Campbell v. Humphreys County

• Decision Date: 22 October 1923
• Docket Number: 23533
• Court: Mississippi Supreme Court
• Parties: CAMPBELL v. HUMPHREYS COUNTY

97 So. 722

133 Miss. 410

CAMPBELL v. HUMPHREYS COUNTY

No. 23533

Supreme Court of Mississippi

October 22, 1923

Division A

Suggestion of Error Overruled Nov. 19, 1923.

APPEAL from chancery court of Humphreys county, HON. E. N. THOMAS Chancellor.

Suit by Humphreys county against W. E. Campbell. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

Barnett & Perrin, for appellant.

This is the second appeal in this case. The opinion in the first appeal is reported in 128 Miss. page 749. This appeal was by Humphreys county from a decree sustaining a demurrer to its bill against W. E. Campbell, who is now appealing.

The original certificate of the trustees of the sixteenth section was put in evidence, and it showed that the certificate not only had been sworn to, but had been signed by the trustees. The minutes of the board of supervisors of Yazoo county, as amended by the clerk of the board, the same person who was its clerk when the lease to appellant was ordered, were put in evidence, and as amended showed that the certificate was both sworn to and signed.

We do not dispute that the authority to direct and approve the lease should affirmatively be shown, but we do insist that this showing, in the matter of the lease of sixteenth sections, does not depend upon the certificate of the trustees appearing upon the minutes, and that its existence can otherwise be shown in support of the power of the board of supervisors to act. The steps to be taken, as required by the law, in the leasing of sixteenth sections are as follows:

1. The notice to the heads of families residing in the township. 2. The assent of those present at the meeting to a lease for a term longer than one year. 3. The certificate of the trustees of what had been done by them and by the heads of families in meeting assembled, sworn to by the trustees, and also signed by them, as held in the opinion. 4. The transmission of the certificate to the board of supervisors. 5. The direction by the board to the county superintendent to make the lease. 6. The making of the lease by the county superintendent "with the approval of the board of supervisors, and upon consent being obtained as provided in section 4711."

Second. The original minutes of the board of supervisors of Yazoo county, under an order of the chancellor, have been made a part of the record on this appeal.

Third. The minutes of the board of supervisors of Yazoo county were amended by its clerk who was, at the time the lease was made and has been continuously since, the clerk of the board. The court below was of the opinion that the amendment could not be by it considered.

Fourth. The certificate is claimed not to be sufficient for the reason that the jurat of the officer does not show that he acted within his territorial limits.

Fifth. The court below evidently was of the opinion that the evidence showed that proper notice of the meeting of the hands of families had been given and that such meeting was properly held, otherwise the court would not have allowed the appeal. If the proper notice were given the assent of a majority of those present at the meeting was all that was required. Hawkins v. Board of Supervisors, 50 Miss. 735, 753.

Sixth. It was intimated in the opinion of this court on the former hearing that the certificate might be considered incomplete because of a blank space in it, left for the name of Smith, the third trustee.

Seventh. There is one other point made by the bill not alluded to above, and that is that appellee, as lessee executed no notes for the rent to be paid.

We submit that in signing and accepting the lease, the appellee in effect executed notes.

This requirement of notes has been embodied in our legislation for many years, probably for the reason that at one time it was questionable, that a lessee accepting a lease, made himself personally liable. Lee v. Newman, 55 Miss. 365. In Washington v. Soria, 73 Miss. 665, the case of Lee v. Newman, was overruled as to this feature, and it was held by accepting an instrument which stipulated for future payments, the person accepting became personally bound therefor. See Masons v. Priebatsch, 83 Miss. 120, as to what is a note.

Eighth. It is further objected that W. E. Campbell, mayor of Silver City, could not take the affidavit of the trustees as he was an interested person, the interest being that he desired to lease the land.

Ninth. The bill charges that two of the trustees were related to Campbell by affinity. The certificate to be sworn to was to be made by the trustees in their official capacity, and not as to a transaction in which they were personally concerned. 1 Am. and Eng. Enc. of L., 493, 494.

H. F. Jones and Green & Green, for appellee.

A fraud perpetrated upon the board of supervisors of Yazoo county to which W. E. Campbell was a party, and from which W. E. Campbell cannot profit. By section 4706, of the Code, it is provided that it is the duty of the superintendent of education, with the approval of the board of supervisors, and upon consent being obtained as provided in section 4711, to lease the sixteenth section lands.

This was no authority whatever for Campbell to surrender his lease--See sections 322 and 3578 for the sole power to acquire land. He is not entitled to have a reversal of the cause even though there be error therein. Hill v. State, 64 Miss. 431. This court correctly held those steps conditions precedent--jurisdictional, to the validity of the lease prescribed in section 4711.

Counsel's contention as to the validity of the execution of the certificate not here sustainable. If the consent provided by section 4711 has not been obtained, even though the minutes should so show, the superintendent cannot make the lease. This rule of the court is absolutely in line with Wallace v. Tucker, 104 Miss. 94; Adams v. Bank, 103 Miss. 753; Hinton v. Perry County, 84 Miss. 546; Garner v. Webster County, 99 Miss. 565; Craft v. De Soto County, 79 Miss. 618; Bolivar County v. Coleman, 71 Miss. 835; Henry v. Sunflower County, 71 So. 742; Sexton v. Coahoma County, 86 Miss. 384.

The sixteenth section in controversy is now in Humphreys county and therefore the board of supervisors of Yazoo county at the date of this assumed entry did not have any power thereover, and an amendment of its minutes would be void because located in another county.

The certificate is not sufficient for the reason that W. E. Campbell did not show that he acted within his territorial authority. The trustees' duty was judicial in the premises and therefore beyond the power of the trustees to function otherwise than in accordance with the statute.

The statute expressly declares that the trustees shall act and contains no reference to a majority of them in a matter of this character where they stand as trustees. Two of the trustees were closely related to Campbell by affinity, and they were the judges who were called upon to protect the public and yet, in this cause, they did not realize for these children, even approximately a small portion of that to which the children were lawfully entitled.

The law of the case. Waiving the fundamental rights developed on the hearing, nevertheless further...