Ferguson v. Board of Supervisors

71 Miss. 524

• Court: Mississippi Supreme Court
• Decided: October 15, 1893
• Status: Published

Opinion

Campbell, C. J.,

delivered the opinion of the court.

The circuit court rightly refused to dismiss the appeal. Code 1892, § 79; Deberry v. Holly Springs, 85 Miss., 385; Wilson v. Wallace, 64 Ib., 13. The argument that, because § 1581 of the code gives an appeal from a grant of license, the right of appeal on a totally different question must be assumed to be denied, on the principle expressio unios exclusio alterius, is not sound. An appeal from a grant of license is given, and one from refusal of license is not given, because granting or refusing license is discretionary, and no appeal could properly be had from an exercise of discretion, éxcept in the interest of temperance and to give the opponents of license an advantage. Allowing an appeal from a grant of license, and silence as to one in case of refusal, makes the maxim quoted applicable and decisive that no appeal lies in case of refusal of license; but it has no application to the question of the right of appeal from a decision of the board of supervisors dealing with § 1610.

The argument that no appeal lies because none is given by chapter 37 of the code, and that it is an independent chapter, and to be considered alone and without reference to other provisions, must be rejected, for, if it were accepted as true in its full import, we would have no means of determining who are qualified electors of any county or what are legal voters as spoken of in the various sections regulating elections to determine as to the sale of liquors, and petitions for license to sell by retail or wholesale, for the chapter itself contains no definition of these terms. We are therefore compelled, by the necessity and propriety of the case, to adopt the view heretofore announced, and now re-affirmed, that this chapter 37 of the code is to be viewed as part of a whole, and as having reference to the constitution and laws of which it is but a part; that it was framed and adopted with this view, and in using the expression “ qualified electors,” it had reference to those who are such under the constitution and laws, and that “legal votes” are those cast according to law by those who could cast legal votes at an election contemplated by the constitution and laws in pursuance of it. Therefore, in considering chapter 37, we are not restricted to its provisions, except wherein any of them may be in their nature exclusive of all others and independent of them.

It seems clear to us that any qualified elector and taxpayer has the right to appeal from any decision of the board of supervisors ordering an election under § 1610 of the code, for that is the only matter in the business in which the board is to make a “ decision.” Ordering the election and appointing commissioners to hold it terminates the duty of the board as to the election. It has no more to do with it, except to receive the report of the commissioners of the result of the election, and have it recorded on its minutes. It decides only as to ordering the election, and this decision is the thing to be appealed from, if any thing can be, connected with the whole proceeding. The statute makes no provision for contestingthe election before any constituted tribunal. The matter of dealing with the returns of the election from the precincts and declaring the result is committed w'holly to the commissioners of election provided for, who are to declare the result, and report it to the board of supervisors, to be spread on its minutes as a permanent memorial of the result. No duty is imposed on the board as to such return. No power is conferred on it, hut it is passively to receive the return and have it spread on its minutes. The only thing committed to it to make a decision on is the ordering the election. Declaring the result is committed to the commissioners, who are to canvass the returns and ascertain and determine the result. What is the allowable scope of their investigations in dealing with the matter committed to them, is a disputed and unsettled question not here involved; but that the board of supervisors has no decision to make as to the returns is very clear.

If no appeal lies from the decision of the board of the only matter for it to decide, there is no appeal, and no means of invoking the judgment of a higher tribunal on any question involved in the proceeding, which may involve most important results. It is as well for the cause of temperance and opposition to the sale of liquors as for those who favor the sale of liquors, to maintain the right of appeal, for it may happen that erroneous decisions may be made in ordering elections under circumstances favorable to the sale. It is quite conceivable that persons favoring the sale of liquor may seize a favorable condition of things as to the qualified electors of a county, and force an election with the favorable conditions. No harm can- result from the right of appeal. Much may result from its denial. Were it doubtful whether the right exists, it would be proper to solve it in favor of the right, but we do not so regard it, and think it plainly given. It is unfortunate that the matter is not better regulated, and that provision was not made for delaying further proceedings in case of appeal, until a decision of the appeal; but the fact that embarrassment may result is not an argument against allowing an appeal plainly given. It is true that an appeal is not matter of right unless given. It is the creature of law, as argued; but no jealousy of the right of appeal should be indulged, and lead to a narrow construction of a law allowing appeal. The judicial determination of controversies is one of the chief functions of organized society, for which the judicial department is created, and an appeal ultimately to this court is the constituted mode of obtaining the authoritative decision of the state, whose voice we utter, and whose judgment we register, binding on all.

While it is admissible for the legislature to deny or fail to-give the right of appeal where it is not secured by the constitution, it is so manifestly right that one aggrieved by the decision of any controversy by an inferior tribunal should be entitled to invoke the judgment of the commonwealth through its highest tribunal, as to make proper the rule of construction we have announced in favor of the right of appeal.

