Board of Highway Commissioners of Edinburg District v. Warren

• Decision Date: 12 January 1920
• Docket Number: 2849
• Court: Mississippi Supreme Court
• Parties: BOARD OF HIGHWAY COMMISSIONERS OF EDINBURG DISTRICT v. WARREN ET AL

83 So. 470

121 Miss. 295

BOARD OF HIGHWAY COMMISSIONERS OF EDINBURG DISTRICT v. WARREN ET AL

No. 2849

Supreme Court of Mississippi

January 12, 1920

October 1919

APPEAL from the chancery court of Leake county, HON. A. Y. WOODWARD Chancellor.

Suit between the Board of Highway Commissioners of Edinburg road district and E. B. Warren and others. From a judgment for the latter, the former appeals.

The facts are fully stated in the opinion of the court.

Decree affirmed.

J. B Harris, for appellant.

The questions presented by the record in this case are important ones. The sole question is, as to the power of the chancellor in the hearing of objections to the validation proceedings under the Act of September 2, 1917, chapter 29. In other words, is a judgment of a board of supervisors of the same binding and conclusive effect in a validation proceeding under said act, as it, would be in any other proceeding, in which it might be attacked.

Is the judgment of a board of supervisors in a matter over which it has jurisdiction subject to collateral attack, and to review by the chancellor in validation proceedings? Was it the purpose of the legislature to confer upon the chancellor, in validation proceedings, quasi-appellate jurisdiction, and the power to review and open up the judgment of a board of supervisors to the same extent that the same might be reviewed on appeal to the circuit court?

It is settled beyond any question in this court that the judgment of a board of supervisors in matters over which they have jurisdiction are conclusive and not subject to collateral attacks, that the remedy, if any, is by direct appeal to the circuit court as provided by the statute, and that remedy is exclusive, see: Wolford v. Williams, 110 Miss. 637; Johnson v. Board of Supervisors, 74 So. 321; Hinton v. Perry County, 84 Miss. 548. See generally, Dye v. Mayor, 119 Miss. 359 (collateral attack).

It was settled by this court in the case of Thomas v. Lee County, 53 So. 585, 95 Miss. 232, and in the case of Dean v. Desoto County, 82 So., that the filing of the petition required by the statute, by the qualified electors for the establishment of a road district, and the issuance of bonds, conferred upon the board of supervisors jurisdiction of the matter.

In the case at bar, a petition signed by twenty per cent. of the qualified electors of the Edinburg road district was filed with the board of supervisors, under the provisions of chapter 176 of the Acts of 1914 asking for the establishment of the Edinburg road district and for the issuance of bonds.

The board of supervisors in pursuance with the requirements of the act caused notice to be published as required by law setting forth the purpose for which the bonds were to be issued, and describing the road district for which they were to be issued and its purpose to issue bonds on a certain day therein named, unless a counter petition, as required by law, was filed, within the three weeks next preceding the day fixed by the notices on the board would be authorized to act.

It appears that a counter petition was filed, or what is purported to be a counter petition but upon canvassing the petition is was found to be irregular and illegal in several respects, in addition to its not being filed in time, and the board of supervisors proposed to reject petition, but entered an order allowing the petition to to be withdrawn and giving the counter petitioners thirty days within which to file a proper petition. See page 27 of the record. The record, however, recites that after this order was made, the board of supervisors were advised that they had no authority to extend the time for filing the counter petition, no legal petition being on file at the time required by law. See page 36 of the record, and the board then proceeded to order an issuance of bonds in the sum of twenty thousand dollars, as recommended by the road commissioners, and the said bonds were issued and advertised for sale and bid in by the Merchant's Bank & Trust Company of Jackson, Mississippi. It does not appear, however, that the bonds have been delivered. The proceedings in reference to the issuance of the bonds were instituted in April, 1917, an order authorizing the bonds was made in July, 1917, and the bonds were offered for sale and bid in, as above stated, on December 3, 1917.

