Evans v. Wright

• Decision Date: 11 July 1921
• Docket Number: 21410
• Citation: 126 Miss. 703,89 So. 226
• Court: Mississippi Supreme Court
• Parties: EVANS et al. v. WRIGHT, Sheriff

89 So. 226

126 Miss. 703

EVANS et al. v. WRIGHT, Sheriff

No. 21410

Supreme Court of Mississippi

July 11, 1921

1. SCHOOLS AND SCHOOL DISTRICTS. Curative act held to validate all districts which had exercised franchise for two years before passage.

Chapter 256, Laws 1918, providing that "all municipal and unincorporated separate school districts, and all consolidated school districts, which have exercised the privileges and franchises of a school district for a period of two years shall in all cases be conclusively presumed to have been legally established and organized," is distinctly curative in its nature and effect, and the passage of this act had the effect of validating the organization of all school districts which had exercised the privileges and franchises of a school district for a period of at least two years prior to its passage.

2. SCHOOLS AND SCHOOL DISTRICTS. Levy of district tax must be in particular manner prescribed by statute.

In the levy of the tax authorized under chapter 186, Laws 1916 (section 7364, Hemingway's Code), since the board of supervisors exercises only a limited and special jurisdiction, the power must be exercised in the particular manner prescribed by the statute, and the requisite jurisdictional facts must appear on the face of the record.

3. SCHOOLS AND SCHOOL DISTRICTS. Electors held to have sole power to initiate levy of tax on property district.

Under chapter 186, Laws 1916 (section 7364, Hemingway's Code) the qualified electors of the school district have the sole power to initiate a lexy of a tax on the property of the district, and where no petition of a majority of the qualified electors requesting the levy is filed, the board of supervisors is without jurisdiction to levy the tax.

HON. J G. MCGOWEN, Chancellor.

APPEAL from chancery court of Calhoun county, HON. J. G. MCGOWEN Chancellor.

Suit by W. S. Evans and another against J. W. Wright, Sheriff and Tax Collector, for an injunction. From a decree dissolving the injunction and dismissing the bill, complainants appeal. Affirmed in part, and reversed in part, and injunction reinstated.

Decree affirmed in part and reversed in part.

W. J Evans and J. H. Ford, for appellants.

In our view of this case, if we should admit everything counsel says in his brief, it would not save his case. If we should admit for all purposes of the law under the act above mentioned, this district must be taken and held conclusively to have been regularly organized, yet the bill must be sustained because it affirmatively appears, and is not and cannot be denied, that the order making the levy of the taxes was void because it did not recite the jurisdictional facts. It appears as Exhibit C to the bill. That proposition was presented with authorities in our original brief.

It was alleged in the bill, and not denied in the answer, that the lands of the appellants belong to a previously organized and existing and operating separate school district, which had levied a tax to be collected from their property for that year. While this bill was brought in the name of individuals, it is really a contest between these two separate school districts, the latest organized being about to destroy the first. A separate school district, when once established can be altered and its boundaries changed by the school board only in the same manner they, are authorized to be established, that is, by majority of the qualified electors, section 7333, Hemingway's Code, section 4513, Code of 1906, authorizes the school board to define the boundaries and make alterations therein prior to the first day of August, of all school districts outside of the separate school districts, and the legislature has of late passed acts providing how such districts may be abolished, requiring a petition of two-thirds of the patrons for that purpose. Chapter 174, Laws 1920; Chapter 244, Laws 1918. Nowhere do we find that the school board has the power to alter the boundaries of a separate school district and we apprehend that this could not be done by overlapping part of this territory of an existing district with a new district being subsequently organized, or otherwise than in the same method provided by law for its creation in the first instance, if at all. The case of State v. Watts, 78 So. 515, deals solely with a rural consolidated school district, and is not applicable to a separate school district. Keeton v. Board of Supervisors, 77 So. 906.

So it seems plain to us that the district here could not exist in any view as to the property of these appellants, because this territory was already embraced within the previously organized existing and acting Duncan Hill separate school district, which had not been abolished.

It is therefore obvious that a district cannot be overlapped altered, or changed by the establishment of another district." Gaulden v. Bellotte (Fla.), 83 So. 866.

The authorities to the effect that the statute pleaded as a defense in this case cannot be given a retroactive effect are cited in our brief in chief. Counsel is mistaken in his idea that our argument along that line was based solely upon the theory that the statute is one of limitation. Of course, we think it is such and not a curative statute, because a curative statute would have no need to make its enforcement depend upon operation for a certain period of time, but would simply need to state that such districts were valid regardless of the validity or regularity of the organization. The rule above referred applies to any kind of a statute, and we think applies to this case with full force. Counsel says that the legislature might have originally made it lawful to establish a separate school district by the identical proceeding that was had in the establishment of the district in question and argues from that that it is a curative statute. We don't know about that, but it did not see proper to do that and instead made its validity depend upon its operation for the limitation period of two years, thus hedging it about with all the rules applicable to such a statute. Whether it is also curative in its intentions or not, it is certain that it is a statute of limitation in its provisions as well as in its effect. That it was also intended as a statute of limitations by the legislature is as clear as if it had said: "All suits against the validity of separate school districts shall be brought within two years from their organization and not after."

Part of the period of the two years here set up in defense accrued after the bill was filed, to wit, from February 1 to March 21, the date when the law was passed. The right to enjoin the collection of taxes invalidly imposed, or levied by a void district, or to defend against the action of an invalid district, was a vested one, and could not be taken away by an act passed after suit filed.

The striking from the record the stenographer's notes affects only the proposition of whether the district had acted as such for two years prior to the filing of the bill, which was an affirmative matter set up in the answer. All other facts are pleaded in the bill and not denied by the answer.

So, we reiterate that said district was void and without authority to collect the tax, first, because the territory involved was part of the previously organized existing and operating Duncan Hill separate school district; second, the school board had no power to alter or change the boundaries of said district after August 1, or at any other time, save on petition as required for the organization of a separate school district in the first instance; third, the jurisdictional facts are not shown in the order, to have existed, and we say that the act, of the legislature is not valid as against the appellants and no defense here for the reasons set forth in this and our original briefs; and further, that regardless of whether the organization was void for the reasons assigned or whether the act above referred to made the district valid, still the order of the board of supervisors attempting to take the levy of the tax enjoined was void because of the lack of the precedent jurisdictional fact, and therefore the decree of the lower court should be reversed and decree rendered here making the injunction perpetual.

H. H. Creekmore, for appellee.

Section 7332 of Hemingway's Code is directory only and the school board had authority to enter the order establishing the New Liberty separate school district at the time the order was made. State v. Watts, 78 So. 515.

The other matters complained of in reference to the creation of the separate school district are that the district as organized contained less than sixteen square miles and that the order does not recite that there was a valid petition of the majority of the qualified electors of the district....