Board of Sup'rs of Prentiss County for Booneville And Burton Good Roads Dist. v. Holley

• Decision Date: 11 January 1926
• Docket Number: 25426
• Citation: 106 So. 644,141 Miss. 432
• Parties: BOARD OF SUP'RS OF PRENTISS COUNTY FOR BOONEVILLE AND BURTON GOOD ROADS DIST. v. HOLLEY et al. [*]
• Court: Mississippi Supreme Court

106 So. 644

141 Miss. 432

BOARD OF SUP'RS OF PRENTISS COUNTY FOR BOONEVILLE AND BURTON GOOD ROADS DIST. v. HOLLEY et al. ^[*]

No. 25426

Supreme Court of Mississippi

January 11, 1926

Division B

(Division B.).

1. HIGHWAYS. No inquiry, in proceeding to validate bonds, into reasonableness of leaving land out of district.

Reasonableness of action of board of supervisors in leaving out a section of land in organizing road district cannot be inquired into in proceeding under Laws 1917, chapter 28 (Hemingway's Code Supp. 1921, sections 3812a-3812e), to validate bonds of district, under the provision that at the hearing of objections additional evidence touching the validity of the bonds may be admitted.

2 HIGHWAYS. Majority of electors not shown to have voted against bond issue.

Bonds of road district are not shown invalid on theory of not being voted by majority of qualified electors, though board of supervisors' order for election recited there were one hundred and eighty qualified electors, while return of election commission showed one hundred and forty-nine votes for and one hundred and twelve votes against issue; the finding of one hundred and eighty qualified electors being an adjudication, for purpose alone of determining whether enough had signed petition for issuance of bonds, and election being some time later.

3. HIGHWAYS. Later statute governs denomination of bonds. Laws 1920, chapter 277, section 4 (Hemingway's Code Supp 1921, section 7161), fixing denomination of bonds of a road district, is controlled by chapter 207, section 3 (section 6662h), a later act enacted at the same session, giving the issuing board power to fix their denominations.

HON ALLEN Cox, Chancellor.

APPEAL from chancery court of Prentiss county, HON. ALLEN COX Chancellor.

Proceeding by the board of supervisors of Prentiss county for Booneville and Burton Good Roads District to validate bonds of the district, opposed by Emmet Holley and others. From an adverse decree, the board appeals. Reversed and decree rendered.

Reversed and judgment here.

C. R. Lacy and Cunningham & Berry, for appellants.

The chancellor found that none of the objections offered were valid except one, and that had reference to the leaving out of section 32, township 5, range 9, which was bounded on three sides by the territory embraced in this separate road district. The chancellor's finding was based, as he said, solely on public policy. He specifically held that there was no fraud, no oppression and that there was no damage to the people inside section 32 on account of its omission, and none to the people inside of the district and outside of section 32. The chancellor based his opinion purely on an erroneous idea of the meaning of the common term gerrymandering, and he had altogether an erroneous view of what he was holding. The term gerrymandering carries with it the unsavory slime of trickery, oppression and fraud. But the judge has exculpated the appellant thoroughly from any of the elements going to make up an instance of gerrymanding.

The proof shows that there are not any natural barriers, such as mountains or watercourses, between section 32 and the other portion of this separate road district, and, in fact it was left out accidentally in preparing the petition. But when it came up before the board of supervisors, they considered it. They are made the judges, by statute, of the propriety of the organizing of such a civil district, and their judgment was favorable to the district, as presented in the petition, and it was so adjudicated by their findings. The mere shape of the district could not be jurisdictional; and, hence, could not be attacked collaterally. No appeal was taken from the order of the board of supervisors creating the district. Hence, the chancellor erred in overruling it on collateral attack, or at all. This is clearly held in the case of Liddell v. Noxupater, 92 So. 631, and cases cited.

The board of supervisors in forming this district with section 32 left out, considered it proper and so formed it. The people voting upon the bonds in this district saw proper to vote for it, and voted the indebtedness on the district with section 32 left out. This record is silent as to what the wants and conveniences of the people of section 32 are and, for all the chancellor could know from this record, the board of supervisors in forming the district and the people in voting the bonds wisely exercised their discretion. In fact, his findings upheld this idea.