The circuit court erred in affirming the decision of the board of supervisors, which was clearly wrong in holding that it would regard the registration book of the county as-conclusive evidence of the qualified electors of the óounty. So far from this being true, the registration book is not even prima fade evidence of the number of qualified electors. It is evidence of nothing except of the list of persons registered, and Avho have complied with that requisite to the right to vote. It does not confer the right to vote. It is that without Avhich one cannot be a qualified elector, an essential prerequisite, and yet not conferring the right. There cannot be any qualified elector not registered, but there may be thousands registered and not qualified electors. It may be determined from, the registration book that the number of qualified electors does not exceed those shoAvn by it. It may be seen by an inspection of it that certain persons are not . qualified electors because not registered; but it cannot be determined from the registration book that there is a single qualified elector in the county. The right to register, and being registered, and the right to vote, are distinct and different things. One may be registered and not be entitled to vote. We examined and decided this question, at the present term, in Beto v. The State, ante, p. 1, and are satisfied with the vieAV there announced and repeated now. There seems to have been great misconception on the subject, which led to bad legislation, some violative of the constitution and some not fully carrying out its spirit. In the case cited Ave held § 3612 of the code of 1892 unconstitutional in forbidding any person to be registered who has not paid all taxes. The section alluded to as not carrying out the spirit of the constitution is 3615, which denies the right to register within four months of an election, Avhich unduly interferes with the freedom of registration at any time. There-is nothing in the constitution to inhibit registration on the day of an election or at any time. One cannot vote within four months of his registration, but, registering and voting being distinct things, no reason exists why a man may not register, being qualified for that, at any time, and his right to vote will be determined when he offers to vote.

Registration books show the list of possible voters. The actual legal voters within that list can be determined only at the ballot-boxes, or, where it becomes a question for decision elsewhere, by inquiring, who would be entitled to be received as qualified electors at the ballot-boxes. The constitution does not say there shall be no registration within four months of an election. Its language is: “ Sec. 251. Electors shall not be registered within four months next before any election at which they may offer to vote.” But under this there is no reason why registration may not go on without intermission, for, when one will offer to vote is in the future, and depends on himself. He may not vote at an election held within four months of his registration, but he may desire to register, so as to qualify himself to vote at any election which may be held one, two, three or four months after an election in November. It may be that a special election will be held a few weeks or months after the regular election, or there may be a contest similar to this about the sale of liquors, with reference to any of which he may desire to be qualified to vote. "With a denial of the right to register for four months prior to, say, the seventh of November, when an election was held, it would be impossible for him to be registered and qualified to vote at any election held before the seventh March. The constitution, in section 251, manifests anxiety to avoid denial of the right to register so as to qualify for any election, by the provision securing the right to any who may attain majority or complete the required residence within the four months before an election. One who will become of the age of twenty-one years or complete the required residence on the day of the election, is entitled to be registered four months prior to the coming election, so as to avoid the rule that four months must elapse between being registered and voting. In view of this manifest purpose of the constitution to enable all having the requisite qualifications when an election is held to qualify by the essential of being registered, it would seem that facilities for registering at any time should be furnished by law. These last observations are made as the complement of views announced by us in the former decision mentioned, and in this, in order fully to present our interpretation of the constitution on this important subject, which has been so misundei’stood.

It was the duty of the board of supervisors to ascertain and determine that the petition contained the signatures of one-third of the qualified electors of Monroe county, for it is only on such petition that an election of the kind petitioned for can be lawfully ordered. The authority is special, and the result of the election, if against sale, is to have the extraordinary effect of putting in operation a prohibitory and highly penal law. There must be conformity to the law in ordering the election provided for, in order to make the result effective. In order to ascertain if the petition was signed by one-third of the qualified electors, it was necessary to examine the registration book, to see which of the petitioners possessed the necessary qualification of being registered, and to reject from the petition all names not registered. The registration book, too, was to be taken as showing all who are possible qualified electors in the county. Then inquiry was admissible, and to be made, as to who of the petitioners, being duly registered, were qualified electors, and any found not to be should have been rejected from the petition. •Section 241 of the constitution prescribes the qualification of electors, and the qualified electors meant by §1610 of the code are those declared such by the constitution. Any petitioner not having the prescribed qualifications should have been rejected. If, on investigation, it appeared that •one-third of the qualified electors of the county entitled to vote at an election held in pursuance of the constitution and laws had signed the petition, the election should have been ■ordered; otherwise not.

The board rightly held that names signed more than once, .and names of dead men, would be disregarded, as far as was proper — that is, reject names of the dead, and. count those signed too often but once.

The board was in error in deciding that it would regard the names of persons not signed by them, but by their authority. That used to be the law, but it is not so now. Section 1610, code of 1892, requires the petition, in writing, of one-third of the qualified electors “ signed by them,” and § 1520 provides that “in all cases where the signature of any person is required by law, it shall always be the proper handwriting of such person, or, in case he be unable to write, his proper mark.” There is no escape from this positive and plain requirement, and it must be duly observed. Its effect is to make necessary the proper handwriting of the petitioner, or his “ proper mark,” whatever that is, if he cannot write. No more is a signature required by law to be affixed by proxy. It must be signed by the hand of the petitioner himself. Ita lex scripta est, and for wise purposes, as we must suppose. Anyhow, it cannot be disregarded, whatever may be thought of its wisdom, and it renders worthless every name on the petition not put there by the hand of the petitioner.

Judgment reversed, and,, rendering the judgment which should have been rendered by the circuit court, the decision of the board of supervisors ordering an election is reversed and vacated, and the cause remanded to the circuit court, to be remanded to the board, of supervisors.