Borroum v. Purdy Road Dist.

• Decision Date: 19 March 1923
• Docket Number: 23338
• Citation: 131 Miss. 778,95 So. 677
• Court: Mississippi Supreme Court
• Parties: BORROUM et al. v. PURDY ROAD DIST

95 So. 677

131 Miss. 778

BORROUM et al. v. PURDY ROAD DIST

No. 23338

Supreme Court of Mississippi

March 19, 1923

HIGHWAYS.- Creation of road district by board of supervisors where jurisdictional facts recited in the record cannot be collaterally attacked; order of board of supervisors creating road district lying partly beyond state void and may be collaterally attacked; where order of board of supervisors creating road district void, court cannot enter new order changing or limiting district.

In a proceeding to validate bonds under chapter 28, Laws Ex. Sess 1917, the validity of the creation of a road district cannot be inquired into if the record before the board shows the jurisdictional facts in so far as matters of fact are concerned. Where the record shows or recites the jurisdictional facts, the order of the board has all the effect of a court of general jurisdiction and cannot be attacked except by direct appeal. But where the board exceeds its territorial jurisdiction, and part of the district created lies beyond the state, its order is void, and this may be shown in a collateral proceeding. In such case the court cannot enter a new order changing the district or limiting it to such territory as lies within the county or state. A district must stand or fall as it is created by the board.

HON. A J. McINTYRE, Chancellor.

Appeal from chancery court of Alcorn county, HON. A. J. MCINTYRE Chancellor.

Suit by Theodore Borroum and others against Purdy Road District. From a decree for defendant, plaintiffs appeal. Reversed and rendered.

Judgment reversed.

W. J. LAMB, for appellants.

The board of supervisors is a court of limited and special jurisdiction and only has such authority and jurisdiction of matters as is given them by law, and that the jurisdictional fact that twenty per cent of the qualified electors of the district had signed the petition is not shown by the petition, or in any other way, and therefore their order declaring the proposed district is nugatory and void. The basis of their entire proceedings is bound to be founded and determined by the petition, and without the petition giving them the authority, they have no right to act in the matter, and it was the duty of the board for the protection of the rights of citizens to ascertain that twenty per cent of the qualified electors had signed the petition, and the board had no authority or power to act until this fact had been established, which is not established in this case either by the petition or proof otherwise, and there is no presumption by law in favor of the truthfulness of the petition containing twenty per cent of the qualified electors, nor is there any presumption in favor of the validity of their order based on this petition, but in fact the law says the presumption is against it. Bolivar County v. Coleman, 71 Miss. 835; Byrd v. State, 1 How. 163; Root v. McFerrin, 37 Miss. 17; Scott v. Porter, 44 Ib. 364.

Now, there is nothing in this record to show, when the order was passed, that the board of supervisors had any authority whatever to pass this order, nor can there be any presumption of law or fact that they had the authority to pass this order. Garner v. Webster Co., 79 Miss. 565; Bolivar Co. v. Coleman, 71 Miss. 832, 15 So. 107; Root v. McFerrin, 37 Miss. 17, 75 Am. Dec. 49; Ballard v. Davis, 31 Miss. 525; Marks v. McElroy, 67 Miss. 545, 7 So. 408; Craft v. DeSoto Co., 79 Miss. 618, 7 Enc. L. & Prac. 467, et seq; 12 Am. & Eng. Ency. Law, 271; White v. Railroad Co., 64 Miss. 566, 1 So. 730; Board v. Allen, 60 Miss. 93; Madden v. Railway Co., 66 Miss. 258, 6 So. 181.

In the case at bar we think we can safely say, as was said in the opinion of the court, supra, that there is nothing in the record to show that twenty per cent of the qualified electors signed the petition. It is true that the board of supervisors said so in their order, but their order is based on the petition and the petition does not show that twenty per cent of the qualified electors signed the same, nor was there anything before the board of supervisors to show that twenty per cent of the qualified electors had signed the petition, which fact is not shown by the petition or in any other way.

The board in this case was exercising a naked statutory power, and it was necessary that the proceedings of the board must show upon their face strict conformity with the statute conferring this power, and the want of such conformity rendered their acts and doings nugatory and void. State v. Morga, 79 Miss. 659; Ferguson v. Monroe, Co., 71 Miss. 524.

