutes so allowing, and that a want of jurisdiction may be raised by this court, not merely as a privilege, but it must do so as a duty. We repeat what was said forty years ago in Ward v. Whitfield, supra, that, when these appeals are granted in contravention of the statute we will apply the corrective by dismissing them ex mero motu. To do otherwise would not only make us parties to the violation of the statute, but would place us in the attitude of delivering opinions purely advisory in their effect — opinions which, for want of jurisdiction to render them, would have no binding force upon the parties, upon the trial court, or upon us."
So it follows as a logical conclusion that if the order of the board of supervisors entered in the Green v. Alcorn County case was appealable by bill of exceptions, under the statute, then the order of the board of supervisors of Clay County from which this appeal is prosecuted was and is appealable, in the same general course of procedure.
The basis of fact upon which the board acted in passing the order is embodied in the bill of exceptions. The bill of exceptions is an authentic record of what transpired, and what evidence was before the board at the time the order was passed.
The bill of exceptions recites that, "no hearing was had relative thereto or testimony taken or witnesses heard relative to the same, or to the findings set forth in said order; but that what occurred when said order was passed was that the Honorable Noel Malone, the county prosecuting attorney of Clay County, Mississippi, appeared before the said board, when it was in session on said date of October 7th, 1949, and orally requested the board to pass such order, then and there stating to the board in substance that the City of West Point, the County Seat and a municipality of Clay County, Mississippi, had an ordinance prohibiting the sale of beer at night after 9:00 o'clock P.M., and altogether on Sunday and that he thought the rule should be the same all over the county, whereupon the board, after some discussion thereof among the members, passed the order above set forth."
We respectfully submit that the foregoing is not a sufficient basis of fact upon which a valid order can be passed and entered by the board of supervisors.
In the case of Green v. Alcorn County, 192 Miss. 468, the court said: "While it is true that the `courts will not interfere with boards of supervisors in the lawful exercise of the jurisdiction committed to them by law on the sole ground that their actions are characterized by lack of wisdom or sound discretion', as announced in the case of Monroe County v. Strong, 78 Miss. 565, 29 So. 530, nevertheless, it is the duty of the court to review an order such as the one here involved for the purpose of determining whether it has any substantial support under the facts disclosed as a reasonable exercise of the powers delegated to the board by the legislature."
From the facts disclosed by the bill of exceptions it can be plainly seen that if this order should be upheld it would logically follow that the board of supervisors could by the mere entry of an order nullify the statute legalizing the sale of beer in Clay County. It is not a question of power and authority but a question of having the necessary facts before the board to justify and uphold the order passed. The courts generally recognize that the exercise of the powers conferred by Section 10224, Code 1942, must be based upon reasonable conditions — that is to say, some basis of fact found by the board having a material bearing of the subject matter of the order. Green v. Alcorn County, 192 Miss. 468.
There is a general presumption that the acts and orders of the board of supervisors are supported by the necessary facts, unless the contrary appear. That general presumption, however, disappears when the facts are shown as to what was before the board as a basis upon which the order was enacted and entered. In this case, however, there cannot be any presumption as to what was before the board because the bill of exceptions outlines what fact or facts were taken into consideration in entering the order appealed from in the first instance. All presumptions disappear when the facts appear in the record. When that is true the facts control.
Counsel for appellant, in his brief, undertakes to supply all necessary facts by stating certain supposed conditions, which he inferentially admits are necessary for upholding the order of the board. All of the supposed facts related in appellant's brief are de hors the record and cannot be considered by the court in its deliberation and decision. This practice has been more than once condemned by this court. Rayl v. Thurman, 156 Miss. 14; Alexander et al. v. Hancock, 174 Miss. 490. As said by the court in Rayl v. Thurman, supra, "But we lay aside this letter under the general rule that facts are not brought into a case by way of briefs of counsel, and look solely to the order of the court."
