Opinion
No. 33676.
April 24, 1939.
1. MANDAMUS.
Where electors had filed petition praying for issuance of bonds of school district for building and equipping new school building, election commissioners had certified essential matters for bond issue and board of supervisors had found all jurisdictional facts essential to issuance of bonds and directed their issuance and validation, and there had been no appeal to circuit court from order of board of supervisors directing validation of bonds, mandamus would not lie to compel election commissioners to properly count ballots.
2. MANDAMUS.
"Mandamus" is not a remedy to review or to control judgment of body undertaking to exercise discretionary power, but is a proceeding merely to compel action.
3. MANDAMUS.
Mandamus will not lie where there is an adequate remedy by appeal.
4. ABATEMENT AND REVIVAL.
Where electors had filed petition praying for issuance of bonds of school district for building and equipping new school building, election commissioners had certified essential matters and board of supervisors had found all jurisdictional facts essential to issuance of bonds and directed their issuance and validation, and there had been no appeal to circuit court, pendency of alleged mandamus suit in circuit court to compel election commissioners to properly count ballots was not a bar to validation proceeding, since writ of mandamus could not be substituted for appeal provided by statute (Code 1930, sec. 6211).
APPEAL from the chancery court of Pearl River county; HON. BEN STEVENS, Chancellor.
J.M. Morse, of Poplarville, for appellant.
The mandamus suit was the proper remedy.
Section 2348, Code of 1930; Walthall County case, 97 Miss. 599, 54 So. 257; Native Lbr. Co. v. Harrison County, 91 Miss. 562, 44 So. 841.
Section 6198 of the Mississippi Code of 1930 provides how the commissioners may purge the poll books and the registration books and provides that two are necessary to constitute a quorum but it requires the concurrence of at least two commissioners to render a decision.
Calvert v. Crosby, 163 Miss. 177, 139 So. 608; Carver v. State, 177 Miss. 54, 170 So. 643.
We contend that the action of one of the election commissioners with an outsider, after the election commissioners had adjourned and only one day prior to the election in striking from the poll books and registration books the names of the qualified electors was an illegal act.
Did the Chancery Court of Pearl River County have jurisdiction of the matter when the mandamus suit was properly filed in the Circuit Court of Pearl River County? See the case of Pearce v. Mantachie Consolidated School District, 134 Miss. 497, 90 So. 134. In that case the court held that by setting up a validation proceeding in the Chancery Court it does not deprive the Circuit Court of jurisdiction under provisions of the law, and that the law contemplates that validation proceedings may be taken after the proper court has entered its decree and no appeal has been taken therefrom.
The case of Faison v. City of Indianola, 156 Miss. 872, 127 So. 558, holds that circuit court first acquiring jurisdiction must be permitted to determine all questions without intrusion by chancery court.
We respectfully contend to the court that a grave injustice has been done to the qualified electors of this special consolidated school district in illegally striking their names from the registration and poll books. That by this proceeding the trustees of the school district were placing a lien upon the property located in the district, and to permit an illegal spoliation of the registration books and poll books and in this manner illegally placing a lien upon the property located in said school district. That to take an appeal from the board of supervisors in adjudicating that the bond issue was carried would have been futile and of no effect, that the board of supervisors could only enter the order which the election commissioners sent up, towit, that the election had carried, when in truth and in fact the same had not carried. That the proper method to reach this was as was done in this case, within the time provided by law, file a mandamus suit to compel the election commissioners to properly count the votes, and our court has so held.
Walthall County case, 97 Miss. 599, 54 So. 257; Sec. 2348, Code of 1930.
Hathorn Williams, of Poplarville, for appellee.
It is the contention of appellee that the objections setting up the mandamus proceeding is a collateral attack upon the findings and actions of the election commissioners and the board of supervisors of Pearl River County and upon the validation proceeding herein; that the proper way to have raised objections of the nature or kind presented by said objections was by direct appeal from the order of the board of supervisors to the circuit court, in the manner provided by Section 80 of the Code of 1906, Section 61 of the Code of 1930.
Johnson v. Bd. of Suprs., Yazoo County, 113 Miss. 495, 74 So. 321; Bd. of Suprs., Rankin County v. Lee, 147 Miss. 99, 113 So. 194; Green v. Hutson, 139 Miss. 471, 104 So. 171; Harvey v. Covington County, 161 Miss. 765, 138 So. 403; Pearce v. Mantachie Consolidated School Dist., 134 Miss. 497, 99 So. 134; Faison v. City of Indianola, 156 Miss. 872, 127 So. 558.