The board could not look to the petition alone, or at all, for the necessary jurisdiction of facts, and there is nothing in this record to show that twenty per cent of the qualified electors signed the petition. Jefferson Co. v. Grafto, 74 Miss. 442.

In view of these facts and the law as cited above, we respectfully submit that the court erred in entering its decree in this case, and the objections ought to have been sustained. The board undertook to operate, as is set out in the petition, under the provisions of chapter 176, of the Acts of 1914, and of amendments thereto, including chapter 277 of the Acts of 1920. Chapter 277 of the Acts of 1920 undertakes to amend section 176 of the Acts of 1914. We contend that chapter 277 of the Acts of 1920 are unconstitutional and void.

Section 71 of the Constitution provides: "Every bill introduced in the legislature shall have a title and the title ought to indicate clearly the subject matter or matters, of the proposed legislation, etc."

An examination of the Acts of 1920, chapter 277, shows that it is in direct conflict with this clause of the Constitution. Levee Commissioners v. Insurance Co., 96 Miss. 832. A comparison of chapter 277, Acts of 1920, with chapter 176 of 1914, the court will see that sections 2, 3, 4, 5, 6, 7, 8, 10, 13 and 17, are all changed and amended, the Laws of 1914, chapter 176, and no reference whatever is made to any of these sections or paragraphs in chapter 277 of the Acts of 1920, and in addition to these changes in the acts of 1914, the Acts of 1920, chapter 277, contains three additional sections more than is contained in the chapter 176 of the Acts of 1914, making an entirely new and different law. We would set these changes all out for the court, but the changes can be readily seen in a comparison of the two statutes.

Now, as we said above, the Acts of 1920, chapter 277, are either unconstitutional because of section 71 of the Constitution, or else it entirely repeals chapter 176 of the Acts of 1914, and as the petition in the case at bar was based on chapter 176 of Acts of 1914, then there was no such law in existence for the same to be based on. Levee Commissioners v. Insurance Co., 96 Miss. 834.

If the law makers desired to amend or change any of the sections of chapter 176 of the Acts of 1914, then under the authorities cited above it was their duty to so specify, and it has been decided by this court that the provisions in section 71 of the Constitution are mandatory. Sample v. Town of Verona, 94 Miss. 264. In addition to the above, we have chapter 207 of the Acts of 1920.

The court will see that chapter 207 of the Acts of 1920, is a a general law, and it specifically provides that all acts and parts of acts in conflict with this act are hereby repealed. There can be no question but what chapter 176 of the Acts of 1914, and chapter 277 of the Acts of 1920, are in conflict with this act, and under section 6 of chapter 207 these other two acts are expressly repealed. Chapter 207 of the Acts of 1920 makes no reference to repealing any other act or amending any, but becomes a general law and by its own terms repeals everything in conflict with the same, and is a general law providing for a uniform method and plan for the issuance of bonds, and being a general enactment, the legislature intended to repeal all laws in conflict therewith. In the case of Bascot, et al. v. Board of Supervisors of Hinds Co., 124 Miss. 263, this court has held that chapter 207 of the Acts of 1920 is a general law. Rosenstock v. Washington Co., 85 So. 91; A. H. & S. v. LeFlore Co., 85 So. 198.

There can be no question but what chapter 207 of the Acts of 1920, takes precedence over chapter 277 of the Acts of 1920, because chapter 207 was approved and became a law on April 2, 1920, and chapter 277 was approved and became a law on March 26, 1920. In conclusion, on this subject we wish to say that chapter 207 of the Acts of 1920, repeals all laws in conflict with that act, and is the general scheme by which bonds can be issued, and that the board of supervisors in this case was operating and acting under a law that was not in existence and that had been repealed, and we respectfully submit that its acts and doings were illegal and void.

In view of these contentions, we respectfully submit that the court erred in entering its decree in this cause, and that the objections should have been sustained.

W. C. Sweat, for appellee.

The record of the board of supervisors shows that it found all jurisdictional facts to exist. No appeal was prosecuted from any of its orders issuing these bonds; and this is a collateral attack on the orders of the board of supervisors issuing these bonds.

The board of supervisors, by section 170 of the Constitution, is vested with full jurisdiction over roads, ferries and bridges. Since this bond issue was made for the purpose of constructing roads, the board of supervisors, in passing its orders, were exercising a jurisdiction which was vested in it by the Constitution--a full and exclusive jurisdiction in which no other court, either by the Constitution or by the statutes of the state, had any authority to act. The board of...