Opinion
No. 38877.
March 16, 1953.
1. Board of supervisors — roads — bonds — petitions on issuance of road bonds — duty of board.
It is the duty of a board of supervisors to canvass the names on petitions filed with it in order to determine whether or not such petitions contain the required number with the requisite qualifications and in doing so the board acts judicially, and this rule applies to petitions for an election on the question whether road bonds shall be issued.
2. Board of supervisors — petitions — canvass — delay for practical consideration.
Practical considerations may delay the canvass above mentioned in order to afford an opportunity to the board and others to examine and verify the petitions and to check their sufficiency, and no action should be taken until the board has determined this fact.
3. Boards of supervisors — petitions — signers may withdraw their names.
Persons who have signed a petition to a board of supervisors which has been filed may take their names therefrom at any time before final action by the board and this they may do by a petition to that effect addressed to the board, with the result that only those names which on the date of final action remain on the petition or petitions may be counted as petitioners.
4. Appeal — damages for unsuccessful appeal — issuance of road bonds.
An unsuccessful appeal on the question of the issuance of road bonds is not within the 5% damage statute. Sec. 1971, Code 1942.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Choctaw County; HENRY L. RODGERS, Judge.
W.D. Coleman and J.D. Dobbs, for appellant.
The Board of Supervisors of Choctaw County, able to exercise only such authority as the Legislature conferred upon it, failed to comply with the provisions of House Bill No. 714, Laws 1952, when it attempted to issue the bonds to which exception is here taken.
Sec. 4 of House Bill No. 714 provided the following: "That the board of supervisors shall give notice . . . of its intention to issue said bonds. The first publication of said notice shall be made not less than twenty-one days prior to the date fixed in the second paragraph in the notice to qualified electors in the resolution issuing the bonds, (which was April 7, 1952) and the last publication shall be made not more than seven days prior to such date. If at or prior to the hour of five o'clock p.m. on said date there shall be filed with the clerk of the board of supervisors a petition signed by not less than twenty per centum of the qualified electors of said county requesting that election be called on the question of the issuance of such bonds, then and in that event said bonds shall not be issued unless authorized by a majority of the votes cast at an election to be called and held for that purpose."
Prior to 5:00 o'clock p.m., April 7, 1952, a petition containing the names of seven hundred fifty-four qualified electors of Choctaw County protesting the issuance of said bonds and requesting an election on the question of their issuance was filed with the Clerk of the Board. This number constituted twenty per centum, and more, of the qualified electors of the County on both the 10th day of March, 1952, and on the 7th day of April, 1952, as shown by the certificates of the circuit clerk and ex officio registrar of voters on both these dates. This fact is not disputed.
Therefore, said petition being on file, as aforesaid, as required by said Act, under the provisions of Sec. 4 thereof, it was mandatory upon the board of supervisors to call and hold an election on the question of the issuance of the bonds before proceeding with their issuance.
In an effort to obliterate and circumvent this plain condition precedent imposed upon them by the special Act upon which they were proceeding, the Board of Supervisors pretermitted a consideration of said petition on April 7, 1952, the date on which said petition was required to be filed, and continued the matter until May 5, 1952. On May 5, 1952, subsequent to the deadline imposed by the Act, the Board filed with its clerk another petition containing the names of two hundred sixty-two qualified electors whose names previously appeared on the petition first filed with the clerk on April 7, 1952. Having filed said counter petition, the Board proceeded to eliminate from the petition filed on April 7, 1952, the names of those appearing on the counter petition filed by them on May 5, 1952, almost a month after the legislative deadline. They then "found" that said petition filed on April 7, 1952, contained the names of only 492 qualified electors, and that number was less than twenty per centum of the qualified electors of Choctaw County. It is by this ex post facto, self-authorized nunc pro tunc expurgation of the original petition that the Board seeks to deny the right of the people, given them by the Legislature, to vote on this important question.
