Board of Trustees of State Institutions of Higher Learning v. Van Slyke, 56261

• Decision Date: 20 May 1987
• Docket Number: No. 56261,56261
• Citation: 510 So.2d 490
• Parties: 40 Ed. Law Rep. 1352 BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING, et al. v. J.B. Van SLYKE, Jr.
• Court: Mississippi Supreme Court

Page 490

510 So.2d 490

40 Ed. Law Rep. 1352

BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING, et al. v. J.B. Van SLYKE, Jr.

No. 56261.

Supreme Court of Mississippi.

May 20, 1987.

Edwin Lloyd Pittman, Atty. Gen. by Ed Davis Noble, Jr., Asst. Atty. Gen., Jackson, for appellants.

J.B. Van Slyke, Jr., Hattiesburg, pro se.

ON PETITION FOR REHEARING

En Banc.

GRIFFIN, Justice, for the Court:

This cause is now considered on a petition for rehearing, wherein the Court is asked to withdraw its decision of December 17, 1986. We grant the petition and this opinion is adopted as the opinion of the Court.

The appellee states in his complaint that there is no specific venue statute covering this case. We differ, and invite attention to Miss.Code Ann. Sec. 25-61-13 (Supp.1986), Chapter 424, Sec. 7, General Laws of the State of Mississippi 1983, an Act entitled "Mississippi Public Records Act of 1983"; and Miss.Code Ann. Sec. 11-5-1 (1972), which had as its original source Code of 1857, Chapter 62, Article 6. For the reasons hereinafter delineated, we hold that the Chancery Court of Forrest County should have sustained the motion to change venue.

This case arrives here from the Chancery Court of Forrest County. The appellee in his complaint, alleges that he had standing to bring this action as a citizen of the State aggrieved by the conduct of the Board of Trustees of State Institutions of Higher Learning in not affording him certain public records as required of that Board by the "Mississippi Public Records Act of 1983". We agree with that contention. Mississippi Publishers Corp. v. Board of Trustees of State Institutions of Higher Learning, 478 So.2d 269 (Miss.1985). Significantly, though, alleging he has been denied a right under the Act, he seeks no relief thereunder.

After reciting his standing to bring this action, the appellee attacks the constitutionality of the composition of the Board of Trustees. Under that section of his complaint entitled "RELIEF", he sought the following from the chancellor:

A) Adjudicate that Article 8, Section 213-A, of the Mississippi Constitution, and Sections 37-100-1 through 37-101-261 of the Mississippi Code of 1972, as Amended, establishing the Board of Trustees, in effect created an autonomous branch of government in violation of Article 1, Section 1, and Article 3, Section 5, of the Mississippi Constitution; and/or

B) The appointment of members of the Board of Trustees to a constitutional office or position as authorized in Article 8, Section 213-A, and Sections 37-101-3 and 37-101-5, is in violation of Article 3, Section 5, of the Mississippi Constitution; and/or

C) Adjudicate that the Board of Trustees of Institutions of Higher Learning is in the legislative department of government, and to allow the executive department to exercise the power of appointment to said Board as authorized by Article 8, Section 213-A, and Section 37-101-3 and 37-101-5, is a violation of the constitutional principle of separation of powers, and contrary to Article 1, Sections 1 and 2, and Article 4, Section 33, of the Mississippi Constitution; and/or

D) Adjudicate that the Board of Trustees is a constitutional body and is subject to constitutional apportionment, and prescribe a suitable plan meeting the constitutional requirements; and

E) Issuing a preliminary and final Injunction prohibiting the Board of Trustees from removing or assigning any further leadership roles or doctoral programs until the final outcome of the litigation in Hinds County, Mississippi, and the final determination of the constitutional questions raised herein; and

G) Grant such other general and further relief as the Court may deem appropriate in the premises.

At the time the appellee filed this action in Forrest County, he had pending an action in the Chancery Court of Hinds County, wherein he requested specific relief under the Mississippi Public Records Act. While his case was on file in Hinds County, the Chancery Court of that county entered an opinion in Mississippi Publishers Corp, supra. That case was appealed to this Court, and supersedeas was granted to the College Board by Chief Justice Patterson on November 8, 1984, from an adverse ruling of the Chancellor. After the appeal of the Mississippi Publishers case, the Board of Trustees filed a motion to hold the appellee's Hinds County case in abeyance until the Mississippi Publishers case could be decided by this Court. The appellee states in his brief in this cause that his response to that motion confessed the same, and makes the following statement: "Therefore, from appellee's standpoint, the pending case [i.e., his case] in the Chancery Court of Hinds County, Mississippi, has now been resolved by the issues raised in the Mississippi Publishers case."

