Opinion
No. 35782.
March 26, 1945. Suggestion of Error Overruled April 23, 1945.
1. COUNTIES.
The statute requiring minutes of each day to be read and signed by president before final adjournment of county board of supervisors is mandatory and not merely directory (Code 1942, secs. 2877, 2886).
2. INTOXICATING LIQUORS.
Where minutes of county board of supervisors designating date for reconvening of the board were not signed by president, board had no power to reconvene on that day and hence liquor election ordered upon reconvening was invalid (Code 1942, secs. 2877, 2886).
APPEAL from the circuit court of Newton county, HON. PERCY M. LEE, Judge.
W.D. Conn, Jr., of Jackson, for appellant.
Appellant urged in the court below and urges here that the September, 1943, meeting of the Board of Supervisors of Newton County was not a revenue meeting; that the term was limited by law to not exceeding six days; that no minutes of the board of supervisors were signed at any time during the first six days beginning with the first Monday of September, 1943; that a regular meeting of a board of supervisors, when once begun, continues until it has been terminated by operation of law or until adjourned by an order entered on the minutes of the board; that the alleged meeting of the board of supervisors on September 20, 1943, at which the election was ordered, was wholly unauthorized by law; that the board was then in vacation, and all of its acts and orders in connection with the calling of the alleged election were without authority of law and were wholly void; that said board had no power or authority at that time to pass upon the sufficiency of the petitions and no right, authority, or power to order the election above referred to; and, therefore, there has been no legal election held in Newton County and the order of April 8, 1944, is not predicated on any precedent valid election called or held for the purpose of determining the will of the voters of Newton County.
Davis v. Grice, 141 Miss. 412, 106 So. 631; Byrd v. Byrd, 193 Miss. 249, 8 So.2d 510; Arthur v. Adam, 49 Miss. 404 ; Beck v. Allen, 58 Miss. 143; Watson v. State, 166 Miss. 194, 146 So. 122; Williams v. State, 179 Miss. 419, 174 So. 581; Simpson County v. Burkett, 178 Miss. 44, 172 So. 329; Pearl Realty Co. v. State Highway Commission, 170 Miss. 103, 154 So. 292; Smith v. Board of Sup'rs of Tallahatchie County, 124 Miss. 36, 86 So. 707; Lee County v. James, 178 Miss. 554, 174 So. 76; Code of 1930, Sec. 202, amended by Ch. 62, Laws of 1935 (Code of 1942, Sec. 2877); Code of 1930, Secs. 211, 750, Code of 1942, Secs. 2886, 1665; Code of 1942, Sec. 1195.
Jurisdiction of the board to order the election must affirmatively appear, and if it does not, an "order" of a board is void.
Green v. Board of Sup'rs of Adams County, 172 Miss. 573, 161 So. 139.
E.C. Fishel, of Hattiesburg, and C.E. Johnson, of Union, for appellee.
The only question raised by this appeal is whether or not the proceedings and order of the board at the September, 1943, meeting are sufficient in law to support the election thereafter held, and the order of the board based on the results of said election prohibiting the transportation, etc., of wine and beer in Newton County, Mississippi, passed April 6, 1944. The appellant contends that said September, 1943, minutes and orders of the board touching the beer and wine question are void and insufficient to support the election and following reports and orders of the board for the reasons, first, that the September meetings of the board were by recess meetings carried beyond six days from the first day of September meeting of the board, even though the board did not use six days in all during the September meeting, and that the minutes were not closed at the end of the first six days in such manner as to justify an adjourned meeting; and, second, he contends that the September procedure is void and insufficient because each day's minutes were not separately signed by the board's president, even though he signed the minutes on the day of final adjournment.
Now, in answer to his argument, we say that Section 202, Code 1930, as amended by Chapter 62, Laws of Mississippi, Extra Session 1935, provides for recessing from time to time, just as was done by the board in the case at bar, so long as not more than six days are used in any one month. It is certain from the statute that six days were allowed the board to be used in regular meeting in the month of September, 1943. It is certain from the record and admitted in appellant's brief that they used only four days altogether in September, 1943. It is, therefore, our contention that the boards of supervisors after convening and using the first Monday as one day of their six regular days may use the next succeeding five days, or select by order fixing the date for recess meeting any business day or days convenient to the board for its business during the particular month, or five days in first week only, but they cannot have more than six days of regular meeting in any one month, and since the board in the case at bar used four days in its September, 1943, meetings, all four days were regular meeting days, and the order passed on September 20, 1943, was passed on a day of the regular meeting of that month and for that reason was a valid order.