The Walthall County case, 97 Miss. 599, 54 So. 257, so strongly relied on by appellants, and the case of Native Lbr. Co. v. Harrison County, 91 Miss. 562, 44 So. 841, do not conflict with the authorities cited and quoted from by us, for the reason that (1) there was no remedy by direct appeal to the circuit court in those cases, and (2) the court was careful to point out in the Walthall County case that the election commissioners failed and refused to canvass and return the Slade box, but totally rejected it. The court also pointed out in that case that if even a partial canvass of the Slade box had been made the court would have had no authority to compel the election commissioners to reassemble and recanvass the returns.
In the case at bar we have the certificate of the election commissioners, made an exhibit to the objections, which certifies that the election commissioners met, as required by law, before the election, and determined that the number of qualified electors residing in said school district was 164, and from their canvass of the returns that a majority of the qualified electors residing in said district voted in favor of said bond issue. It is, therefore, seen that this is not a case of the election commissioners failing and refusing to purge the poll books and canvass the returns, but upon the contrary it is a case in which appellants seek to have the election commissioners reassemble and repurge the poll books and recanvass the returns and make such changes upon the poll books and in the returns as appellants think should be made.
We respectfully submit that no error was committed by the chancellor in sustaining appellee's motion to strike and in entering the decree validating the bonds, and that case should be affirmed.
This is an appeal from the judgment of the Chancery Court of Pearl River county, validating a $10,000 bond issue of the McNeill Special Consolidated School District. A petition was filed, as shown by the order of the Board of Supervisors, signed by twenty percent of the qualified electors, praying for the issuance of $10,000 of bonds of the said school district, to be used for building and equipping a new school building in the district. There is no complaint in regard to the sufficiency of the petition to the Board, nor of the action of the Board in ordering the election on the question of the issuance of said bonds, this having been done in accordance with the requirements of the law.
The election having been ordered, the election commissioners of the county met and revised the registration and poll books, gave notice of the election, and certified their action to the Board of Supervisors; which report of the commissioners was spread upon the minutes of the Board; and the election was declared to have resulted favorably to the issuance of such bonds. It is only in regard to the election that complaint is made in regard to the proceedings in the issuance of said bonds.
It is unnecessary to set out the entire report of the election commissioners, but only such part as pertains to the revisal and correction of the poll books, and the certificate in that regard to the Board of Supervisors. The pertinent part of this report as applied to the bond issue reads as follows: "We further certify that the ballots used in said election had printed thereon a brief statement of the amount and purpose of the proposed bond issue, and the words, `for the bond issue,' and `against the bond issue' as is shown by one of the tickets printed and used by the qualified electors voting in said election. We further certify that we determined at the meeting of the election commissioners first preceding said election, as required by section 6211 of the Mississippi Code of 1930, the number of qualified electors residing in said school district. The number of said qualified electors residing in said district and determined by us according to law are 164. We further certify that the number of votes cast at said election is 115; the number cast in favor of said bond issue was eighty-four votes; the number of votes cast against the said bond issue was 31 votes; and we further determined and certify to the Board of Supervisors of said county, that the said election was carried by a majority of all the qualified electors residing in said McNeill Consolidated School District. We therefore hereby certify to the Board of Supervisors of said county that the said election was carried in favor of the issuance of said bonds by a majority of all the votes cast in the said election."
To this was attached notice of the election, proof of publication of the notice, copy of the ballot. Whereupon the Board, as stated, proceeded to declare the election to have been carried in favor of the bond issue, ordered the issuance of the bonds, and that a copy of the proceedings be certified to the State Bond Attorney for validation. The State Bond Attorney certified that the bonds were legally issued, that all proceedings were regular, and that the bonds should be validated.
