Brooks v. Board of Sup'rs of Simpson County

• Decision Date: 09 February 1925
• Docket Number: 24608
• Parties: BROOKS et al. v. BOARD OF SUP'RS OF SIMPSON COUNTY. [*]
• Court: Mississippi Supreme Court

102 So. 777

137 Miss. 719

BROOKS et al. v. BOARD OF SUP'RS OF SIMPSON COUNTY. ^[*]

No. 24608

Supreme Court of Mississippi

February 9, 1925

Division B

APPEAL from chancery court of Simpson county, HON. T. P. DALE Chancellor.

Proceeding by the Board of Supervisors of Simpson County against H. L Brooks and others. From decree for plaintiffs, defendants appeal. Affirmed.

Affirmed.

A. W. Dent and J. P. Edwards, for appellants.

The first question presented by this record is whether the board ever acquired jurisdiction to make the order creating this road district and providing for the bond issue. If it did not, or if it failed to exercise its jurisdiction, as provided by this act, its proceedings are not merely irregular but absolutely void.

The petition, under this act, not only confers, but also limits the jurisdiction which the board can exercise. The order of the board in creating the district must be in conformity with the prayer of the petition; and likewise the petition must be in conformity with the law (the said act), otherwise the board does not acquire jurisdiction and the order creating the district under the act is void. Chapter 176, Laws of 1914, and chapter 277, Laws of 1920; Bowler v. Leflore Co., 85 Miss. 390; Ward v. Supervisors, 114 Miss. 457.

If the petition did not conform to the requirements of said act and amendments thereto, by "asking that such territory be permitted to come under the provisions of the act," the board would be acting without any proper petition as required by the act and the amendments thereto, and acquired no jurisdiction, and its orders would be void for this reason. Evans v. Wright, 126 Miss. 712; Wallace v. State, 104 Miss. 94; Acts 1914, ch. 176, sec. 2; Acts 1920, ch. 277, sec. 2; Greenberry v. Massey, 90 Miss. 121; Bell v. Sledge, 82 Miss. 749; Bigham v. State, 59 Miss. 529.

Section 170 of the Constitution provides that: "The board of supervisors shall have full jurisdiction over roads, . . . to be exercised in accordance with such regulations as the legislature may prescribe." Section 2 of the Act says: "That upon the presentation to the board . . . of a petition . . . asking that such . . . territory be permitted to come under the provisions of this Act." Section 2 of chapter 277, Laws of 1920, provides the same thing. This chapter amends chapter 176 of the Laws of 1914, as to some sections, but not as to section 2.

The Constitution means what it says; the legislature meant what it said in prescribing the regulations for the board to follow. The board is required by the Constitution to follow the regulations prescribed by the legislature, and chapter 179 of the Laws of 1914, and amendments thereto are the regulations so prescribed, and a departure therefrom by the board throws the machinery out of motion and therefore renders any order passed not irregular but void from the beginning. Board v. Weatherford, 114 Miss. 270; Craft v. Desoto Co., 79 Miss. 618; Hawkins v. Caroll Co., 50 Miss. 735; Simpson County v. Buckley, 85 Miss. 713; Coleman v. Bolivar County, 71 Miss. 832.

A petition for the establishment of a highway should contain all the facts required to be stated therein by the act in order to confer jurisdiction. 37 Cyc. 71, and cases there cited. In Williamson v. Berry, 12 L.Ed. 1190, the court stated that "jurisdiction may be in the court over the cause, but there may be an excess of jurisdiction asserted in its judgment" and held that, in such case, the judgment would be coram non judice and void.

The same thing was held in United States v. Walker, 27 L.Ed. 929, where the supreme court determined that the supreme court of the District of Columbia had "exceeded its jurisdiction and its judgment was therefore void." Our own court, in Insurance & Realty Co. v. Fire Ins. Co., 113 Miss. 545, applying the principles made the statement that "the thing, the res, must first be brought under the control of the court by proper process; the judgment can only go against the thing under the control of the court." It appearing in that case that the thing was "not under the control of the court," it further stated that "the court had no jurisdiction."

The difference between judgments that are void and subject to collateral attack, and those which are merely irregular and immune therefrom, is well explained in Theobold v. Deslonde, 93 Miss. 208, and our court there, distinctly shows that where a court has acted without or beyond its jurisdiction its judgment being void is subject to attack anywhere. This is indeed elementary. Freeman on Judgments (3 Ed.), sec. 117; Lester v. Miller, 76 Miss. 309; Harris v. State, 72 Miss. 960; Lake v. Perry, 95 Miss. 573; Ex parte Burden, 92 Miss. 14; Garner v. Webster County, 79 Miss. 568.

