Board of Supr's. of De Soto County v. Dean

• Decision Date: 23 June 1919
• Docket Number: 20771
• Parties: BOARD OF SUPR'S. OF DE SOTO COUNTY v. DEAN ET AL
• Court: Mississippi Supreme Court

82 So. 257

120 Miss. 334

BOARD OF SUPR'S. OF DE SOTO COUNTY v. DEAN ET AL

No. 20771

Supreme Court of Mississippi

June 23, 1919

March 1919

Division A

1 MANDAMUS. Ministerial act. Issuance of bonds.

The issuance of road district bonds authorized under Laws 1916 chapter 173, and Laws 1918, chapter 214, by the board of supervisors is a ministerial and not a judicial act and mandamus is the proper remedy toenforce such issuance.

2 HIGHWAYS. Creation of road districts. Power of supervisors. Statutes.

Chapter 173 of the Laws of 1916, does not confer on boards of Supervisors any power to create a road district, but chapter 214 of the Laws 1918, by necessary implication does confer the power upon such boards to create a road district and does not restrict them to any particular method in doing so.

3. HIGHWAYS. Creation of road districts. Changing boundaries. Statutes.

Since Laws 1916, chapter 173, and Laws 1918, chapter 214, do not prescribe the procedure of the creation of road districts thereunder, boards of supervisors may pursue their own course in doing so, and hence the board has the right to change the boundaries of the district prior to calling an election for ascertaining the wish of the qualified electors relative to the issuance of bonds.

4. HIGHWAYS. Road district. Issuance of bonds. Order eliminating land. Statute.

An order eliminating land from a road district entered after the election for the issuance of bonds is void, for the reason that the bonds authorized, and which it is the duty of the board under the statute to issue are those of the district as consituted when the election was held.

5. COUNTIES. Road districts. Bond election. Notice. Statute.

The recital in the published notice of the election that it was to be participated in by registered voters who were landowners, was mere surplusage, and did not make the election held pursuant thereto void.

HON. E. D. DINKINS, Judge.

APPEAL from the circuit court of De Soto county, HON. E. D. DINKINS, Judge.

Petition for mandamus by S. B. Dean and others against the board of supervisors of De Soto County. From a judgment granting the prayer of the petition, defendants appeal.

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

Affirmed.

Robt. B. Mayes, for appellant.

I desire to comment on only a few things contended for in the brief of counsel for appellee. I make the statement that there is no statute in Mississippi now in existence, or that ever has been passed, giving the board of supervisors the power to create, or to initiate the creation, of any special road district; I have called the attention of the court to all the statutes on the subject in my original brief. The initiation of any road district must be a petition filed by twenty per cent of the qualified electors of any territory proposed to be included in a special road district. If this petition is not filed, no matter what else may have been done by the board, is is without jurisdiction. If they hold any election without this petition, the election is a nullity because the board was without power to order it. The petition in this case merely indicates that numerously filed petition was presented. The minutes of the board do not show any jurisdictional facts. In the case of Hinton v. Perry County, 84 Miss. 536, this court has set forth the rule on this subject. It was said in matters in which the county board has limited jurisdiction, its minutes must show the jurisdictional facts, but its judgment need not set forth the evidence. See, also Adams v. State Bank, 67 So. 770. The case of Wallace v. The State, 61 So. 880. The case of Wallace v. State, 61 So. 162, is directly in point. In the last case the law required that when a territory was to be released from a special school district, it could be done only upon the petition of the majority of the resident freeholders. The court held that this petition was necessary to give the board jurisdiction to act. I might cite many other authorities, but it seems that this is sufficient to demonstrate that if the filing of the petition was necessary, the statute must be complied with, and the averment of the petition shows that it was not. When we depart from the statute and say things "will do," we leave our guide and our power.

