Burns v. Board of Supervisors , 102 Miss. 390 ( 1912 )

Reed, J.,

delivered the opinion of the court.

This case is before the court upon appeal from the action of the circuit court in sustaining a demurrer to the petition of appellant, praying for the issuance of a mandamus requiring appellees, the board of supervisors of Smith county,’to order another election, submitting to the qualified electors of that county the question as to what point in the county the seat of justice shall be removed. The following facts are shown in the petition:

At the regular July, 1912 meeting, of the board of supervisors of Smith county, Mississippi, pursuant to the provisions of chapter 314, Laws of Mississippi of 1910, a petition was presented, signed by more than seven hundred of the qualified electors of the county, praying the board of supervisors to order an election on the question of removal or no removal of the seat of justice of that county. It is not stated in the petition where it was proposed to remove the county seat to. At that meeting the board ordered the election to be held on October 1, 1912. The only question submitted was the removal or no removal of the county seat. At the time the election was called there were two thousand nine hundred qualified electors in the county. On September 1, 1912, the registration and poll books of the county were destroyed by fire. On October 1, 1912, the day the election was held, the names of nineteen hundred and twenty-eight electors of the county had been restored to the registration and poll boots. At the election fourteen hundred and one votes were cast, nine hundred and forty-four in favor of removal, and four hundred and fifty-seven against removal. On October 8, 1912, the board met and entered an order on its minutes declaring that the election resulted against the removal.

The question for decision is whether the action of the board in ordering that the result of the election was against the removal of the seat of justice is correct. Section 2, chapter 314, Laws of Mississippi of 1910, provides that the result of the” election on the question of removal or no removal shall be certified to the board of .supervisors of the county, “who are ^authorized to assemble in special session five clays after said election to receive the same, and if the necessary number of votes have been cast for removal, as required by section 259 of the Constitution of the state of Mississippi, the board of supervisors' are further authorized at said special" .session to order an election for the purpose of submitting to the qualified electors as to what point the seat of justice shall he removed.” It is incumbent upon the hoard of supervisors to decide whether the necessary number of votes have been cast for the removal before taking further action.

In the present case the board decided that the necessary number had not been cast for removal. It 'will be noted that it was provided in the act that the. number cast for removal must be as required by section 259 of the Constitution. The following is section 259 in full: “No county seat shall he removed unless such removal he authorized by two-thirds of the electors of the county voting therefor; but when the proposed removal shall he toward the center of the county, it may be made when a majority of the electors participating in the election .shall vote therefor.” It is clear from the provision in the Constitution that the county seat shall not be generally removed unless two-thirds of the electors of the county authorize such removal. The exception to this is in- a case where the removal shall be toward the center of the county, and then such removal may be authorized by the vote of the majority of the electors participating in the election on the question. Under the constitutional provision, it is clear that the board of supervisors, or any other tribunal, has no power to make any order of removal of a county seat, except toward the center of the county, until authority is given by the affirmative vote of two-thirds of the electors of the ■county. The power to make such removal is vested in the electors. ■ The legislature may, in its discretion, prescribe methods by which the question of removal shall be submitted to tbe vote of tbe qualified electors. If tbe constitutional majority did not vote for removal, the board bad no authority to make further order in tbe proceedings.

Tbe question of removal of a county seat, is fully discussed in tbe case of Simpson County v. Buckley, 85 Miss. 713, 38 South. 104, and tbe following is a quotation from that decision: “By section 259 of tbe Constitution, county sites throughout tbe state became fixed and established at tbe places where they were then located. There they must remain until removed in tbe manner and by following the method indicated by that section —not by legislative enactment, not by order or judgment of tbe board of supervisors, but by tbe affirmative vote of tbe electorate of tbe county concerned. If tbe county site is to be removed to a point more distant from tbe center of tbe county than where now located, it must and can only be. done when two-thirds of all qualified electors of the county shall evidence their desire for such removal by an affirmative vote therefor; or, if tbe removal is to a point nearer tbe center of tbe county, and therefore presumably more accessible to tbe greater portion of tbe inhabitants of tbe county, such removal will be authorized by a majority vote of those who participate in an election specially held for tbe purpose of submitting that question to the arbitrament of tbe ballot. In either case the fact, and tbe only fact, which can give tbe legislature, or tbe board of supervisors, or any other legislatively designated or selected tribunal, jurisdiction to pass any order in tbe premises, is tbe affirmance of tbe required constitutional majority. It is not tbe legislative enactment; it is not tbe expressed approval of tbe people voting therefor.”

It will be seen from tbe statement of facts in this case that removal was not carried by vote of two-thirds of tbe electors of Smith county on tbe day of tbe election, October 1, 1912. It will also be noted that there is no statement whatever to show that the proposed removal was toward the center of the county. Unless it is shown clearly that the rémoval proposed is to be toward the center of the county, or if the removal could be made under the decision of the election to any portion of the county, then the election on the question of removal or no removal, as provided in chapter 314, Laws of 1910, must be carried for removal on the vote of two-thirds of the qualified electors of the county. The trial court was correct in sustaining the demurrer filed by appellees.

Affirmed.

Affirmed.