We recognized that regulation is permissible while prohibition is not because prohibition is not within the police power. Dart v. Gulfport, 147 Miss. 524. In order that boards of supervisors might regulate the matter of opening and closing premises where beer is sold the legislature provided that such board may "prescribe hours of opening and closing", and that is what the statute contemplates and nothing more. The order from which this appeal originated does not attempt to fix hour of opening and closing, and cannot be so construed. However, if by inference such construction could be put on the order, the judgment of the circuit court will have to be affirmed due to the fact that there in no reasonable basis upon which the order can rest. That is a necessary element and we cannot look further than the bill of exceptions for the necessary facts. The order must conform to substantial reason and the facts must be in line with the purpose of the order.
The reasonableness of the order is for the court to determine in the light of the facts embodied in the bill of exceptions. The board could have just as reasonably prohibited the sale of beer for three, four, five, or six days, during each week, and thereby put at naught the statute and will of the people permitting the sale of beer, in Clay County, upon the sole basis that the county attorney was of the opinion that same should be done.
In the case at bar the record is devoid of any fact or circumstance or condition warranting the adoption of the order in question, from which it must follow that the order is invalid. There is also another reason and that is the statute does not confer any power or authority upon the board of supervisors to prohibit sales at any time but only authority and power to fix hour of opening and closing the premises where beer is sold.
The Board of Supervisors of Clay County passed an order prescribing the hours of opening and closing of places for the sale of beer, outside of the municipalities in the county, so as to prohibit the sale of beer or wine between the hours of 9:00 o'clock p.m. and 7:00 o'clock a.m. and all day on Sunday. The appellees, T.J. McCormick, W.A. Gaines and John Portera, at and before the time of the passage of said order by the Board of Supervisors, held permits to sell beer or wine and were accustomed to keep their places open after 9:00 p.m. and all day Sunday for the sale of beer and the conduct of a restaurant business in which all three were engaged. There was no petition filed with the Board of Supervisors requesting them to pass the order but same was passed and placed upon the minutes without any hearing, and without notice permitting interested parties to appear and object, if they so desired. The appellees appealed the order of the board to the circuit court, under the provisions of Section 1195, Code of 1942. The county there made a motion to dismiss the appeal which was by the circuit court overruled and the court thereupon held the order of the Board void and of no effect. The Board of Supervisors appeals here.
There are two questions presented to us for decision, viz. (1) Does an appeal lie from the Board of Supervisors to the circuit court on an order such as is here involved, and if so, then (2) was the order complained of a valid exercise of a lawful power vested in said board?
Appeals from the judgments and decisions of the Board of Supervisors are allowed to aggrieved persons by the terms of Section 1195, Code of 1942. Back before the time when administrative boards had been developed to their present number and power, this Court held that appeals under what is now Section 1195 of the Code of 1942 lie only from the judicial acts of the Board of Supervisors to the Circuit Court.
Section 10224 provides as follows: "Municipalities may enforce such proper rules and regulations for fixing zones and territories, prescribing hours of opening and of closing, and for such other measures as will promote public health, morals, and safety, as they may by ordinance provide, and the board of supervisors of any county may make such rules and regulations as to territory outside of municipalities as are herein provided for municipalities."
This Court held in Ford v. Easterling, 183 Miss. 575, 184 So. 153, 119 A.L.R. 634, that the passage by the Board of Supervisors of a zoning order under authority of the above quoted statute was a legitimate power. In Board of Supervisors of Tishomingo County v. Blissitt et al., 200 Miss. 645, 27 So.2d 678, it was held that the action of the Board of Supervisors, in establishing a public road is exercising an administrative power, legislative in its nature, in determining whether the public interest or convenience requires the laying out of the road. In Green v. Alcorn County, 192 Miss. 468, 6 So.2d 130, the nature of the act of the Board in passing a zoning ordinance was not considered, though the appeal was under Section 1195 and the Court struck down the zoning order there as an unreasonable exercise of power by the Board under the facts in that case. In Mohundro v. Board of Supervisors of Tippah County, 174 Miss. 512, 165 So. 124, the Court held that the order of the Board of Supervisors calling an election on voting out beer was a judicial act. In Power, Secretary of State v. Robertson, 130 Miss. 188, 93 So. 769, it was held that the Secretary of State in determining whether the initiative and referendum petitions contained the required number of qualified electors acted judicially. Ferguson v. Board of Supervisors, 71 Miss. 524, 14 So. 81, holds that in determining whether a petition for local option election contains the requisite number of qualified electors the Board acted in a judicial capacity. In Corbett v. Duncan, 63 Miss. 84, and in Loeb v. Duncan, 63 Miss. 89, it was held that a municipal board in determining whether a petition for liquor license was signed by requisite number of qualified electors acted in quasi judicial capacity. Other cases are Board of Supervisors of Forrest County v. Melton, 123 Miss. 615, 86 So. 369; Board of Supervisors of Marshall County v. Stephenson, Miss., 130 So. 684 (Not reported in State Reports); Illinois Cent. R. Co. v. Mississippi R. Commission, 143 Miss. 805, 109 So. 868; Ferguson v. Seward, 146 Miss. 613, 111 So. 596.
