Board of Sup'rs of Marshall County v. Brown

• Decision Date: 28 February 1927
• Docket Number: 26313
• Citation: 111 So. 831,146 Miss. 56
• Parties: BOARD OF SUP'RS OF MARSHALL COUNTY v. BROWN et al. [*]
• Court: Mississippi Supreme Court

111 So. 831

146 Miss. 56

BOARD OF SUP'RS OF MARSHALL COUNTY v. BROWN et al. ^[*]

No. 26313

Supreme Court of Mississippi

February 28, 1927

Division B

Suggestion of Error Overruled March 28, 1927.

APPEAL from circuit court of Marshall county, HON. T. E. PEGRAM Judge.

Proceeding for the establishment of the Waterford Consolidated School District of Marshall county. Creation of the district was confirmed by the board of supervisors of Marshall county and, from an order authorizing issuance of bonds pursuant to a special election, R. E. Brown and others appeal to the circuit court, which held the establishment of the School District void, and the board of supervisors appeals. Affirmed.

Judgment affirmed.

Smith & Smith, for appellant.

I. Constitutionality of the legislative scheme on which is based the entire consolidated school district system, with reference to whether or not the same violates either federal or state constitutions:

Judge Pegram predicating his holding of the unconstitutionality of the consolidated school system upon Browning v. Hooper, 70 L.Ed. 153, commonly known as the Archer county case, held that the Mississippi law violated the Fourteenth Amendment to the Constitution of the United States in that it took the property of appellees without due process of law. The Texas statute construed by the court in the Archer county case and our own statutes are not analogous and the schemes are not kindred either in spirit or plan or purpose. Chapter 283, section 99, Laws of 1924; and Texas statute, Revised Statutes 1911, articles 626-41, as revised in articles 736-52 in 1925.

In Mississippi the creation of the district is exclusively in the hands of those interested in the schools; to-wit, the county board of education and the patrons of the schools. Sections 99-104. A consolidated school district is simply a common school district where two or more existing schools have been consolidated into one single school district. Trustees of Walton School v. Covington County Board of Sup'rs, 115 Miss. 117, 75 So. 833.

The powers conferred by the statute upon the county board of education to organize consolidated school districts are no judicial powers in the sense that due process is required for those thereby affected. Such proceedings are administrative in character. King et al. v. Board of Sup'rs of Pontotoc County, 97 So. 811.

If persons have the benefit of a full and fair trial in the several courts of their own state, where their rights are measured by general provisions of law applicable to all in like conditions and as a result are deprived of their property, it cannot be said that such deprivation is without due process of law. Marchant v. Penn. R. R. Co., 153 U.S. 380, 38 L.Ed. 751; Hodge v. Muscatine Co., 196 U.S. 276, 49 L.Ed. 477.

Therefore, the constitutionality of this law has been approved by the supreme court of Mississippi, the United States circuit court of appeals and the supreme court of the United States.

Additional authorities are: King v. Board of Supervisors, 133 Miss. 494, 97 So. 811; Bufkin v. Mitchell, 106 Miss. 253, 63 So. 458; Walton School v. Covington County, 115 Miss. 117, 75 So. 833; Dye et al. v. Town of Sardis, 119 Miss. 359, 80 So. 761; Carrollton v. North Carrollton, 109 Miss. 494, 69 So. 179.

II. The court held that the act of locating the school house was jurisdictional and that unless it was done synchronously and simultaneously with the establishment and bounding of the district itself, everything else was void. Courts will not so construe a statute, if any other construction is reasonable or possible, as to cause an act of the legislature to seem either unreasonable, impracticable, absured or futile. McElmore v. State, 33 So. 225.

In order to effectuate the evident purpose of the statute, the courts will, if necessary, depart from a literal interpretation, and give it a broader or more restricted meaning than its mere words impart. State Board of Education v. M. & O. R. R. Co., 72 Miss. 236, 16 So. 489.

An unjust or unwise purpose in any statute will not be imputed to the legislature which enacted it, when any other reasonable construction will avoid such an imputation. Pattison v. Clinghan, 93 Miss. 310, 47 So. 503. On the question of jurisdiction, see Daniels v. Tearney, 102 U.S. 418; Ex parte Bennett, 44 Cal. 88; Sherer v. Superior Court, 98 Cal. 653.

The reason for not locating the school building itself, at the time the district was established and its boundaries made, appeared excellent to the board of education and formed part of its judgment, and certainly formed no part of its prerequisite jurisdiction. To hold that the selection of the school site must be made at the same instant the district is created and bounded is as unreasonable as it would have been for the legislature to require that the election be held in the consolidated school district house before same could be built, owing to lack of funds because the bonds had not yet been authorized or sold. As our court said in Keetan v. Clark County, 117 Miss. 72, 77 So. 906: "The issuance of bonds is one thing, and the spending of the money derived therefrom is another and different matter altogether."

Lester G. Fant, for appellees.

I. A careful examination of the cases in our supreme court on consolidated school district, fails to show any decisions that holds that the location of the site of the school building is not a jurisdictional fact that must appear affirmatively in the minutes of the board of supervisors before any consolidated school district can exist. See Keeton v. Board of Sup'rs, 117 Miss. 72; Boutwell et al. v. Board of Sup'rs, 128 Miss. 337; Monroe County v. Minga et al., 127 Miss. 702; King et al. v. Board of Sup'rs, 133 Miss. 494 at 500.

The location of this school must be affirmatively shown from the record before there can be a valid consolidated school district. Purvis v. Robertson, 110 Miss. 64.

II. It is true that our supreme court has held that to this action of the school board a person is not entitled to any notice under the Fourteenth Amendment of the Constitution of the United States, but in so holding I do not think it was called to the attention of the court that unless notices were given at some time during the hearing in regard to consolidated school districts, that we would be in the position of taking the property of a person who lived in a consolidated school district from him without due process of law. Browning v. Hooper (1926), 70 L.Ed. 153, has never been construed, so far as I know, by the Mississippi supreme court.

If the supreme court of the United States had had in mind the local improvement at Waterford in the so-called Waterford consolidated school district, it could not have spoken more directly to the point than it did.

It would appear that the circuit court was certainly right in holding the scheme, as carried out in this effort to create the Waterford consolidated school district, as repugnant to the Fourteenth Amendment of the Constitution of the United States.

Argued orally by L. A. Smith, for appellant, and Lester G. Fant, for appellees.

OPINION

HOLDEN, P. J.

This suit involves the validity of the establishment of the Waterford consolidated school district of Marshall county. The circuit court, upon appeal from the board of supervisors, held that the creation and organization of this consolidated school district was void, because the county board of education had failed to comply with the requirements of the statute (chapter 14 of chapter 283, Laws of 1924), in that the board failed to "designate the location of the schoolhouse." The board of supervisors appeal from that judgment.

A majority of the public school patrons near Waterford in Marshall county petitioned the county board of education to establish the Waterford consolidated school district; the petitioners being residents of the proposed consolidated school district. The county board of education established the district, defined its boundary lines, and also named the sections incorporated within said district, as provided by the statute, but the board failed to "designate the location of the schoolhouse." The board expressly pretermitted the location of the schoolhouse for further consideration. However, the location of said schoolhouse has not yet been designated, so far as the record shows, as required under the law.

The establishment of the district was objected to, but there was no counter petition against the formation of the district nor did the objectors appeal from the action of the school board to the board of supervisors, and, we may as well say, at this juncture, that no inquiry can be had as to mere irregularities in the...