The language of Sec. 4, House Bill No. 714, is plain and unambiguous.
It is, therefore, unnecessary to resort to interpretative devices in the construction of this section. The Legislature must be deemed to have intended what it clearly expressed. First National Bank of Memphis v. State Tax Commission, 210 Miss. 590, 49 So.2d 410. The Court in this case, citing Wilson v. Yazoo M.V.R. Co., 192 Miss. 424, 6 So.2d 313-314, re-announced the following maxim of statutory construction. "No principle is more firmly established, or rests on more secure foundations, than the rule which declares when a law is plain and unambiguous, whether it be expressed in general or limited terms, that the Legislature shall be deemed to have intended to mean what they have plainly expressed, and, consequently, no room is left for construction in the application of such a law."
Therefore, under the terms and conditions of said Act, said petition being on file on April 7, 1952, the Board was powerless to issue said bonds, unless authorized by a majority of the qualified electors of Choctaw County voting in an election on the question of the issuance of said bonds.
The Board of Supervisors had no power outside the express provisions of House Bill No. 714 in the issuance of said bonds. Price v. Price, 202 Miss. 268, 32 So.2d 124; Bailey, State Tax Collector v. Emmich Bros., 204 Miss. 666, 37 So.2d 797; Dunn Const. Co. v. Craig, 191 Miss. 682, 701, 2 So.2d 166, 3 So.2d 834.
The setting of an hour and a day certain by the Legislature in the said Local and Private Act on or before which a petition was required to be filed requesting an election on the question of the issuance of said bonds is analogous to the fixing of a date by the clerk of the chancery court for a hearing by the chancellor upon the question of establishing a drainage district under the provision of Chap. 195, Laws 1912, Secs. 4674-4679, Code 1942. Therefore, had the counter petition which was filed in this case on the 5th day of May, 1952, been filed on or before 5:00 o'clock p.m., April 7th, 1952, the board of supervisors could have properly considered it. The petition having been filed on a date subsequent to April 7, 1952, the Board was without authority to consider the same. This was clearly decided in Allison, et al. v. Camp Creek Drainage Dist. of De Soto County, et al., 211 Miss. 354, 51 So.2d 743.
Since the counter petition was filed on a date subsequent to 5:00 o'clock p.m., April 7, 1952, the Board of Supervisors' effort to use said counter petition was without authority and void.
Jack B. Carlisle and Creekmore Beacham, for appellee.
I. It is thoroughly well settled by the decisions of our Court that when a petition is filed with the Board of Supervisors pursuant to some statute authorizing action by the Board upon the filing of such a petition, it is the duty of the Board to canvass the petition to determine whether the persons whose names are shown thereon constitute the number of persons and with the qualifications required by statute. In making such a determination the Board is acting in a judicial capacity and the entry of a judgment determining the facts is judicial. Mohundro v. Tippah County, 174 Miss. 512, 165 So. 124; Simpson County v. Burkett, 178 Miss. 44, 172 So. 329; Madison County v. Powell, 75 Miss. 762; Power v. Robertson, 130 Miss. 188, 93 So. 769; Green v. Hutson, 139 Miss. 471, 104 So. 171; Costas v. Board of Supervisors, 196 Miss. 104, 15 So.2d 365, 16 So.2d 378, 198 Miss. 440, 22 So.2d 229; Myles v. Board of Supervisors, 33 So.2d 810.
II. It is also thoroughly well settled by the decisions of our Court that when a petition is filed with the Board of Supervisors and a determination has been made by the Board in respect to the number and qualifications of the signers thereon, such number of signers and such qualifications are to be determined as of the date the board adjudicates the facts, and not as of the date the petition is filed, nor as of any date antecedent to such adjudication. Costas v. Board of Supervisors, 196 Miss. 104, 15 So.2d 365; Moffett v. Attala County, 181 Miss. 419, 179 So. 352; Allison v. Camp Creek Drainage Dist., 211 Miss. 354, 51 So.2d 743; Miles v. Board of Supervisors, 200 Miss. 214, 26 So.2d 541; Simpson v. Burkett, 178 Miss. 44, 172 So. 329; Price v. Sims, 116 Miss. 687, 77 So. 649; Perkins v. Henderson, 68 Miss. 631, 9 So. 897; Madison County v. Powell, 75 Miss. 762; Rogers v. Hahn, 63 Miss. 578.