The last few decades have witnessed the rise of a new instrument of government, the administrative tribunal. The rapidity of its growth, the significance of its powers, and the implications of its being, are such as to require notice of the extent to which "administrative law" is weaving itself more and more into our governmental fabric.
An approach to the problem of judicial review cannot neglect the fact that its essence springs from the Anglo-American conception of the "supremacy of law." In 1936, Mr. Justice Brandeis, in speaking of "administrative law", said in St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84, 56 S.Ct. 720, 740, 80 L.Ed. 1033: "The supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied and whether the proceeding in which facts were adjudicated was conducted regularly."
This Court in California Company v. State Oil Gas Board, 200 Miss. 824, 27 So.2d 542, 547, 28 So.2d 120, held with reference to acts of an administrative board "the only sound, practicable or workable rule that can be announced by the Court is to hold that when the appeal is from either a general rule and regulation or from an exception granted thereto, the Court to which the appeal is taken shall only inquire into whether or not the same is reasonable and proper according to the facts disclosed before the Board, that is to say, whether or not its decision is supported by substantial evidence or is arbitrary or capricious, or beyond the power of the Board to make, or whether it violates any constitutional right of the complaining party."
(Hn 1) We are constrained to hold that the Board of Supervisors in enforcing rules and regulations for prescribing hours of opening and closing under the provisions of Section 10224, Code of 1942, exercises a legislative and not a judicial power but from decisions of the Board of Supervisors on administrative or legislative matters an appeal to the circuit court is nonetheless within the contemplation of Section 1195, Code of 1942, and (Hn 2) the court to which the appeal is taken should only inquire into whether or not the order is reasonable and proper according to the facts disclosed before the board, that is to say, whether or not its decision is supported by substantial evidence or is arbitrary or capricious, or beyond the power of the board to make, or whether it violates any constitutional right of the complaining party. To this extent, the rule announced in Board of Supervisors of DeSoto County v. Pidgeon-Thomas Iron Co., 114 Miss. 274, 75 So. 117, is hereby modified.
(Hn 3) Within these limitations we now inquire into the order complained of. Looking to the bill of exceptions and the facts disclosed before the Board of Supervisors, we find the Board's decision is supported by substantial evidence and is not arbitrary or capricious.
(Hn 4) In Noxubee County v. Long, 141 Miss. 72, 106 So. 83, 85, we held: "The minutes of boards of supervisors reciting their orders and judgments, like those of justices of the peace, will be looked upon with indulgence although they may be unskillfully drawn, if by a fair and reasonable interpretation their meaning can be ascertained, they will be sufficient to answer the requirements of law." The board of supervisors realized that the respective restaurants of the complaining parties could lawfully remain open within the hours under review and the reasonable interpretation of the order is that they should be closed within the prohibited hours to the sale of beer or light wine but open for any other lawful purpose. Hence the order is within the power of the board to make and does not violate any constitutional right of any of the complaining parties.
The judgment of the court below will be reversed and judgment entered here affirming the order of the board of supervisors.
Reversed and judgment here for appellant.