Still, he states that the "issues" there give him standing to bring his action in Forrest County. He filed his suit in Forrest County on October 29, 1984, while his action in Hinds County was pending, and abeyance agreed to. The Mississippi Public Records Act creates a new cause of action in favor of one denied access to public records. Miss.Code Ann. Sec. 25-61-13 (Supp.1986). This section provides that one aggrieved "may institute a suit in the Chancery Court of the County in which the public body is located ... Process shall be served on the proper officials according to law." (emphasis added)

This should be sufficient for the termination of this opinion. However, a unique contention is made that the Board is sued as an entity and may be sued in any county in which it does business. Miss.Code Ann. Sec. 25-61-3(a) (1972), states that a "public body" includes any governmental entity created by the constitution or laws, executive order, ordinance or resolution; however, said section also provides "the term 'entity' shall not be construed to include individuals employed by a public body or any appointed or elected official." The right of action under the Mississippi Public Records Act is against individuals and must be. Only individuals may be ordered to do a specific act; a governmental entity cannot respond by affirmative conduct. The Act itself provides for process on the official against whom relief is sought.

All parties agree, and it is a matter of common knowledge, that the "public body" subject to this action is located in Hinds County.

Assuming, without deciding, that the appellee has standing on the constitutional questions, the action still does not lie in Forrest County. His complaint sets forth the names of the various parties, the trustees and the executive secretary. None of them are residents of Forrest County. Chapter 62, Article 6, Code of 1857, supra, dealing with venue in chancery court, among other things, provides: "and in all cases, suits may be brought in any county where the defendant, or any necessary party defendant, may reside or be found; and process may issue to any county in the state...." Miss.Code Ann. Sec. 11-5-1 (1972), the present statute on venue of suits in chancery, among other things provides: "And in all cases not otherwise provided may be brought in the Chancery Court of the County where the defendant, or any necessary party defendant, may reside or be found; and process may issue to any county...." The other cases provided for include matters concerning real estate, executors, administrators, and guardians and other real or personal property.

M.R.C.P. 82(b) provides that venue of all actions shall be provided by statute. This simply reannounces the law. Griffith, Mississippi Chancery Practice, Sec. 151 (2d ed. 1950), also provides that venue is controlled by statute. Sec. 152, concerning in personam actions, distinguishes them from those concerning real or personal property, and states, "It is the scope of the suit and not that which gave it birth that controls." Sec. 155 provides "Suits wholly in personam must be filed in the county where one of the necessary parties defendant resides. It is true that the statute again uses the permissive word 'may' in that connection, but it is the uniform policy of judicial procedure in our state to bring all litigation in personam to the home of the defendant, and the statute must be construed in the light of that policy." Justice Griffith was speaking about Section 1274, Code of 1942, now appearing as Sec. 11-5-1. Interestingly it has not been amended since the second edition of his works was published.

In short, although the statute does not itself confer jurisdiction, it does fix the "venue or locality in which suits may be tried of which the chancery court has jurisdiction." State v. Massachusetts Bonding & Insurance Co., 187 Miss. 66, 72, 191 So. 285 (1939).

Repeatedly, this Court has stated that the right to be sued in the county of one's residence is a valuable right, not a mere technicality. Jefferson v. Magee, 205 So.2d 281, 283 (Miss.1967); Crosby v. Robertson, 243 Miss. 420, 426, 137 So.2d 916, 918 (1962); Long v. Patterson, 198 Miss. 554, 562, 22 So.2d 490, 492 (1945). Indeed, a chancery court has no jurisdiction over a defendant who neither resides nor is found in the county where the suit is filed, absent waiver. Hager v. Coburn, 150 Miss. 193 202, 116 So. 540, 541-42 (1928). This is consistent with Clark v. Louisville & Nashville Railroad Co., 158 Miss. 287, 304, 130 So. 302, 307 (1930), where the Court recognized the State's power to "fix venue of actions according to its judgment of convenience, justice, etc."

In the present case, Van Slyke maintains that venue is proper in any county where the Board of Trustees "does business." Yet, no venue statute is so broad. Indeed, the last statute to hold such was Miss.Code Ann. Sec. 11-11-5 (1972), which permitted suit against a "railroad, express, steamboat, power, superpower, telegraph, or telephone corporation" in any county where it conducted business. In 1979, the Legislature amended the statute to allow suit only in the county where the...