Nor does the fact that the statute may require the Board to take immediate action upon the filing of the requisite petition change this rule, this point being specifically settled in Costas v. Board, 196 Miss. 104, 15 So.2d 365.
It is also thoroughly well settled by the decisions of our Court that persons who have signed a petition which has been filed with the Board have the right to remove their names therefrom at any time prior to final action by the Board. Rogers v. Hahn, 63 Miss. 578; Perkins v. Henderson, 68 Miss. 631, 9 So. 897; Ferguson v. Monroe County, 71 Miss. 724; Price v. Sims, 116 Miss. 687, 77 So. 649; Power v. Robertson, 130 Miss. 188, 93 So. 766; Miles v. Board of Supervisors, 33 So.2d 810; Allison v. Camp Creek Drainage Dist., 211 Miss. 354, 51 So.2d 743.
Appellant, however, completely disregards the above authorities, apparently feeling that they are not applicable because in the present case the validating statute prescribed the hour on or prior to which the petition should be filed with the Board of Supervisors. But it must immediately be evident that this fact does not dispense with the necessity of the board canvassing the petition and making a judicial determination of the question of fact presented; nor with the fundamental principle that where judicial determinations are made, the facts are to be determined as of the date of the adjudication and not of some prior date. Nor does it require the application of a different rule from that so well settled by the decisions of our Court (hereinbefore cited), that persons who have signed a petition have the right to remove their names therefrom at any time prior to final action by the Board. Appellant, however, cites the case of Allison v. Camp Creek Drainage District, 211 Miss. 354, 51 So.2d 743, and without discussing it or quoting therefrom states that it clearly decides the point in his favor. As a matter of fact the precise point here presented was not directly involved in, nor expressly decided in the Allison case, but the dicta of the Court, in that opinion, is in accord with the principles which are announced by the cases heretofore cited in our brief.
The precise point which is here urged by appellant was decided contrary to his contention in the case of Rogers v. Hahn, 63 Miss. 578. There the statute provided that when petitions were filed for the granting of a liquor license the same should remain on file for thirty days, within which time counter-petitions could be filed. Thirty-one days after Hahn's petition was filed, and before it had been acted upon, counter-petitions were filed, but the Board refused to consider them because filed after the thirty day period prescribed by statute. The Supreme Court held this to be error, saying that so long as the board had not judicially determined the facts, counter-petitions should be received and considered.
W.D. Coleman appealed to the circuit court on a bill of exceptions from an order and resolution of the Board of Supervisors of Choctaw County, issuing county road bonds in the sum of $100,000. From an adverse judgment there, he appealed here.
On March 10, 1952, the board of supervisors, acting under Chapter 241, Laws of 1950, adopted a resolution, declaring its intention to issue the bonds of Choctaw County for road purposes in the sum of $100,000. The existence of all necessary conditions precedent was adjudicated. There was publication of notice, as required by law, of the intention of the bond to execute and deliver the bonds unless a petition, signed by at least 20% of the qualified electors of the county, protesting the issuance or calling for an election thereon, as provided by Section 5 of said Chapter, should be filed with the clerk at or prior to 5 o'clock P.M. on April 7, 1952.
At 9:05 A.M., April 7, 1952, there was filed with the clerk of the board a petition with 754 signers, more than 20% of the qualified electors of the county, praying that the bonds be not issued unless or until an election had been held thereon, in which a majority of the qualified electors should vote in favor of the issuance of the bonds.
