DISSENTING OPINION. The board of supervisors had the right and power to pass upon and adjudicate the sufficiency of the petition at its February, 1943, meeting. Chapter 224, Laws 1942. The law makes no provision for notice to be given of the filing of the petition or of the time of hearing the same. However, to dispel any suspicion of unfairness, it is pertinent to note the course of events in this proceeding.
The petitions were filed September 29 and October 7, 1942, both, taken together, constituting one petition. An attorney for two beer dealers later appeared to contest the petition. The supervisors continued the hearing to the January 1943, meeting, at which meeting it was announced the contest would be heard at the February meeting.
Said contestants and their attorney appeared at the February meeting and resisted the petition; proof was taken and the board, on that proof, adjudicated that the petition contained the required twenty percent of the qualified voters of the county and ordered the election. No appeal was taken by those contestants and they disappear from this record.
Notice of the election was duly published, the first notice appearing February 8th, and the election was duly held March 16th, at a cost of $1,305. On March 20th, the election commissioners made their report of the election, *Page 457 showing 1,982 votes for and 3,311 against the sale of wine and beer in Lauderdale County.
On April 5th thereafter, the present contestants, also beer dealers, first made their appearance in this proceeding, making the contention then that the petition for the election did not contain twenty percent of the qualified voters of the county. The board declined to again hear evidence on that question and appellants appealed to the circuit court, which affirmed the supervisors; hence, the former appeal to this Court. The appeal from the order of the supervisors adjudicating the sufficiency of the petition, it will be noted, was not taken within ten days after the date of such order, as the statute requires as to final orders, and the questions presented on the former appeal here were (1) whether the ballot used at the election was legal and (2) whether the appeal from the February order adjudicating the sufficiency of the petition was timely taken. The second question depended upon whether said February order was final or interlocutory. On the final hearing of the case here, the Court held the ballot was legal and that the appeal was timely taken because the February order was interlocutory and that the final order in this matter was that putting the result of the election into force. 16 So.2d 378.
Therefore, it is settled that the order adjudicating the sufficiency of the petition was valid and interlocutory. If that is true, then it was within the sound discretion of the board of supervisors, sitting as a court, whether it would set aside such order and have a rehearing. Hunter v. Carmichael's Adm'r, 12 Smedes M. 726, 20 Miss. 726; 31 Am. Jur. 267, Section 717. Moreover, the original and present contestants are of the same class (beer dealers), have the same interest in the petition for this election, and, therefore, the original contestants, there being no evidence that they did not act in good faith in contesting the petition, should be held to have represented all other persons of the same class. *Page 458
To hold that each person who desires to contest the matter may at any time from the filing of the petition to the final order putting the result of the election into effect appear as a matter of right and contest the question, and that the board of supervisors has no right or discretion as to whether it will set aside the former order, or orders, and permit a rehearing, would, from a practical and economical standpoint, create an intolerable situation. In other words, as soon as one contestant gets through, another can appear and demand a rehearing. Each well-wisher contestant can await the outcome of a prior contest, or contests, and then institute one of his own, and so on without end. Under that rule, the entire time of the supervisors from the filing of the petition to the final order putting the election into effect in this case could have been demanded and consumed by different contestants of the petition, and, indeed, with that absolute right existing in contestants, it is not seen how an election could ever be held. The statute contemplates only one hearing on that question. I do not think the remand of the case by this Court was a command to the supervisors to set aside its former order and rehear proof on the petition. The remand was for the proper procedure whatever that might be.
Smith, C.J., concurs in this opinion.