Simpson County v. Burkett, 178 Miss. 44, 172 So. 329; Davis v. Grice, 141 Miss. 412, 106 So. 631; Code of 1930, Sec. 202, as amended by Ch. 62, Laws of 1935, Ex. Sess.
The nature of the meeting, whether it is a recessed or an adjourned meeting as contemplated by Section 203, Code of 1930, is determined not by the language used in the order of the board but by the nature of the meeting itself.
Byrd v. Byrd, 193 Miss. 249, 8 So.2d 510.
The minutes of the board of supervisors reciting their orders and judgments should be construed with much liberality.
Noxubee County v. Long, 141 Miss. 72, 106 So. 83; Martin v. Board of Sup'rs of Winston County, 181 Miss. 363, 178 So. 315.
The minutes of the September, 1943, meetings are sufficient and valid and were sufficiently signed by the president, and at the proper time, to give the order for the election on the beer and wine proposition being acted on by the board September 20, 1943, full validity, and the order is sufficient to authorize the holding of the election and enabled the people qualified and voting in the election to enact the proposition, and for an adjudication by the board, that the election was legally held and resulted for the proposition submitted and put the proposition in formal effect in the county. The reading and signing of the minutes on the day of final adjournment being sufficient to authenticate the entire minutes of the September meetings.
Arthur v. Adam, 49 Miss. 404; Grant v. State, 189 Miss. 341, 197 So. 826; Code of 1857, Art. 14, p. 416; Code of 1871, Sec. 1361; Code of 1930, Sec. 211.
Argued orally by W.D. Conn, Jr., for appellant, and by E.C. Fishel, for appellee.
An election ordered by the Board of Supervisors of Newton County to determine whether the manufacture, sale, etc., of beer and wine in the county should be prohibited, resulted in an affirmative vote therefor, on which the board afterwards entered the necessary order prohibiting the manufacture, sale, etc., of beer and wine in the county. The record of the board on which this order was based was carried to the court below by a writ of certiorari, where the order of the board made pursuant to this election was affirmed.
Under Section 2877, Code 1942, the Board of Supervisors of Newton County had the right at its regular meetings, other than those for transacting business under the revenue laws, to "sit for a period of not longer than six days in any one month" and to "recess from time to time, subject to the limitation herein provided, to convene on a day fixed by an order of the board entered on its minutes."
This record discloses that the board of supervisors of this county met in regular session on Monday, September 6, 1943, not being a meeting for the transaction of business under the revenue laws, adjourned to Tuesday, September 7th, and then to Wednesday, September 8th. On that day the board made an order adjourning to meet again on September 20th for the consideration of a petition then before it for the ordering of the election hereinbefore mentioned, and any other business that might then come before it. The board met on September 20th, ordered the election and "that the Board of Supervisors do now adjourn until the next regular meeting of the Board." A certified copy of the minutes of the board discloses that there is no signature of the President thereof to its minutes for September 6th, 7th and 8th, but that the minutes for September 20th were signed by him.
Section 2886, Code 1942, provides that "it shall be the duty of the clerk of the board of supervisors to keep and preserve a complete and correct record of all the proceedings and orders of the board. He shall enter on the minutes [etc.]. . . . The minutes of each day shall be read and signed by the president before the final adjournment of the board."
Counsel for the appellee say that the appellees' 20th of September meeting was not an adjourned meeting but one pursuant to a recess authorized by Section 2877, Code 1942, and that the September term of the board was finally adjourned when, but not until, the entering of the adjourning order on that day. Consequently, the President of the board was authorized to sign its minutes for the term at that meeting. Even if this be true, as to which we express no opinion, the statute requires the minutes of each day to be signed by the President of the board, which statute, unlike former statutes on which the decisions of this Court cited by the appellee were made, is mandatory and not merely directory. Gardner v. Price, 197 Miss. 831, 21 So.2d 1. From this it necessarily follows that the September 8th minutes of the board designating Monday, September 20th, for its reconvening are ineffective and conferred on the board no power to reconvene on that day.
The judgment of the court below will be reversed and the order of the appellee prohibiting the manufacture, sale, etc., of beer and wine in Newton County will be set aside and held for naught.
So ordered.