Board of Supervisors of Marshall County v. Stephenson

• Decision Date: 04 May 1931
• Docket Number: 28886
• Citation: 160 Miss. 372,134 So. 142
• Court: Mississippi Supreme Court
• Parties: BOARD OF SUPERVISORS OF MARSHALL COUNTY et al v. STEPHENSON

134 So. 142

160 Miss. 372

BOARD OF SUPERVISORS OF MARSHALL COUNTY et al v. STEPHENSON

No. 28886

Supreme Court of Mississippi

May 4, 1931

Division A

Suggestion Of Error Sustained May 4, 1931. Original Opinion Apppearing In 130 So. 684 Is Withdrawn.

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

The County School Board of Education, Marshall County, by its order, organized the Laws Hill Consolidated School District and C. C. Stephenson and others appealed to the Board of Supervisors, and, from its order, an appeal was taken to circuit court. The circuit judge also on separate petition ordered writ of certiorari to be issued to Board of Election Commissioners to send up its record, and likewise to County School Board of Education. The cases were heard as one cause. From the judgment, the Board of Supervisors and others appeal. Affirmed.

Judgment affirmed.

E. C. Wright and Lester G. Fant, both of Holly Springs, for appellants.

Mere administrative orders of an inferior tribunal cannot be removed to and be examined by a circuit court on certiorari; but only such as are of a judicial nature.

Forrest Co. v. Melton, 123 Miss. 615.

County school board is not a judicial tribunal. The creation of a school district is a legislative act and not judicial.

School Board v. Reese, 143 Miss. 880.

Contests of election are not by appeal nor certiorari and are governed by statutory procedure. No appeal is provided from election commissioners action.

Hemingway 1927 Code, sections 8027-8077-8078.

Quo warranto proceeding is another remedy.

Section 3237, Hemingway's Code 1927.

Election board is not a judicial tribunal and acts are administrative and not subject to review by certiorari.

Forrest Co. v. Melton, 123 Miss. 615.

The county school board is sole authority empowered to create school districts.

Board v. Reese, 143 Miss. 880, section 38, chap. 283, Laws 1924.

The powers of the board of supervisors are conferred by express legislative enactment and its jurisdictional powers are prescribed and in none of them that we have been able to find is there power to hear appeals from other boards created by the same authority nor to sit in review of their actions.

Lester G. Fant, of Holly Springs, for appellant.

In the state of Mississippi the creation of school districts is left exclusively in the hands of the board of education.

Trustees of Walton School et al. v. Board of Supervisors of Covington County, 115 Miss. 117.

The powers conferred by said statute upon the county boards of education to organize consolidated school districts are not 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 Supervisors, 97 So. 811.

The order of the county school board stated the jurisdictional facts, and under statutory schemes creating such districts as the one here involved the court is only concerned with the question as to whether the board had proper jurisdiction of the matter before it. The power partakes of the legislative character to be exercised by the board upon the existence of certain conditions prescribed by law; and, where the jurisdictional facts are shown to exist, the board's finding is conclusive, unless the court has been specifically given power to review such question.

Liddell v. Noxapater, 129 Miss. 513.

The order of the board of education is found in the minutes of the board, and the minutes of the board show that a majority of the patrons of the school signed the petition, and there being no attempt to show fraud, there being no proceedings in a chancery court, the only court that would have jurisdiction over setting aside fraudulent actions of the board. The only appeal then is by writ of certiorari, and the certiorari only looks for defects that the record of the board of education would show. This record could not show any defects that the record of the board of education would show. This record could not show any defects except those that would be patent on the face of the record.

School Board v. Reese, 143 Miss. 880.

Smith & Smith, of Holly Springs, for appellees.

The county board of education is an inferior tribunal having judicial or at least quasi judicial powers, and from their judgment an appeal to the circuit court by certiorari proceedings is authorized.

Lidell v. Noxapater, 92 So. 631, 129 Miss. 513; Alexander v. State, 127 So. 696; Lee v. Bassett, 121 So. 842, 153 Miss. 854; Power v. Robertson, 130 Miss. 188, 93 So. 769; Ferguson v. Monroe County, 71 Miss. 424, 14 So. 81; Board of Supervisors of Forrest County v. Milton, 86 So. 369, 123 Miss. 615; Gilbert v. Scarbrough, 131 So. 876.