Validation proceedings were instituted under the provisions of the Act of 1917, the matter having been submitted for validation to Mr. Thomas M. Owen, who was then state's bond attorney, who rendered an opinion May 15, 1918, that the bonds were legal, valid and binding. See pages 12 and 13 of the record.

The matter was set for hearing before the chancellor for June 28, 1918, and on that day three taxpayers filed objections to the bonds in general terms. See page 3 of the record. Mr. Owen, state's bonds attorney, made a motion to strike out these objections from the file, upon the ground set forth in a motion which appears on page 4 of the transcript. The objectors afterwards on July 11, 1918, filed specific objections, see pages 5 to 9 of the record, at which time the chancellor proceeded to hear their objections and take testimony.

The court will see from the reading, the objections, and the testimony, that the whole contention was an attack upon the judgment rendered by the board of supervisors; that it erred in its judgment as to its power to extend the time for the filing of a counter petition. There is nothing else in the controversy. There is a charge of fraud in the objections, but this is general and not sustained by the record.

I insist that whether the board of supervisors were right or wrong in its conclusion, the matter could not be inquired into in the validation proceedings, that the remedy for the objectors was by an appeal to the circuit court, and that was the exclusive remedy. The transcript shows, page 49 of the record, that no appeal was taken from the judgment of the board of supervisors establishing a road district and authorizing the issuance of bonds, and that no suit or action of any kind is pending against the establishment of the road district or the issuance of the bonds, and that no action or suit was threatened.

The only clause in the Act of 1917 in reference to the functions of the chancellor is contained in the next to the last paragraph of section 2 and is in these words: "And on the hearing, the chancellor may hear additional evidence and inquire into the validity of the bonds proposed to be issued and enter a decree in accordance with his findings." This language is somewhat vague, and the question now is, is that board enough and sufficiently clear as to confer upon the chancellor the power to open up the whole proceeding and set aside the judgment of the board of supervisors, if in his opinion he should believe that the board of supervisors erred in the conclusion which they have reached, the question not being a jurisdictional one or one of fraud or of any excess of power in violation of any positive statute.

In other words, does the language, hear additional evidence and inquire into the validity of the bonds to be issued," carry with it, or embrace and confer upon the chancellor the power to set aside the judgment of the board of supervisors, otherwise conclusive and not subject to collateral attack, and try the whole question de novo. Have judgments of boards of supervisors no conclusive effect in validating proceedings under the Act of 1917? The circuit court has jurisdiction on appeal to try a matter arising before the board of supervisors de novo and enter such judgment as the board of supervisors should have entered. I submit that the language quoted from the Acts of 1917, falls very far short of conferring any such power upon the chancellor. There are many matters affecting the validity of bond issues which could be dealt with by the chancellor which could not be cured by any judgment of the board of supervisors, as for instance questions going to the jurisdiction. If proceeding under the Acts of 1914, chapter 176, the board of supervisors should have undertaken to issue the bonds without a petition on the part of the electors, this would be a jurisdictional matter which the chancellor could consider. If the notice required by the statute was not given and these matters appear upon the record, as they must affirmatively appear, the matter could be considered by the chancellor. If the maturity of the bonds was not as prescribed by the act, it is a matter which could be passed upon by the chancellor because these being positive statutory requirements, not confided in any way to the judgment or discretion of the board are all matters which could be inquired into by the chancellor. If in case of an election there was actual fraud vitiating the election, or the record shows that no election was held where an election is required, these matters being positive statutory requirements could not be dispensed with by the board of supervisors, and any issue of bonds in violation thereof would be invalid. This matter, however, of the sufficiency of the petition and counter petition is a matter for the board of supervisors to determine, and as to those matters its judgment is conclusive and can only be inquired into by direct appeal to the circuit court and would not be subject to collateral attack.

At all events it is highly important that the court should pass upon these questions and determine now whether the power has been conferred upon the chancellor to revise a judgment of a board of supervisors, in matters within its jurisdiction, however erroneous that judgment may be.

It seems to be settled that statutes like the one in question conferring special powers upon a court must be strictly...