It is simply beyond our power to grasp a legal or equitable foundation for the findings of the chancellor. It is true he plants his decision on the doctrine announced in State v. Whitford, 11 N.W. 424, but he overlooks that the courts only step in when there has been unsavory maneuvering in the creation of a civil district that results in unbearable fraud, oppression, injustice or inconvenience. All of this is affirmatively removed from this record by the very findings of the court.

This section can join this road district if it choosed to do so under section 8, chapter 277, Acts of 1920, in so far as the territory itself is concerned, and the board of supervisors has passed judgment in favor of the practicability of the district and the people have expressed themselves at the polls as being in favor of the same.

W. C. Sweat, for appellees.

The chancellor in his opinion held that the leaving out of section 32 was sufficient, under the circumstances, to invalidate the bonds. On this ground, he entered his decree, and in this holding he was eminently correct; but there are other grounds of objections which the chancellor held were not, in his opinion, well taken, which were equally fatal to the bond issue. One of these was that the board of supervisors, by its order entered on the petition, found as a fact after examining the registration books containing the names of the qualified electors, that there were one hundred and eighty qualified electors residing in the road district and the report of the election commissioners shows that one hundred and twelve persons voted against the bond issue, considerably more than one-half the number which the board had judicially determined were qualified.

Another objection which was fatal to the bond issue was that twenty-five thousand dollars of this twenty-six thousand dollars in bonds was issued in denominations of one thousand dollars, when chapter 277 Acts of 1920, the statute governing this bond issue, said that the bonds shall be issued in sums of one hundred dollars to five hundred dollars each.

An inspection of the map of the road district, which appears in the record shows, as above stated that section 32, township 5, range 9, is entirely left out of the proposed road district, that it is surrounded on three sides by this proposed road district, and on the other side by a different road district. It is also shown by this map that the present road leading from Booneville to Burton runs within less than a mile of this section and that any road that might be laid out through this district from Booneville to Burton would come near this section. Therefore, it is soon that there is no reason in the world why this section should not be incorporated in the road district. It is further shown that the draftsman intended to include it, but inadvertently left it out. This is an admission, as we take it, on the part of those interested in forming the road district that it should have been incorporated in the district. It will be seen, therefore, that there is one square mile, or six hundred and forty acres of land, with all of the people and personal property located thereon, that should have been in this district and subjected to the road tax, but which will escape if these bonds are validated and will receive all of the benefits of the road and bear none of the burden of its upkeep.

It is said, however, by counsel for appellant, that this section can yet petition in under the provisions of section 8 chapter 277, but that is now even a remote possibility. They are getting all of the benefits of the road without even paying the tax. No additional benefits would, in any conceivable manner, flow to them by petitioning in and assuming this additional burden of taxation; and, of course, they are not going to assume this additional burden. This case is almost identical with that of Borroum v. Purdy Road District, 131 Miss. 778, 95 So. 677.

It is contended by the appellant that in this case the bonds should be validated because there was no appeal from the order of the board of supervisors issuing the bonds, citing Liddell v. Noxapater School District. The Liddell case, and authorities there cited, simply holds that when the jurisdictional facts appear in the judgment of the inferior tribunal and no appeal or certiorari is taken therefrom, judgment is conclusive and cannot be attacked collaterally. That does not apply here for the reason that the record shows that section 32 was left out and no reason whatever given therefor. Borroum v. Purdy Road Dist., supra. The proceeding in this case is analogus to Gore v. Doolittle, 77 Miss. 620, 27 So. 997, and Garner v. Webster Co., 79 Miss. 565, 31 So. 210, which this court condemned.

It is said by counsel for appellants that no damage was done to the other parts of the district; that there was no damage done to the other part of the district by the parties who lived in section 32; and that the chancellor so found. It is true he stated in substance that this was his opinion, but it is very apparent that he is mistaken in so far as the other part of the district is concerned, because the other part of the district will have to pay all of this twenty-six thousand dollars, with interest, without any help...