Mere irregularities in proceedings establishing consolidated school districts cannot be inquired into, in absence of appeal to the board of supervisors.

Board of Supervisors of Marshall County v. Brown et al., 111 So. 831, 146 Miss. 56.

A protest was filed originally and independently before the county board of supervisors protesting against the board of supervisors granting the petition to call an election in the school district for the purpose of determining whether or not to issue bonds.

The appellees also appealed from the county board of education. Upon the overruling of the protest and appeal, an appeal to the circuit court was proper.

Board of Supervisors of Marshall County v. Brown, 111 So. 831, 146 Miss. 56.

The county board of education may administer schools and consolidate them and such act is administrative. But when such consolidation is brought about by a petition of the school patrons for the purpose not only of forming a consolidated school district but also a taxing district, whereby tax payer's property is taken, the jurisdictional fact of legal signatures of a majority of the patrons must be determined, not as a mere administrative act, but as a judicial act.

Alexander v. State, 127 So. 696; Power v. Robertson, 130 Miss. 188, 93 So. 769; Ferguson v. Monroe County, 71 Miss. 424, 14 So. 81.

Judicial powers of an inferior board can be separated from administrative power and orders and the writ of certiorari had as to such as are of a judicial, or quasi judicial nature.

Forrest County v. Milton, 86 So. 369.

The distinction between ministerial and judicial, and other official acts seems to be that where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial; but where the act to be done involves the exercise of discretion or judgment in determining whether the duty exists, it is not to be termed merely ministerial. When considering whether a particular act of a court, or an officer charged with judicial or quasi judicial functions, is judicial or ministerial the exercise of judgment and discretion is determined as the distinguishing test.

34 Corpus Juris, 1179.

Certiorari is a proper remedy from the circuit court to the county board of education, whereby may be brought up for review by the circuit court the action of the county board of education.

Liddell v. Noxapater, 92 So. 631, 129 Miss. 513; Board of Supervisors of Calhoun County v. Young, 126 So. 469; Crownen, County Supt., v. Young, 126 So. 470.

These contestants had a right to take a direct appeal from the decision of the board of supervisors to the circuit court, and the jurisdiction of the board of education could be brought into question before the board of supervisors, and the order of the board of education being void for lack of jurisdiction, the order of the board of supervisors predicated on a void act of the board of education was void, and both subject either to direct or collateral attack.

Williams v. Lee, 132 Miss. 499, 97 So. 14, 96 So. 401, 132 Miss. 739.

Section 60, Hemingway's Code 1927, provides for the appeal from the board of supervisors to the circuit court, and provides further that if the court reverses the judgment of the board court shall render such judgment as the board ought to have rendered, and certify the same to the board of supervisors, and a bill of exceptions may be signed in vacation by agreement.

McGee v. Jones, 63 Miss. 453.

Smith, C. J., delivered the opinion of the court on Suggestion of Error.

OPINION

ON SUGGESTION OF ERROR.

Smith C. J..

The judgment of the court below herein was reversed on a former day, and it appears from a suggestion of error thereafter field that we erred in so doing for a reason not discussed in the former opinion, 130 So. 684, and having no bearing on the question "there" to be discussed. The statement of the case will therefore be limited to facts bearing on that question, and the opinion hereinbefore rendered will be withdrawn.

On June 1, 1929, a petition was filed with the board of supervisors of Marshall county for the issuance of bonds of the "Laws Hill Consolidated School District;" and on the 3d day of June the county superintendent of education certified to the board of supervisors a copy of the order of the county school board creating the school district. Several written protests against the issuance of these bonds were filed by interested parties, which protests were overruled at the July meeting of the board of supervisors, and an election for the issuance of the bonds was ordered.

This election resulted in favor of the issuance of the bonds, and on the 9th day of August thereafter the board of supervisors over the protest of interested parties, including the appellees, ordered the bonds to be issued, setting forth in its order that the "objectors...