Amite County School Board v. Reese

• Decision Date: 10 May 1926
• Docket Number: 25603
• Citation: 108 So. 439,143 Miss. 880
• Court: Mississippi Supreme Court
• Parties: AMITE COUNTY SCHOOL BOARD v. REESE et al. [*]

108 So. 439

143 Miss. 880

AMITE COUNTY SCHOOL BOARD v. REESE et al. ^[*]

No. 25603

Supreme Court of Mississippi

May 10, 1926

Division B

Suggestion of Error Overruled May 24, 1926.

APPEAL from chancery court of Amite county, HON. R. W. CUTRER Chancellor.

Bill by E. M. Reese and others against the Amite county school board. Decree for plaintiffs, and defendant appeals. Reversed and remanded.

Reversed and remanded.

D. C. Bramlette, for appellant.

1. This order enjoined shows on its face conclusively that the county school board, appellants, should have passed and adopted same. See section 108, chapter 283, Laws of 1924. The county school board, clothed with the power of discretion and given the right under the statute to use its best judgment in matters of this kind, had ample authority to pass this order. It would be an unrighteous rule that would take away this power given appellants under the law. Even had the Williams Winans School been created and organized as the law required still appellants would have had the unquestioned right under the law to have changed its boundary, as this record shows the alleged William Winans School never operated a single day, never exercised the privileges and franchises of a consolidated school for a single moment.

II. Under chapter 287, Laws of 1924, the Bethany consolidated school district cannot be attacked and its existence challenged in this proceeding. The record in this case shows that this curative statute takes care of and perfects any technical defects that might have existed regarding the Bethany school district. It had been operating and exercising the privileges and franchises of a consolidated school down to the present date.

The evidence given by the superintendent of education shows that this consolidated school district is to-day legal and valid under the curative act of our state; that it has exercised the privileges, rights and franchises of a legal district for more than nine years and has never been in litigation; that trustees were elected; that pupils were transported; that it operated seven months in a year; that it contained more than ten square miles; that it levied taxes; and that taxes were paid therein for more than nine years. In the face of this evidence and in the face of the record, these appellees cry that this is not a legal district.

They go behind the solemn order of the school board creating the Bethany school nine years ago and attempt in this collateral attack, in the face of this curative act, to destroy a legal school district simply to save and advance their own selfish ends and possessions without giving to the Bethany people the right, that they are entitled to under the law, to raise their voice by a petition as the law requires, either for or against it. Section 13, chapter 283, Laws of 1924.

Sections 41, 42, and 43, chapter 283, Laws of 1924, taken in conjunction with section 108, show that it was and is the unquestioned right of the county school board, these appellants, in their sole discretion, to pass and adopt this order enjoined, which shows clearly and conclusively on its face that no harm or no damage under the law could be done any person by its adoption.

III. Appellants having the discretionary right under these statutes to pass this order, the courts will not interfere in any manner--not even by injunction, that dangerous weapon that bends even the discretionary will of a free people. 24 R. C. L., p. 575, sec. 24.

IV. This bill presents a collateral attack on the creation of the Bethany school district and cannot be entertained. Dye v. Mayor of Sardis, 119 Miss. 359; Liddell v. Noxapater, 129 Miss. 513; Hinton v. Perry County, 84 Miss. 536; and Barron v. Purdy Road District, 131 Miss. 778.

R. S. Stewart and C. T. Gordon, for appellees.

The first question in this case is whether there ever was a Bethany consolidated school district created, so as to have a legal status; and if so, what were its boundaries and did the order creating the Williams Winans Institute consolidated district embrace any of that territory?

It clearly appears from the order copied from the minutes of the Amite county school board as entered July 15, 1917, that there was no description of this territory given. It appears from the testimony of J. N. Steele, Superintendent of Education of Amite county, Mississippi, one of the school board and a defendant, that there had never been any description of the Caston school district, the Bethany school district or of the consolidated Bethany school district. This school territory was neither bounded by roads, rivers, farms, metes or bounds, or by sections. There was nothing to show where it was located. Our statutes provide that school districts must be defined. Section 4514, Code of 1906 (section 7334, Hemingway's Code); section 4512, Code of 1906 (section 7332, Hemingway's Code).

