Dean v. Board of Sup'rs of De Soto County

• Decision Date: 31 March 1924
• Docket Number: 23746
• Citation: 135 Miss. 268,99 So. 563
• Parties: DEAN et al. v. BOARD OF SUP'RS OF DE SOTO COUNTY et al
• Court: Mississippi Supreme Court

99 So. 563

135 Miss. 268

DEAN et al. v. BOARD OF SUP'RS OF DE SOTO COUNTY et al

No. 23746

Supreme Court of Mississippi

March 31, 1924

Division A

Suggestion of Error Overruled April 28, 1924.

APPEAL from circuit court of De Soto county, HON. GREEK L. RICE Judge.

Mandamus by S. B. Dean and others against the board of supervisors of De Soto county and others. Judgment of dismissal, and plaintiffs appeal. Reversed and judgment rendered.

Reversed.

Burch, Minor & McKay, for appellants.

The organization of this district began at the May, 1917, term of the board, and such proceedings were had as that this court in Board v. Dean, 120 Miss. 334, affirming the judgment of the circuit court, formally adjudged that the district was legally organized and directed the issuance of mandamus requiring the board to issue the bonds. The issuance of bonds was delayed for one reason or another. The board at its February, 1923, term, passed a resolution declining to issue the bonds, but giving no reasons therefor. The district, as described in the order organizing it, embraced one hundred ninety acres of land lying across the river in Tate county. The learned circuit judge was of the opinion that, under the decision in Borroum v. Purdy Road District, 131 Miss 738, this fact invalidated the whole district. We concede, of course, that so much of the order organizing the district as embraced this one hundred ninety acres in Tate county is a nullity, but the question here is, whether that invalidates the whole proceeding.

Our propositions are these:

(1) The rule of de minimus. Our district embraces fifty-four thousand one hundred eighty acres and the part of it in Tate county is only one hundred ninety acres. This is just about one-third of one percent and is too small to have influenced the judgment of the voters or the board of supervisors.

(2) Invalid portion of order creating district may be eliminated without affecting remainder. The situation just mentioned is analogous to the case in which a statute is being assailed as unconstitutional because one section, out of a number of sections, violates the constitution. "A judgment may be good in part and bad in part--good to the extent that it is authorized by law, and bad for the residue." 15 R. C. L. 843; Semmes v. U.S. 91 U.S. 21.

(3) Order creating district should be construed as embracing only De Soto county lands. The resolution of the board creating this district referred to the lands lying in De Soto county and the intention of all the parties was that only De Soto county lands were embraced In this connection the well-known rule respecting the construction of deeds is applicable--"In order to ascertain the intention of parties with respect to properties conveyed, reference may be had to state of facts as they existed when the instrument was made and to which parties may be presumed to have had reference." 18 C. J. 278; Welborn v. Board, 130 Miss. 321; O'Herrin v. Brooks, 67 Miss. 255.

Burch, Minor & McKay, for appellants, in response to questions of the court.

I. Are the present members of the board of supervisors of De Soto county in privity, within the res adjudicata rule, with their predecessors in office against whom the former judgment was rendered?

Yes. The general rule has thus been stated: "An incumbent of an office is in privity with his predecessors in the same office, so as to be concluded by a judgment for or against his predecessor in any suit touching the powers, privileges, or duties of the office." 23 Cyc. 1270; Vance v. Wesley (C. C. A.), 85 F. Rep. 157; New Orleans v. Bank, 167 U.S. 388-9; Society v. Hagerman, 232 Mo. 693; Starr v. Railroad, 110 F. Rep. 3; Hobbs v. Germany, 94 Miss. 469; Finch v. Dobbs, 112 Miss. 73; State v. Board, 162 Ind. 580; Holsworth v. O'Chandler, 49 Neb. 42.

II. Is a judgment for or against a taxing district rendered in a suit brought by one of the taxpayers of the district and which adjudicates matters of general interest to the whole district conclusive as to matters adjudicated for or against all of the taxpayers of the district?

