Henry v. Bd. of Sup'rs Newton Co.

34 So. 2d 232, 203 Miss. 780, 1948 Miss. LEXIS 321

• Court: Mississippi Supreme Court
• Decided: March 8, 1948
• Docket: No. 36704.
• Status: Published

Opinions

In August 1947 the Board of Supervisors of Newton County made "an order declaring the transportation, storage, sale, distribution, receipt and/or manufacture of wine and beer of the kind and character legalized by Chapter 171 of the Mississippi Laws of 1934 to be unlawful in Newton County." This order of the Board has been brought to this Court by an order of certiorari. It was based on an election held in July 1947, pursuant to an order of the board made on July 4, 1947. Section 10208, Code 1942, under which the order for this election was made, provides that "no election on the question shall be held in any one county oftener than once in five years, provided, however, that in counties which have elected or may elect by a majority vote of the duly qualified electors voting in the election that the transportation, storage, sale, distribution, receipt or manufacture of wine or beer of an alcoholic content of not more than four per centum by weight shall not be permitted in said county that an election may be held in the same manner as the election herein above provided on the question of whether or not the said transportation, storage, sale, distribution, receipt or manufacture of said beverages and shall be ordered by the board of supervisors of such county on a petition of twenty per cent (20%) of the duly qualified electors of such county; but no election on this question can be ordered more often than once in five years." The order of the board for the election does not adjudicate or in any way recite anything relative to any prior election on this question in Newton County, and notice of the election was given by publication in a newspaper and by posting a notice thereof on the bulletin board at the court-house.

The contentions of counsel for the appellant are: (1), whether an election had been held on this question in Newton County within five years prior to the making of this order therefor was a jurisdictional fact which the board of supervisors should have adjudicated in accord with the statute before it was authorized to make the order; (2), there was no legal notice of the election; and (3), that the published notice does not "contain a statement of the proposition to be voted on at said election", as required by the statute.

Whether or not the holding of a prior election on this question in the county is a jurisdictional fact, on the decision of which in accord with the statute and its recital in the board's minutes depends the jurisdiction of a board of supervisors to order such an election, is a difficult question to decide, and a difference of opinion thereon has arisen among us. Since the enactment of this statute in 1934, a number of elections have been held under it without the order of the board of supervisors therefor containing any reference whatever to whether any such election had been theretofore held in the county. Some of them have been brought to this Court and the elections upheld without this question being raised or discussed by the Court. It therefore becomes our duty to obey the well-established rule that the interpretation put upon a doubtful statute by the department of the government charged with its administration and followed for a considerable time should be accepted by the courts. Briscoe v. Buzbee, 163 Miss. 574, 143 So. 407 and 887. Cf. American Oil Co. v. Marion County, 187 Miss. 148, 192 So. 296. This is in accord with the maxim, "Optima est legis interpres consuetudo (Custom is the best interpreter of the law)", 46 C.J., p. 1122, 50 Am. Jur. p. 309, and with the inference that "the fact that the point has not been raised (though it could have been in the cases that have heretofore come to this Court) by counsel or stated by the court is strong support that it is now made without ground." Gabriel v. Brame, 200 Miss. 767, 28 So.2d 581, 584; Gulf Refining Co. v. Travis, 201 Miss. 336, 29 So.2d 100.

Section 10208, Code 1942, provides that the elections thereunder shall be held "under the election laws of the state," and under Section 3018 thereof, thirty days' notice of the election must be given to the qualified voters. Simpson County v. Burkett, 178 Miss. 44, 172 So. 329. The statute, however, is silent as to how the publication of the notice should be made. Counsel for the appellant says that this being true, the publication should be in accord with that required under a statute analogous to this one which, he says, is Section 3294, Code of 1942, which deals with special elections to fill vacancies in offices. However, we are of the opinion that the statute contemplates that the publication of the notice of the election should be made in the usual and ordinary way that notice of county-wide matters are usually given, that is, by publication in a newspaper; and this has heretofore been the custom in giving notice of such elections.

This published notice was as follows: "To The Qualified Electors of Newton County, Mississippi: In pursuance of an order of the Board of Supervisors of Newton County, Mississippi, made and entered in the minutes of said board of the 4th day of June, 1947, notice is hereby given that an election will be held in said County on the 22nd day of July, 1947, as provided by Section 2 of Chapter 171 of the Laws of 1934, as amended by Chapter 224 of the Laws of Mississippi of 1942, and as contained in Section 10208 of the Mississippi Code of 1942 for the purpose of determining by a majority vote of the qualified electors voting in said election whether or not the transportation, storage, sale, distribution, receipt, and/or manufacture of beer and wine of an alcoholic content of not more than four per centum (4%) by weight shall be excluded from said County of Newton." It is difficult to see how the notice could have more specifically stated the proposition to be voted on.

Affirmed.