In 15 R. C. L. 604, sec. 43, it is stated that a judgment will be void which is a departure from the pleadings, and based upon a case not averred therein. If, therefore, the board had taken on itself to amend the petition at bar so as to make it conform to its orders in creating and organizing the district, its proceedings would still be invalid, since it would have no right to make such an amendment itself (Trustees v. Covington County, 115 Miss. 133), and we insist that it could not do by indirection what it could not do directly. Hamilton v. The Board, 96 So. 466.

In Bank v. Martin, 9 S. & M. 621, the court observes that "an order, judgment, or decree is void when rendered by a court which has no jurisdiction of the subject-matter, or of the parties, both must concur to make the proceedings valid."

No such petition as the order recites has ever been filed or presented to the board and for this reason the board was without jurisdiction under this special act, to act, without the proper petition, as the legislature required it to have, and the order is therefore void. Comer v. Johnson, 111 Miss. 208.

In the case of Borrum v. Purdy Road District, 95 So. 679, Judge ETHRIDGE refers to the fact that the whole record must be examined and that the petition constitutes a part thereof. In Duke v. The State, 57 Miss. 231, an appointment of a guardian was held by the court, to be void, not because of anything set forth in the order of appointment, but because the guardian's bond (a part of the record) disclosed the fact that the ward lived in another county, and the court, therefore, did not have jurisdiction to make the appointment.

In Smith v. Hardware Co., 83 Miss. 654, our court pronounced a certain judgment to be void because it was not warranted by the petition filed in the case, but the court had to look to the petition in order to ascertain this fact. Dogan v. Brown, 44 Miss. 235. In 15 R. C. L. 96, it is stated that "when a presumption is to be drawn from a record the whole record must be inspected."

Can the court read into the petition that part of the order where the order recites: "Asking that the proposed territory be permitted to come under the provisions of this act?" If the court can do that, then why did the legislature require a petition to be presented "asking that the proposed territory be permitted to come under the provisions of this act?"

There can, we respectfully submit, be no half way ground -- the proceedings are either valid or invalid; the petition presented to the board either asked that the territory proposed come under the act or it did not ask it, if it asked it, the bonds are valid and your honor should so decree, but on the other hand, if the petition presented did not ask that the territory be permitted to come under the act, we respectfully insist that the order is void and the bonds are invalid and should not be approved by this court. Kock v. Bridges, 45 Miss. 258; Monroe County v. Mingo, 127 Miss. 716; Gipson v. Currie, 83 Miss. 253; Ellis v. Tillman, 125 Miss. 686; Planters Mercantile Co. v. Braxton, 124 Miss. 490.

It may be that the board will rely on the cases of Dye v. Mayor, 119 Miss. 359; Lincoln County v. Wilson, 125 Miss. 840, and Lidell v. Noxapater, 129 Miss. 522, but none of these authorities militate in any wise against our position.

It is well settled in this state by all the authorities that if the proceedings are not valid an election resulting favorably to the issue, no matter how great the majority may be, cannot render the bonds valid. Lester v. Miller, 76 Miss. 310; Clarksdale v. Broaddus, 77 Miss. 667; Barrett v. School District, 123 Miss. 378; Bryant v. Board of Yalobusha County, 98 So. 148.

Hilton & Hilton, for appellee.

We wish first to answer some of the arguments of counsel for appellant and call attention to some of the cases they referred to Bowles v. Leflore, 85 Miss. 390, is quite a different case in the facts. That case is one, where the board of supervisors, upon a petition to have a stock law put in force in the entire county, passed an order putting the law in force in only part of the county.

Evans v. Wright, 126 Miss. 713, does not sustain his argument because the Evans case states that the board of supervisors, being a court of limited and special jurisdiction, the requisite jurisdictional facts must appear on the face of the record. In the case at bar the order of the board of supervisors contained every jurisdictional fact necessary to create the separate road district. And, as a matter of fact, the Evans case is a good authority for appellee in this case.

They also, cite Wallace v. State, 104 Miss. 94. This authority is favorable to appellee as it announces the same principle as above. They, also, cite the case of Greenberry v. Massey, 90 Miss. 121, on the above proposition. We are unable to appreciate the application of this case to the argument of counsel for appellant in the case at bar, because it has reference to a suit on an open account before a...