Coming now to the next question. We differ from counsel and their conclusion. Let's analyze for a moment the Act of 1918, page 263. In the first place, when this district was attempted to be created, this act was not in existence. The only power then to create a special road district was a general law, and in order to create the district this general law must have been followed (Act of 1914). The only purpose of the Act of 1914 is to cure defects in the caption, and section one of the Acts of 1916. Let the court bear in mind that before this curative act was passed, the creation of a district and issuance of bonds could not be done simultaneously. At least, the legislature thought so when it passed the Act of 1918, and the court had some serious doubts about it. In order that a district might be created and bonds issued at the same time this curative act was passed, but no formed law relative to how districts should be created was repealed or modified.

Reading further the act says that in cases where bonds have been issued by any road district, created under the Acts of 1916, they shall be valid "where all the preliminary conditions required by law have been complied with in all respects." Now counsel says that this clearly implies that the Act of 1918, "implies that the board of supervisors may initiate the matter thereafter." In other words, if the contention of the counsel is correct the Act of 1918, although not in conflict with any other statute, and not giving any power to the board of supervisors to initiate a special road district, repeals all other laws on this subject. It will be a vain search of the Acts of 1916 and 1918 to find in them any actual, or implied power given to the petition required by law. We think that no such interpretation as this can be given the act, because if the legislature had intended it they would not have required that all the preliminary conditions required by law be complied with, but they would have said all preliminary conditions required by chapter 173, Act of 1916 be complied with and since this act does not contain all the law on the subject on the creation of road districts but in order to find out what the law is, the preliminary conditions of which are required to be fulfilled we must go to other statutes. "All the preliminary conditions required by law" have not been fulfilled when only the Act of 1916 has been pursued. The construction given by the counsel would destroy every other act except this one. If the legislature had intended it, they would have said that the bonds should be good where all the preliminary conditions required by the Act of 1916 had been followed.

While section one of the Act of 1914 authorizes the board to create special road districts, it is qualified by section two giving such power only when the initiation is taken by twenty per cent of the qualified electors. The power to create is left to the people as provided by section two. The Act of 1916 only intends to give the power to the board to initiate bonds to support a district after it is created as required by law.

Burch & Minor, for appellee.

The court has requested additional briefs on the two following propositions: First: "Does the statute under which the board of Supervisors proceeded in the matter here under discussion authorize the creation of a road district, or does it contemplate the issuance of bonds by a district already in existence?" Second: "Should the foregoing question be answered in the negative, can the district be held to have been created because of the compliance by the board of supervisors with the provisions of any other statute?"

We respectfully submit for the appellees that an affirmative answer should be given to each of the foregoing questions.

First Question.

Whatever doubt there may have been as to this was solved by the legislature of 1918 in the passage of chapter 214 of the Acts of 1918, which was an act to cure any defects in the Act of 1916 here in question and which provides: "That in all cases where any bonds have been issued or are proposed to be issued, by any road district created and operating under the provisions of chapter 173 of the Acts of the Mississippi legislature of 1916, where all the preliminary conditions required by law have been complied with in all respects, and where there may be a question of doubt in respect to the sufficiency of the caption of said act, and doubt as to the authority conferred upon boards of supervisors to create road districts, by section one of this act, said bonds shall be held and treated in all respects the same as if the title to said chapter 173 had been ample and sufficient; and as if section 1 of said act had been clear and positive in conferring upon boards of supervisors authority to create road districts, as well as to issue the bonds of such districts as had been previously created." Acts of 1918, chapter 214.

This Act of 1918, therefore, we submit, sets the whole question at rest. Taking the whole of chapter 173 of the Acts of 1916, it is apparent that the legislature intended thereby, not merely to authorize the issuance of bonds by districts already created but also to authorize the creation of districts. If the act had the first purpose only (the issuance of bonds by districts already created) it was not needed as that was a matter already fully provided for by the act of 1914 (Ch. 176).

This same question was made as to chapter 176 of the Acts of 1914 the first sect...