The board did not canvass or pass upon the sufficiency of the petition at the following April meeting, but continued the same until the regular May meeting.
Thereafter, on May 5, 1952, a petition by 262 persons was filed with the clerk in which the petitioners averred that they had theretofore signed the petition protesting against the issuance of the bonds, unless authorized in an election; but that, after mature reflection and with a better understanding of the matter, they felt that the best interest of the county would be served by the issuance of the bonds. Petitioners requested the removal of their names from the original petition and stated therein that, by their signatures, they were removing their names therefrom, and were expressing themselves in favor of the bond issue.
Thereafter, on the same date, the board, by its order, adjudicated that a petition had been filed on April 7, 1952, but that the determination thereof had been continued until the May 1952 meeting; that the board had canvassed and carefully examined the petition and found that it contained only 494 qualified electors; that there were 3,332 qualified electors in the county, and that 494 did not constitute 20% of such electors in the county. And, said order and resolution directed the sale of the bonds on May 10, 1952.
The Legislature, prior to May 5, 1952, enacted a local and private bill, which purported to validate all acts of the board of supervisors theretofore taken in the matter of the issuance of these bonds; but the act did not validate the sale and delivery of such bonds, if a petition signed by at least 20% of the qualified electors of the county should protest against the issuance or demand an election on or before the date set for objections therefor; and it expressly provided that, in such event, the bonds should not be executed and delivered until after an election in which the issuance should be approved.
The appellant's exceptions and complaints here amount to two reasons: (1) That the board, under Chapter 241, Laws of 1950, supra, and the local and private validating act, supra, was bound by the petition as filed on April 7, 1952, and could not thereafter remove any names from the petition; and (2) the proposed sale and delivery of the bonds on five days notice was unlawful.
We pass on the second objection first. Chapter 325, Laws of 1946, Section 4357-01, Code of 1942 Annotated, requires that bonds such as these "shall be advertised for sale on sealed bids or at public auction, which advertisement shall be published at least two times in a newspaper published in the county in which the political subdivision, instrumentality, or a part thereof is situated, or county in which the bonds are to be sold; and if no newspaper is published in such county, then in a newspaper published in an adjoining county; the first publication in each case to be made at least ten (10) days preceding the date fixed for the reception of bids; and such notice to give the time and place of sale."
However, it is expressly provided therein that the failure to advertise properly shall not invalidate the bonds, the statute being in these words: "A failure to comply with any provision of this act shall not invalidate such bonds, but any member of the governing board, commission, or other governing authority who . . . shall wilfully fail to give the notices herein required shall be liable personally and on his official bond for a penalty in each case of five hundred dollars ($500.00), and, in addition thereto, for all financial loss that may result to the county, . . . resulting from such wilful failure to comply herewith; . . ." The method for the recovery of such penalty and damages is also provided for therein.
Appellant concedes that the 494 names remaining on the original petition, after 262 had been stricken therefrom by reason of the counter petition, did not constitute 20% of the qualified electors of the county.
Now, it is well-settled that (Hn 1) it is the duty of a board of supervisors to canvass the names on petitions filed with it in order to determine whether or not such petitions contain the required number with the requisite qualifications, and, that in doing so, the board acts judicially.
In Mohundro v. Board of Supervisors of Tippah County, 174 Miss. 512, 165 So. 124, this Court said: "The entering of the order for the election is the entering of a judgment, notwithstanding such judgment is mandatory if the required facts authorizing it exist. The finding of the necessary facts to authorize the judgment and the entering of the judgment are both judicial actions. In determining whether the required number of qualified electors had petitioned for an election, appellee was acting judicially, . . ." See also Simpson County v. Burkett, 178 Miss. 44, 172 So. 329; Madison County v. Powell, 75 Miss. 762; Power v. Robertson, 130 Miss. 188, 93 So. 769; Green v. Hutson, 139 Miss. 471, 104 So. 171; Costas v. Board of Supervisors, 196 Miss. 104, 15 So.2d 365, 16 So.2d 378; Costas v. Board of Supervisors, 198 Miss. 440, 22 So.2d 229; and Miles v. Board of Supervisors, 33 So.2d 810 (Miss.).
