Board of Sup'rs of Lowndes County v. Ottley

• Citation: 146 Miss. 118,112 So. 466
• Decision Date: 01 November 1926
• Docket Number: 25889
• Parties: BOARD OF SUP'RS OF LOWNDES COUNTY v. OTTLEY et al. [*]
• Court: United States State Supreme Court of Mississippi

112 So. 466

146 Miss. 118

BOARD OF SUP'RS OF LOWNDES COUNTY v. OTTLEY et al. ^[*]

No. 25889

Supreme Court of Mississippi

November 1, 1926

Division A

Suggestion of Error Overruled May 9, 1927.

APPEAL from circuit court of Lowndes county HON. J. I. STURDIVANT Judge.

On appeal by W. H. Ottley and others, the circuit court held void an issuance of school bonds under orders of the board of supervisors of Lowndes county, and the board appeals. Affirmed.

Affirmed. Suggestion of error overruled.

J. F. Frierson and Leftwich & Tubb, for appellant.

I. Was it necessary for the board of supervisors to have on file proof of publication of the notice of election? We submit that the proof of publication of the notice of election is only another means of ascertaining by the board the fact that the election notice had been given as required by the law. This proof might have been made by the election commissioners themselves, who were present, they could have testified and, probably did testify, before the board that they had given the required notice. Furthermore, in all probability, the newspapers were there containing the published notice.

We submit further that it was not necessary to have this notice on file at that time and it is not necessary for the board to show in any of its orders that the notice was actually given, but if there appears in the record the proof of publication of the notice, which is usually made by the newspaper manager in the form of an affidavit with copy of the printed notice attached, then this is sufficient. Section 1640, Hemingway's Code (section 1980, Code of 1906).

There is not a word to show that any voter or any other person interested in the district was misled or in any manner injured by the fact that this proof of publication was not on file with the board when the report of the election commissioners was made and when the board ordered the bonds issued. The election had been held, the notice had been given, and it will be observed that this notice was published four consecutive weeks, giving the twenty-one days' notice, immediately next preceding the election.

Every minute detail has been substantially complied with in this proceeding. Mere irregularities are not sufficient to invalidate the proceedings and the bonds issued and sold thereunder: Johnson v. Board of Sup'rs of Yazoo County, 113 Miss. 435; Lincoln County v. Wilson, 125 Miss. 387; Liddell v. Noxapater, 129 Miss. 513; Welborn v. Board of Supervisors of Jones County, 130 Miss. 321; Carter v. Board of Supervisors of Chickasaw County, 131 Miss. 127.

Loving & Loving, for appellees.

The notice to be given for an election at the time of this proceeding could be given only under section 183, chapter 283, Laws of 1924, and yet this order required notice to be given under chapter 209, Laws of 1918. We submit that the proceeding in reference to calling the election is void, and was called under the wrong act.

It will be observed that in the report of the election commissioners no mention is made of any notice having been given by publication or otherwise. Referring to the order issuing the bonds, the order is based on the report of the election commissioners and in this order no mention is made of any publication of notice of an election.

In the matter of an estate, a claim is not barred until proof of publication of notice to creditors has been filed. Boutwell v. Farmers & Traders Bank, 118 Miss. 50, 79 So. 1. It is true that the statute expressly requires that the proof must be filed; so does the general statute of publication. Section 3920, Code of 1906 (section 2927, Hemingway's Code) as amended by chapter 151, Laws of 1924. In any proceedings the proof of publication must be on file, or the judgment is void. Section 139, Hemingway's Code does not require proof of publication to be on file, yet this court held that it must be on file in Oliver v. Baird, 90 Miss. 718, 44 So. 35. We have been unable to find any authority to the contrary, but all examined hold that the proof of publication must be on file at the time the judgment is rendered, or it is void.

