Elliott v. Board of Sup'rs

179 So. 344, 179 So. 334, 182 Miss. 631, 1938 Miss. LEXIS 132

• Court: Mississippi Supreme Court
• Decided: March 7, 1938
• Status: Published

Opinions

The movants, Buck Elliott et al., filed a motion herein for a supersedeas, pending appeal from an order of the circuit court, sustaining an order of the Board of Supervisors of Lamar County excluding beer and wine from said county. The case was tried on its merits in the circuit court, on the record of appeal from the Board of Supervisors; and the circuit court, affirming the order of the Board of Supervisors, granted an appeal here, but denied a supersedeas; and petitioners herein pray, by the motion, that a supersedeas be granted, pending a hearing on appeal. Accompanying the petition for supersedeas is a copy of the petition for the election, containing, as is alleged, more than 20 per cent. of the qualified electors of the county, and the order of the board, finding that there were more than 20 per cent. of the qualified electors, and the order of the board directing the election commissioners to hold the election. It also shows the report of the commissioners, filed with the Board of Supervisors, showing the holding of the election, and the giving of the notice of said election for more than thirty days, and containing a copy of the notice, with proof of publication, in a newspaper of the county, and also copy of the notice posted on the bulletin board at the courthouse more than thirty days prior to the holding of the election, with the proposition submitted to the qualified electors, and the result of the election in the said various precincts of the county, showing the vote for and against the proposition in each precinct, and in the county as a whole, which resulted in a majority of the votes being cast for the exclusion of beer and wine from the county. In other words, the exhibits to the petition herein show a compliance with the law in the holding of the election, unless it be held that the order failed to recite that the newspaper in which the notice was published had been in existence for more than one year prior to the publication therein. Under chapter 313, Laws of 1936, which provides that, whenever it is required by law that any legal notice shall be published in a newspaper in this state, it shall be held to mean publication in some newspaper which has been established for at least twelve months next prior to the first publication of the notice to be published. Provided, however, that the provisions of this section shall not apply to any newspaper published at the time of the approval of this act, regardless of the length of time it has been published. Provided, further, that in the event of the discontinuance of the publication of the only newspaper in any county qualified to publish legal notices, any other newspaper published in the county, regardless of the length of time it has been published, shall be deemed qualified to publish legal notices.

We do not think that the recital that the newspaper in which the notice was published had been in existence for more than twelve months prior to the publication of the first issue is a jurisdictional requirement. It is the ultimate jurisdictional facts, as distinguished from evidentiary facts, that must be shown on the minutes of the Board of Supervisors, or other court of inferior and limited jurisdiction. The notice herein recites the newspaper in which the notices appeared, but is silent as to how long the newspaper had been published. The object of the statute here involved was to favor regular, established newspapers, and to avoid publication of important notices in newspapers so recently established as not to assure the general notice to the public. It appears from the petition and exhibits before us, to our satisfaction, that the law was complied with in all substantial particulars, and it would be fruitless and unwarranted to grant a supersedeas pending the appeal.

The motion is therefore overruled.

Overruled.