Greene v. Village of Rienzi , 87 Miss. 463 ( 1905 )

Truly, J.,

delivered the opinion of the court.

The case made by the bill and exhibits on the only points Ave deem it necessary to discuss is this: The village of Rienzi is governed by the code chapter on “Municipalities.” The de facto board of mayor and aldermen of the village decided to issue municipal bonds to the amount of $1,500 for the purpose of purchasing land and erecting a schoolhouse. A petition signed by a sufficient number of taxpayers having been presented, protesting against the issuance, an election was ordered, submitting the question to a vote. The election commissioners reported that thirteen votes were cast in favor of the issue and eight against it. Thereupon the board advertised for proposals to purchase the bonds; but before the bonds were actually negotiated, issued, and delivered, injunction was issued on the bill of complaint herein, and the sale and delivery of the bonds restrained. The bill states two grounds on which appellants seek to prevent the issuance of the bonds: (1) That the board of mayor and aldermen of the village of Rienzi are not a legal board, because they were never elected according to law, and hence all their actions in the premises were illegal and void; (2) that at the election at which the question of the issuance of the bonds was submitted “none of those voting were registered voters of said village, and some of those who voted were not qualified voters of the county of Alcorn, state of Mississippi, being-delinquent for taxes due state and county, and some had not resided in said village for twelve months.” The bill further charges that prior to said election no registration was ever had of the qualified voters of said village. A demurrer to the bill was sustained, the injunction dissolved, and the bill dismissed; and upon appeal this action of the court is assigned as error.

As to the first ground relied on by appellants, we content ourselves by reaffirming the established doctrine that the law attaches validity to the acts of de facto officers. Powers v. State, 83 Miss., 702 (36 South. Rep., 6). It is admitted that the board of mayor and aldermen are actually clothed with the insignia of office and exercising its powers and functions. Their official acts are therefore valid and binding, however questionable their legal title to the office may be. Norton v. Shelby County, 118 U. S., 425 (6 Sup. Ct., 1121; 30 L. ed., 178).

The second ground on which the bill of complaint seeks to prevent the issuance of the bonds is that there was no duly qualified electorate in the village of Rienzi, and that none of those who participated in the bond election were registered voters. To this it is replied by appellees that no registration is necessary for such election; that it is, in truth, not an election at all, in the sense in which that term is used in the constitutional and statutory provisions dealing with registration and elections generally, but is merely a special device for ascertaining the will of the taxpayers with regard to a purely local question. An isolated expression in the opinion of the court in Bcw v. State, 71 Miss., 1 (13 South. Rep., 868), is relied on as authority. We think the contention unsound. The very case relied on by appellees is conclusive against their position. In the Bew case, although the election was merely a legislatively established special device for ascertaining the will of the people on a question submitted to their decision, the court held that previous registration was essential to the exercise of the right of suffrage at such election. Says the court: “One is not qualified to vote if not duly registered ; but being duly registered does not entitle him to vote. It is an essential prerequisite, but does not qualify to vote.. It is that without which all other qualifications to be an elector go for nothing; but it is not sufficient to entitle one to vote. Registration is not made by the constitution or law even prima facie evidence of the right to vote. That is to be passed on by the officers holding the election, who are made “judges o-f-cations of electors.” They would reject, tiré "ballot of one w. had not been registered, and should not receive the ballot merely because the person offering it had been registered. They must judge of the qualifications of electors offering to vote, “of which one necessary thing is registration.” There cannot be any qualified elector not registered. “It is that without which one cannot be a qualified elector — an essential prerequisite — and yet not conferring the right.” Ferguson v. Monroe County, 71 Miss., 533 (14 South Rep., 83). Code 1892, § § 3028, 3029, prescribing the conditions precedent to the lawful exercise of the right of suffrage by electors of a municipality, providesFirst, the person must be a qualified elector of the county, and this carries with it by necessary legal implication that he'must be not only registered in the county as required by law, but that he must also possess the other necessary qualifications authorizing any person to vote; second, he must have resided within the corporate limits for one year next before he offers to register; third, he must not be in default for taxes due the municipality for the two preceding years. If he possess all these qualifications, then he shall be entitled to register and vote at municipal elections; but in municipal elections, as those dealt with by the constitution and the general laws, registration is a prerequisite to the exercise of the right of suffrage. This being so, and the bill of complaint expressly charging, and the averment being admitted by demurrer, that there were no registered voters in the village of Rienzi, it follows necessarily and inevitably that there was no one qualified to vote at the election.

The contention that, because this is simply the submission of the question of the issuance of municipal bonds to be voted on, it is not, properly speaking, an election within the purview of the law, but merely “a special device for determining” the will of the people interested with reference thereto, and that therefore it.is not necessary for those participating therein to possess the ■■gHaü"jmstitutional and statutory qualifications of electors, (j^H^ncLIt'ig-'true, as before stated, that the general law applicable to elections 'ctoesjiot include legislative plans specially devised for ascertaining the will of the people; it is also true that it is within the province of the legislature to devise any other of many different schemes by which the issuance of municipal bonds or the determination of other local questions might be had, and that in some instances bonds may'lawfully, be issued without reference to the method here under review! But this does not change the rule that when the assent of a majority of the participating electors is required, and that assent is to be signified by votes cast at an election held for that specific purpose, as provided by Code 1892, § 3016, tbe word “elector,” as employed in that section, must be given its generally accepted meaning; and the term as judicially defined in the Bew case means “those who would be entitled to vote at any election held in pursuance of the constitution and laws of the state.” The reasoning of that case is controlling in this. “The code is to be considered as a whole and with reference to the constitution.” So considering it, the conclusion is inescapable that when sec. 3016 requires the affirmative authorization of “a majority of the electors” to be evidenced by their “voting in an election to be ordered for that purpose,” it means those who would be qualified as “electors” in an election contemplated by the constitution and laws. To the same effect, see Clarksdale v. Broaddus, 77 Miss., 670 (28 South. Rep., 954).

It is no answer to this to say that the legislature might have authorized the majority of the taxpayers to determine the question or that the issuance of 'bonds under any and all circumstances might have been submitted solely to the discretion of the board of mayor and aldermen of the municipality. Granting this, the fact remains that the legislature did not so decide, but required, as a condition precedent to the lawful issuance of municipal bonds under the case made by this record, the authorization by “a majority of the electors voting in an election to be ordered for that purpose.” Code 1892, § 30.16. The argument based on the familiar and immutably-fixed doctrine that dona fide holders of bonds, relying upon the face of the record, will be protected against any informalities or irregularities in the proceedings authorizing the issuance of the bonds, or from mistakes or lack of wisdom on the part of the authorities issuing and negotiating the bonds, is, of course, perfectly sound. Lexington v. Bank, 75 Miss., 1 (22 South. Rep., 291). But it is foreign to this case, for the reason that the bonds have never been issued or negotiated, and the rights of third persons are in no wise involved. It being admitted, therefore, by the demurrer, that there was no lawful electorate in the village of Fienzi, and that, consequently, no legal voters participated in the election, it follows that the board of mayor and aldermen of that municipality were not legally authorized to issue the bonds in question.

The decree is reversed, the demurrer overruled, the injunction reinstated, and the cause remanded for answer within thirty days after filing of mandate in the court loelow.