Yes. The consequences of a negative answer to this question prove the unsoundness of such an answer. There are many resident citizens of the road district in question who are interested in it. Can it be that when this court has decided that the present resident citizens--who are suing on behalf of themselves and all other parties interested--cannot successfully maintain the suit, another citizen of the same district may commence the litigation all over again? And upon the failure of such second suit can a third citizen, or set of citizens, begin the litigation again? Would the court, in either of the last two cases, refuse to apply the rule of res adjudicata? Suits of the kind here involved are always brought by some interested citizen. The statute (section 3231, Code of 1906) provides that a petition for a mandamus may be filed "by any private person who is interested." The authorities are in accord. City v. Walker, 154 Ala. 232; People v. Harrison, 253 Ill. 625; Scotland County v. Hill, 112 U.S. 183. See, also, Ashton v. Rochester, 133 N.Y. 193, and Sauls v. Freeman, 24 Fla. 223; 23 Cyc. 1246; Johnson v. De Pauw University, 116 Ky. 671; Stallcup v. Tacoma, 13 Wash. 141; Sabin v. Sherman, 28 Kan. 289; Gallaher v. Moundsville, 34 W.Va. 730.

III. Does the res adjudicata rule apply when the effect thereof will be to permit an illegally organized public, or quasi-public organization to continue to function?

With great respect, does not the question above quoted state an impossible hypothesis? In other words, can we assume that this quasi-public corporation was illegally organized? For who is there to say there was an illegal organization? A court of last resort and of competent jurisdiction has definitely decided that the organization was legal. Board v. Dean, 120 Miss. 334. That decision is beyond recall; it is as fixed as the laws of the Medes and Persians. Neither this court nor any other can adjudge that the decision in this case was wrong. Of course, it is within the power of the court to say, in a case involving a different road district, that the doctrine there announced should be overruled and a new and different rule can be applied to subsequent cases. But when this court, having jurisdiction of the parties and of the subject-matter, has said that the organization was legal, can this or any other court assume or now adjudge that it was illegal? Of course, if it should be shown that there was fraud in the prior case, the judgment could be set aside. Or it could be set aside if it should be made to appear that the court, in Board v. Dean, had no jurisdiction of the subject-matter or of the parties. But there is no suggestion of fraud in that decision and no denial of the fact that the court there had jurisdiction of the parties and the subject-matter. It had "the power to hear and determine." It exercised that power and there is no tribunal which may say it exercised the power wrongly.

The law is what the duly authorized tribunal has declared it to be. Our contention here, therefore, is that there can be no assumption or adjudication that our district was illegally or improperly organized, for there is on record in this court a judicial declaration, both by the circuit court and this court in affirmance thereof, that this district was legally organized. That holding was in pursuance of the recognized rule, which has already been referred to, which gives effect to the intention of the parties in construing doubtful language as to boundaries.

The adoption of a new rule for subsequent cases can-not affect the validity of the rule applied in a prior case. Ashton v. Rochester, 133 N.Y. 187; Sauls v. Freeman, 24 Fla. 223; Wall v. Wall, 6 Cush. (Miss.) 413; Jeter v. Hewitt, 22 How. (U.S.) 352.

There is no such thing as a proceeding being valid at one time and void at another. If the organization of our district is void now it has always been so. Let us suppose that, in obedience to the mandamus which this court. in Board v. Dean, 120 Miss. 334, ordered to be issued, the board had issued the bonds of this district, the road had been constructed and the bonds had passed into the hands of innocent holders. In a suit to enjoin the levy of a tax to pay these bonds, the bondholders, intervening, would set up the fact that the bonds had been issued pursuant to a mandamus of this court. In such a situation it could not possibly be held that the bonds were void. Yet the present situation is in no essential respect different. For if the organization of this district was ever void it is still so. It cannot be valid in some situations and invalid in others. What was adjudicated in former case? In the first case of Dean v. Board, the order of the circuit judge, after overruling the demurrer, definitely adjudged that this district was legally formed. Then and now, of course, the law was that the board of supervisors of De Soto county had no jurisdiction to embrace in the road district lands lying outside the county. The small portion of land lying beyond DeSoto county was never a part of this district.

This contention is in line with the uniform current of authority in this state and elsewhere, that in construing an instrument defining boundaries, the court will disregard technical rules and so construe the instrument as to give effect to the intention of the parties and render it valid rather than disregard the intention of the parties and make the instrument invalid.

F. C. Holmes, for appellees.

We shall devote our consideration first to the proposition as to whether the incorporation of some one hundred and ninety acres in Tate county, Mississippi, does invalidate the district. If it does, then the...