(Hn 2) Practical considerations may delay the canvass. In Costas v. Board of Supervisors, reported in 196 Miss. 104, the Court said: "A board, careful of its duty and responsibility and considerate as well of the interests of those affected, may be required by practical considerations to delay its decision in order to afford an opportunity to itself and others to examine and verify the petitions and to check their sufficiency. No action therein should be taken until it has determined this fact. Simpson County v. Burkett, 178 Miss. 44, 172 So. 329."
(Hn 3) Persons who have signed a petition, which has been filed with the board, have the right to take their names off at any time before final action by the board. In Price v. Sims, 116 Miss. 687, 77 So. 649, the Court said: "This court has uniformly held that signers to a petition addressed to a board of supervisors or a municipality can take their names therefrom by signing a counter-petition." See also Rogers v. Hahn, 63 Miss. 578; Perkins v. Henderson, 68 Miss. 631, 9 So. 897; Ferguson v. Monroe County, 71 Miss. 524; Power v. Robertson, 130 Miss. 188, 93 So. 766; Miles v. Board of Supervisors, supra, and Allison v. Camp Creek Drainage District, 211 Miss. 354, 51 So.2d 743.
The number of signers and their qualifications are determined as of the date of the board's adjudication, and not as of the date of the filing of the petition. In the case of Miles v. Board of Supervisors, 200 Miss. 214, 26 So.2d 541, this Court said: "Appellants next urge here the contention they made before the supervisors to the effect that the time as of which the number of qualified voters in the county and on the petition and the percentage on the petition must be determined is the meeting of the board at which the questions are adjudicated and not the date the petition is filed. Appellants are correct in that contention." See also Moffett v. Attala County, 181 Miss. 419, 179 So. 352; Costas v. Board of Supervisors, Allison v. Camp Creek Drainage District, Simpson v. Burkett, Price v. Sims, Perkins v. Henderson, Madison County v. Powell and Rogers v. Hahn, supra.
It follows therefore that the appellant's contentions are untenable, and that the trial court was correct in overruling his exceptions.
(Hn 4) Appellee contends that, if this cause is affirmed, in addition to costs, the appellant should be assessed with damages. However, this case is not one where damages may be imposed under Section 1971, Code of 1942.
Affirmed.
Roberds, P.J., and Hall, Holmes and Arrington, JJ., concur.
ON SUGGESTION OF ERROR
Apr. 13, 1953 27 Adv. S. 16 So.2d
The appellees suggest that the original opinion holds impliedly that the bonds were not advertised in accordance with law, and to that extent, it is erroneous, and should be modified.
The reference to Chap. 325, Laws of 1946, Sec. 4357-01, Code of 1942, Anno., was in answer to appellant's contention that the proposed sale and delivery of the bonds on five days notice was unlawful. The final order of issuance and for the sale was dated May 5, 1952. The bill of exceptions was signed by the president of the board on May 6, 1952. There was nothing in the record to show that the bonds were actually sold on May 10, 1952, or that they had been sold at all. The requirement for notice and the penalty for failure thereof, according to the provisions of Chap. 325, supra, and Sec. 4357-01, supra, was referred to solely for the purpose of saying that, if it should be conceded that the board was derelict in that respect, such dereliction would in no way invalidate the bonds.
The court dealt only with questions which had arisen at the time of the signing of the bill of exceptions. The original opinion did not intend to strike down or impair any of the provisions of the special act which was enacted for the purpose of validating these bonds; and in our opinion, it does not do so in any way.
The suggestion of error is overruled.
Roberds, P.J., and Hall, Lee and Holmes, JJ., concur.