The cause was docketed, and the appellees, Greene, Smith, Dill, Hawthorne and Johnson filed objections to the bond issue as follows: "1. The Chancery Court has no jurisdiction in this matter because there is now pending in the Circuit Court of Pearl River county, Mississippi, a mandamus suit to compel the Election Commissioners of Pearl River county to meet and to properly count the ballots which they illegally refused to count, a true copy of said proceedings being herewith attached and marked Exhibit `A.' 2. That the Circuit Court has jurisdiction of this matter by the mandamus suit fully and completely, the same being filed within the time as required by law (see date of filing as shown by the exhibit), and the Chancery Court is powerless to do or perform anything in the premises with reference to the validation of the bonds until the Circuit Court of Pearl River county has passed upon the matter, and relinquished its jurisdiction of the matter of the mandamus suit above referred to. 3. That the bonds should not be validated because the district had no authority under the law to issue the bonds because the same did not carry in the election held. The objections, therefore, move the Court to abate this suit for the validation of the bonds until the Circuit Court of Pearl River county, Mississippi, can pass upon the mandamus suit."
To this objection was attached a petition for a writ of mandamus filed in the Circuit Court. This petition for mandamus, among other things, recited the issuance of the bonds of the district in the sum of $10,000, a copy of the order of the Board of Supervisors being made an exhibit to the petition. The petition alleged that the election commissioners, under the law, met and purged the poll books in July, 1938, leaving thereon the names of 197 voters who were qualified to vote upon the question of whether or not the bonds of the McNeill Special Consolidated School District should be issued. It further alleged that at the time of the election of the bond issue, eighty-four voted for, and thirty-one against, the issue; that there were eighty-two qualified electors residing in this District who did not vote, and that under the law under which this election was called, and the bonds attempted to be floated, those qualified electors who do not vote, in effect, vote against the bond issue. It is alleged that on the 29th of July, one day before the election, one of the election commissioners, Mr. Julius Moody, together with Mr. T.J. Gipson, wrote on the side of the poll book the words "moved," "transferred," "dead" and the like; a true list of the qualified electors in and for the McNeill Special Consolidated School District being attached as an exhibit "E" to the petition; and where the notation was made by Mr. Moody on the list, it is noted on the exhibit with a red lead pencil.
In the petition for mandamus it was further averred that the election managers took the position that these names had been stricken from the poll and registration books, and were not permitted to vote. When the election manager reported the result of the election to the election commissioners, and controversy arose, the election commissioners resolved themselves into a court, and heard testimony of all voters who had not voted in the said election; and struck therefrom enough names, so they were able to report to the Board of Supervisors at its adjourned August meeting that the election had been carried in favor of the bonds, a copy of which report was attached to the petition, marked exhibit "E."
It was further alleged that no one, not even the election commissioners, had authority, under the law, to change the registration books after they had met and revised the election rolls, as provided by law; and that the action of the election commissioners in having hearings was without authority of law, and void.
It will be seen from the objections that they were based upon the theory that the filing of the petition for mandamus in the Circuit Court prevented the Chancery Court from proceeding in the matter of the validation until the Circuit Court had disposed of the mandamus suit.
From the statement it will be noted that there was no appeal to the Circuit Court from the order of the Board of Supervisors, issuing the bonds, or directing their issuance, and directing their validation. Instead of appealing directly to the Circuit Court on a proper bill of exceptions, as might have been done, the objectors proceeded to file a petition for mandamus. It will also be noted that the election commissioners had certified to the Board of Supervisors the number of voters living in the district, the number who voted in the election, both for and against the bond issue, and the number of voters not voting in the election; and had certified that the majority of all the voters in the Consolidated School District had voted in favor of the bond issue.
The mandamus, under the facts recited, would not lie, because it is not a remedy to review discretion, or to control the judgment of the Board of Supervisors, or other body undertaking to exercise discretionary power, but is a proceeding merely to compel action — not to control action. A writ of mandamus will not lie to correct a judgment of the board of police; an appeal will lie from their judgment. Board of Police of Attala County v. Grant, 9 Smedes M. 77, 47 Am. Dec. 102. Mandamus will not lie where there is adequate remedy by appeal. City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287.
The election commissioners, as shown by the record, certified to the Board of Supervisors the essential matters for the bond issue, and had acted, and had determined all the jurisdictional facts essential to the validity of the election, and the Board of Supervisors had found all the jurisdictional facts essential to the issuance of the bonds, and had directed their issuance and validation. Consequently, the pendency of the alleged mandamus suit in the Circuit Court was not a sufficient bar to stop the validation proceedings. Indeed, the Circuit Court could not have granted the relief or the mandamus that was sought by the petition for mandamus, in that suit. It could not substitute a writ of mandamus for the appeal provided by statute. The Chancery Court entertained this view, and decreed that the bonds were valid; and its judgment must be affirmed.
Affirmed.