The notice of an election by publication is "the method provided by law for getting electors into court so to speak. It is the manner designated by the statute to get jurisdiction of the qualified electors of the district." Monroe County, for the use of Splurge Consolidated School District, v. Minga et al., 127 Miss. 702, 90 So. 443. And the proof thereof must be of record. The mere fact that the record shows conclusively that a majority of the qualified electors voted for the bond issue adds nothing to the validity of the issue, if the law has not been complied with. Barrett v. Cedar Hill Consolidated School District, 123 Miss. 370, 85 So. 125.

Boards of supervisors, in matters of this kind, are courts of limited jurisdiction. "In cases of this character the jurisdictional facts must be shown on the face of the record." Bolivar County v. Coleman et al., 71 Miss. 832, 15 So. 107; Henry et al. v. Board of Supervisors of Sunflower County, 111 Miss. 434, 71 So. 742; Lester v. Miller, 76 Miss. 309, 24 So. 193.

This cause should be affirmed.

J. F. Frierson and Leftwich & Tubb, in reply, for appellant.

I. Counsel has raised the question that the order does not adjudicate as a matter of fact that this bond issue will not create a debt which added to the outstanding bonded or floating debt of the district will exceed fifteen per centum of the taxable property of the district. It is true that the board here has not used the words "added to the outstanding bonded or floating debt," but it did use the language that the bond issue would not create a debt exceeding five per centum, when as a matter of fact the statute permits a debt of fifteen per centum of the assessed value of the taxable property. In this case the Caledonia consolidated school district could issue bonds up to one hundred six thousand dollars and still be within the statute according to the findings of the board. It is evident from the language used by the board that this bond issue creates a debt of only twenty-five thousand dollars on the district and is within five per centum of the total assessed value of the property in the district; and since five per centum of the assessed value is more than thirty-five thousand dollars, the board evidently was intending to cover this phase of the case in that order. Besides, it would be an easy matter for the clerk of the board to execute a certificate and file it as a part of the record that there is no outstanding bonded or floating debt of the district other than the bonds in question. This, in fact, is the usual and customary practice in bond issues we have drawn time and time again in our own experience.

II. The publication of the election notice. The statute does not require the election commissioners to make any other report than a certificate of the result of the election. It does not provide that the election commissioners shall bring in the ballot boxes, together with the ballots used in the election, the certificate of the election judges, the list of voters and everything of that sort, because the law presumes that the election commissioners had canvassed the returns made to them by the officers holding the election and that they shall then by a certificate filed witch the board state the result, as was done in this case. The report of the commissioners here is more complete than the law requires. The law does not provide that the election commissioners shall show in their certificate or report whether or not the notice required by law was given. This is another matter of proof just like any other essential fact, brought into the record by proof. The statutes in our state provide that proof of publication of a notice filed in any court shall be sufficient evidence that the notice was thus published but this is not the only evidence upon which the court may act unless the statute in that particular matter specifically requires the proof to be filed.

We submit that none of the cases cited by counsel are authority to sustain their contentions here that this board could not proceed at the July and August meeting until this proof of publication has been filed and made a part of the record. It is a part of the record now, it was made a part of the record at the August meeting, 1925, and it thus completed the record.

Argued orally by Geo. J. Leftwich, for appellant.

MCGOWEN, J. COOK, J.

OPINION

MCGOWEN, J.

In June, 1925, a petition was addressed to the board of supervisors of Lowndes county, asking for the issuance and sale of bonds of the Caledonia consolidated school district in the sum of twenty-five thousand dollars the purpose of which was to erect and equip a school building in Caledonia in said county and district. At the June meeting, 1925, the board adjudicated that the petition was signed by a majority of the qualified electors of the Caledonia consolidated school district, that said district contained not less than sixteen square miles, and that the assessed valuation of the property therein was seven hundred nine thousand two hundred thirty dollars. The order defines and describes the territory, and the governmental subdivisions of the land embraced within the district, and that the bonds, when issued, did not exceed five per centum of the assessed value of the property of the district, and sustained and granted the petition. The order further provided that it was the purpose and intention of the board at its July, 1925, meeting to issue the bonds of the district in the said sum of twenty-five thousand dollars, and to order that an election be held on July 10, 1925, at the schoolhouse of such district, at which election shall be submitted the...