Frederic v. Bd. of Sup'rs, Jackson Co. , 197 Miss. 293 ( 1944 )

ON SUGGESTION OF ERROR. Counsel for the appellee suggests that we erred in holding that this zoning order appears, from the evidence, to be an unreasonable exercise of legislative power. In support of this contention he says that the bill of exceptions signed by the president of the board of supervisors does not disclose the evidence on which the board acted in adopting the order, and, therefore, we must presume that it had before it evidence which justified its adoption; that the facts by which the reasonableness of this order must be tested was evidently taken by the court from the protest filed by the appellant with the board of supervisors, which, he says, according to Adcock v. Board of Supervisors, 191 Miss. 379, 2 So.2d 556, should not have been done. These facts appear from this protest and from a map of the territory involved, referred to in one of the orders of the board of supervisors made in the course of this proceeding, and the briefs of counsel on the original hearing herein proceed on the theory that the facts so appearing were accepted and acted on as true by the board of supervisors.

The bill of exceptions recites what purports to be everything that occurred before the board of supervisors while it was considering the adoption of this order. While it makes no mention of what evidence, if any, that was then considered, it does set forth that the appellants's protest was read to the board. The brief of counsel for the appellant on the original hearing herein sets forth the facts on which the reasonableness vel non of this zoning ordinance rests practically as disclosed by the appellant's protest before the board of supervisors and the map above mentioned. The brief of counsel for the appellee did not set forth the evidence on which this order rested, did not challenge the statement of facts of counsel for the appellant, and made no claim that this protest of the appellant and this map could not be considered as setting forth the facts on which this zoning ordinance must rest. This being true, as this Court has many times held, he is in no position to raise that question now. Eady v. State, 153 Miss. 696, 122 So. 199, and the cases therein set forth; State v. Tann, 172 Miss. 162, 167, 158 So. 777, 159 So. 539; Mississippi State Board of Health v. Johnson (Miss.), 19 So.2d 827; Owen v. State (Miss.), 20 So.2d 95.

As set forth in paragraph 2 of rule 7 of this Court, "those briefs are of most assistance to the Court in which there precedes the argument of counsel; first a concise statement of the case so far as essential to an understand-of the questions presented for determination, . . . ." When counsel for the appellant complies with this request and counsel for the appellee neither challenges his statement of facts of the case nor sets forth in his brief a different statement of the facts, he has no just cause of complaint if this Court accepts the appellant's statement of facts as being true.

Overruled.