The court has held in the following cases that the district must be formed by a description of the territory. North Carrollton v. Town of Carrollton, 113 Miss. 1; Keeton v. Board of Supervisors, 117 Miss. 72; King et al. v. Board of Supervisors, 133 Miss. 494, 97 So. 811. In like manner it has been held that a road district must be properly described. Board of Supervisors of Desoto County v. Dean, 120 Miss. 334.

This court has uniformly held that a board of supervisors or other board required by law to keep minutes of its proceedings can speak only through its minutes. See Byrd v. State, 1 How. 163; Root v. McFerrin, 37 Miss. 17; Crump v. Board of Supervisors, 52 Miss. 107; Howe v. State, 53 Miss. 57; Bridges & Hill v. Board of Supervisors, 58 Miss. 817; Bolivar County v. Coleman, 71 Miss. 832; Dixon v. Greene County, 76 Miss. 794; Mullins et al. v. Shaw, et al., 77 Miss. 900; Hinton v. Perry County, 84 Miss. 536; Miss. Saw Mill Co. v. Douglas, 107 Miss. 678; Northern Drainage Dist. v. Bolivar County, 111 Miss. 250; Lamar County v. Tally & Mason, 116 Miss. 588; Smith County v. Mangum, 127 Miss. 192; Lincoln County v. Wilson, 125 Miss. 837; King et al. v. Board of Supervisors, 133 Miss. 494. The school board is required to keep minutes and its acts, likewise, can be proved only from its minutes.

The appellants contend that under section 108, chapter 283, Laws of 1924, the boundaries of the Bethany consolidated school could not be changed. This might be true if there had ever been any boundaries fixed for the school district. Going to the minutes of the county school board that created the school, the boundaries can not be found.

The appellants claim that under chapter 287, Laws of 1924, the Bethany consolidated school district could not be attacked as this curative statute perfected the district and cured any defects in its creation. In answer to this, we say that by general statute, the legislature cannot create that which never was in being. This act of the legislature could not supply that which was essential to show where the school district lay and what lands it embraced.

This action is not a collateral attack on the creation of the Bethany district. This bill was filed and the injunction was sought and obtained to prevent the school board from undoing what it had already done, adjudged and ordered on April 27, and this was no attack on the Bethany consolidated school district, but was to protect the rights of the people of the William Winans Institute consolidated school district under the order creating it.

The court has held that the board of supervisors after adjournment could not at a later meeting reverse itself. Keenan v. Harkins, 82 Miss. 709. The court also held in Authur v. Adams & Speed, 49 Miss. 404, that the board could not at a subsequent meeting reverse its judgment entered at a former meeting. See, also, Board of Police v. Grant, 9 S. & M. 77.

We contend that the Amite county school board could not reverse itself and set aside its order made on April 27, 1925, in final adjudication of the matter, at a subsequent meeting in June, 1925. It had done all that was to be done under the petitions, it could go no further.

The appellants further contend that the Bethany consolidated school district could not be changed and was legal because of the addition of territory thereto in 1918 and in 1922. We contend that there was nothing existing to which the addition might have been made. We further contend that there was no legal petition before the school board to change the boundaries of the Forest consolidated school district out of which the territory was taken to make the addition in 1922.

D. C. Bramlette, in reply, for appellant.

As supplemental to the brief filed on behalf of the appellants we direct attention to Board of Supervisors of Wilkinson County v. John L. Ash et als. (1926), 107 So. , wherein was involved the legality of the William Winans Institute consolidated school and specifically that part thereof in Wilkinson county.

We also direct the court's attention to Morgan v. Wood, 106 So. 435, wherein the legality of the Glenwild consolidated school district was upheld. Those sponsoring the William Winans Institute consolidated school district attempted to employ the same methods in taking Glenwild territory in Wilkinson county as they are employing in attempting to take Bethany territory in Amite county in utter disregard of the method or mode prescribed by law. See, also Donald v. Stauffer, 106 So. 357, wherein the court held: "Though trustees of a school district in discharging one teacher and employing another are acting illegally, yet they are acting within the scope of their duties and so cannot be enjoined at suit of a...