Boutwell v. Board of Sup'rs of Jasper County

• Decision Date: 20 March 1922
• Docket Number: 22539
• Citation: 91 So. 12,128 Miss. 337
• Court: Mississippi Supreme Court
• Parties: BOUTWELL ET AL. v. BOARD OF SUPERVISORS OF JASPER COUNTY

91 So. 12

128 Miss. 337

BOUTWELL ET AL. v. BOARD OF SUPERVISORS OF JASPER COUNTY

No. 22539

Supreme Court of Mississippi

March 20, 1922

1. SCHOOLS AND SCHOOL DISTRICTS. Failure of second consolidation order to describe the entire district held not to affect validity.

The order and resolutions of a county board of education organizing four rural school districts into a consolidated school district are not void because such organization was the result of two separate orders by such board made at different times, the first of which organized three of said rural school districts into a consolidated district, properly describing the territory of said consolidated district; and the other, the later order, added another rural school district, properly describing the territory therein, and recited that it. should become a part of the consolidated district theretofore established under a certain name; the better plan, however (although not indispensable), is that the last order describe the entire territory in the consolidated district.

2. APPEAL AND ERROR. Chancellor's finding of fact on conflicting evidence not disturbed.

On the issue whether or not a consolidated school district was improvidently organized in that it deprived a large number of the school children of the district of public school facilities, where the evidence is conflicting and the chancellor finds against that contention, such finding of fact will not be disturbed on appeal.

3. SCHOOLS AND SCHOOL DISTRICTS. Order for and report of bond election held insufficient to show compliance with statute as to place.

Under chapter 194, Laws of 1916, section 4004, Hemingway's Code, which provides that bond issue elections for consolidated school districts shall be held at the schoolhouse of said district, or, if there be none, shall be held at a convenient place designated by the trustees of the school, where the minutes of the board of supervisors provided that the election should "be held in said district on the 28th day of August, 1920, for ratification or rejection," and the report of the election commissioners approved by the board recited that the election was held "at Rose Hill consolidated school district August 28, 1920," this was insufficient to show that the statute had been complied with, because it cannot be reasonably inferred therefrom whether the election in question was held at the schoolhouse in the district or at any other place authorized by law.

4. SCHOOLS AND SCHOOL DISTRICTS. Statute providing for place of bond election held jurisdictional; compliance with statute as to place of election must affirmatively appear on minutes of supervisors.

Chapter 104, Laws of 1916, section 4004, Hemingway's Code providing where an election shall be held in a consolidated school district to determine the question of the issuance of the bonds of such district, is fundamental and jurisdictional, and a failure to comply with the statute is fatal to the bond issue, and the court will not inquire into the question whether such violation of the statute misled the voters or otherwise resulted in harm; and such jurisdictional fact must affirmatively appear on the minutes of the board of supervisors; it cannot rest in parol; such board cannot speak, except through its minutes so far as the essentials of jurisdiction are concerned, and no presumption will be indulged in favor of such jurisdiction.

5. SCHOOLS AND SCHOOL DISTRICTS. Statutory requirement for maintenance tax levy held jurisdictional; compliance with statute as to maintenance tax levy must affirmatively appear on minutes of board of education and board of supervisors.

The maintenance tax authorized for a consolidated school by chapter 170, Laws of 1930, Hemingway's Supplement section 4002, which provides for its levy on the petition of a majority of the qualified electors of the district upon the approval of the board of education, cannot be levied unless the statute has been complied with, and the requirement that the majority of the qualified electors shall petition for the levy of such tax and that such levy shall have the approval of the board of education before the board of supervisors shall make the same are jurisdictional. And the tax levied without compliance with the statute is void, and such compliance with the statute must appear affirmatively on the minutes of the board of education and board of supervisors. It cannot be shown by parol.

HON. G C. TANN, Chancellor.

APPEAL from chancery court of Jasper county, HON. G. C. TANN Chancellor.

Bill by W. H. Boutwell and others against Jasper County. Judgment of dismissal, and plaintiffs appeal. Reversed and remanded.

Reversed and remanded.

S. E. Travis and L. Hennington, for appellant.

Rawls & Hathorn, for appellee.

OPINION

ANDERSON, J.

The appellants, qualified electors, taxpayers, and patrons of the Rose Hill consolidated school district of Jasper county, filed their bill in the chancery court against the appellee, the board of supervisors of said county, attacking the organization of said Rose Hill consolidated school district; the legality of the bonds proposed to be issued for said district for the purpose of building and equipping a school building therefor; the legality of the maintenance tax levied by appellee for the support of said school; and seeking an injunction against the issuance of said bonds and the levy and collection of said tax. An injunction was issued and served according to the prayer of the bill.

The case was tried on bill, answer, motion to dissolve injunction, and testimony, and a decree was rendered dismissing the appellants' bill, from which they prosecute this appeal.

It is contended that the action of the county board of education in organizing the Rose Hill consolidated school district is void because the territory composing the district is not properly described in the order of said board. On June 14, 1920, at a meeting of the county board of education, its minutes show that it was attempted to organize the Rose Hill, Homewood, and New Providence rural school districts into a consolidated school district. That order is in this language:

"Ordered by the board that the Rose Hill, Homewood, and Providence regular school districts be and that they are hereby consolidated into one consolidated school district to include the following described territory: All of sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, township 3, range 13 east; sections 29, 30, 31, 32, and 33; sections 18, 19, 20, and all that part of section 7 and 17 lying south of Souin Lovie creek township 4, range 13 east; sections 13 and 24, and all that part of section 12 lying south of Souin Lovie creek, township 4, range 12 east."

At a subsequent meeting held on July 23, 1920, the board of education made an order adding the territory composing the Hicks school district to the Rose Hill consolidated school district. That order is in this language.

"Ordered by the board that the Hicks school embracing the following territory: Sections 1, 2 and 3, township 3, range 13, sections 25, 34, 35 and 36, township 4, range 13 east, be consolidated with Rose Hill consolidated school.

"Ordered that the proposed bond issue for ten thousand dollars and that the maintenance levy for Rose Hill consolidated school be approved."

It is argued that this attempted consolidation of these four rural school districts into one district is void because the entire territory is not described in the last order. We think the contention is without merit. The territory attempted to be incorporated into a consolidated district by each of these orders is described by government subdivisions. The last order describes perfectly the Hicks school district and recites that the territory so described be added to the Rose Hill consolidated school district. It therefore plainly appears from its minutes that the board of education attempted to make a consolidated school district out of four rural school districts by two separate orders made at different meetings; that by the first order three of these school districts were consolidated into one to be known as the Rose Hill consolidated school district; and that at a subsequent meeting the Hicks school district, properly described in the order, was added to the district theretofore created. Notwithstanding it would have been better in the last order to have described the entire district as made up of four districts, still in our judgment this was...