Gilbert v. Scarbrough

• Decision Date: 12 January 1931
• Docket Number: 29018
• Citation: 159 Miss. 679,131 So. 876
• Court: Mississippi Supreme Court
• Parties: GILBERT et al. v. SCARBROUGH et al

131 So. 876

159 Miss. 679

GILBERT et al. v. SCARBROUGH et al

No. 29018

Supreme Court of Mississippi

January 12, 1931

Division B

(Division B. Suggestion of Error Overruled Feb. 9, 1931.)

1. SCHOOLS AND SCHOOL DISTRICTS. Territory could not be taken from consolidated school district which had not operated for one session, but which had issued bonds, and added, to other districts, except on petition of majority of qualified electors of latter districts, and until liability to payment of bond issue was taken care of (Laws 1924, chapter 283 section 108).

Schools of special consolidated school district from which the territory was attempted to be taken had not been in operation for one session and no specific tax had been levied, but there had been fixed a charge against such territory as well as balance of district, for payment of school bonds of district, and charge ran over period of several years. Laws 1924, chapter 283, section 108, provides that, after consolidated school district levying tax has been in operation one session, it cannot have its boundaries changed except on petition of majority of qualified electors residing therein.

2. SCHOOLS AND SCHOOL DISTRICTS.

Defects in proceedings for transfer of territory from one consolidated district to other districts, in that no provision was made for liability to bond issue, and that there was no petition of electors of district to which territory was added, were jurisdictional.

3. SCHOOLS AND SCHOOL DISTRICTS.

Proceedings for transfer of territory from one consolidated school district to others, not snowing on face that jurisdictional requirements were met, were void and subject to collateral attack.

HON FRANK F. MIZE, Special Chancellor.

APPEAL from chancery court of Newton county, HON. FRANK F. MIZE, Special Chancellor.

Suit by S. E. Gilbert and others against M. J. Scarbrough and others. From a decree dismissing the bill, complainants appeal. Reversed and rendered.

Reversed, and judgment here for appellants.

Amis, Dunn & Snow, of Meridian, for appellant.

A petition signed by a majority of the school patrons in the territory to be added, asking that the territory described therein, be added to the consolidated school district, and that said territory assume its pro rata share of the outstanding indebtedness of the consolidated school district, must be filed with the board before it acquires jurisdiction.

Sections 108, 110, chapter 283, Laws 1924; Lamb v. Morgan, 152 Miss. 664.

It is necessary to have before the board of supervisors, a petition signed by a majority of the school patrons of the consolidated district to which the territory is asked to be added before the board of supervisors can make a valid order for an election in such a case.

Secs. 108-110, chapter 283, Laws of 1924; Myers v. Board of Supervisors of De Soto County, 125 So. 718.

An attempt undertaking to add the territory of a consolidated school district to the territory of another consolidated school district is void without first securing the dissolution of the second consolidated school district by the county school board, upon petition of the patrons and qualified electors in the manner provided in the statute.

Blue v. Bd. of Supervisors, 146 Miss. 471, 111 So. 737.

In creating a consolidated, or special consolidated school district, the county school board must first acquire jurisdiction of the res, by a petition describing the territory to be included therein; and cannot include in its order, any territory over which it has not thus acquired jurisdiction.

Board of Supervisors v. Young, 126 So. 469; Bryant v. Board of Supervisors, 133 Miss. 714, 98 So. 148.

The orders of the county school board are void, even if they be considered as an attempt to exercise the jurisdiction conferred by sections 38 and 108 of chapter 283, Laws 1924; (a) because the act of the school board, as evidenced by its orders, was manifestly not an attempt to define or alter the boundaries of Center Ridge Special Consolidated School District, but merely an attempt to add a part of the territory of that district to the Collinsville and Beulah Districts, without any attempt to define or restate the boundaries of Center Ridge Special Consolidated District, and (b) because the school board under the guise of merely defining and making alterations in the boundaries of a consolidated school district, cannot so act as to mutilate one district for the benefit of another.

Blue v. Bd. of Supervisors, 143 Miss. 471; Lamb v. Morgan, 152 Miss. 664; Bd. of Supervisors v. Young, 126 So. 469.

This suit is a direct and not a collateral attack on the orders complained of and may be maintained notwithstanding other remedies may exist.

McKinney v. Adams, 50 So. 474; Crawford v. Redus, 54 Miss. 700; Sivley v. Summers, 57 Miss. 712; Duncan v. Gerdine, 59 Miss. 550; Brooks v. Stogner, 114 Miss. 736; Belt v. Adams, 125 Miss. 387; Moody v. Dye, 125 Miss. 770.

The orders complained of are utterly void; and a judgment which is void for any reason may be attacked either directly or collaterally.

Theobald v. Deslande, 93 Miss. 208; Hemphill v. Hemphill, 34 Miss. 68; Plumber v. Plumber, 37 Miss. 188; Hinton v. Perry County, 84 Miss. 536.

C. E. Johnson, of Union, and M. P. Foy, of Decatur, for appellees.

Recitals in the petition do not control, but existing facts control, which the board itself inquires into and finds to exist. It is only required, that jurisdictional facts appear from the completed record.

Town of North Carrolton et al. v. Town of Carrolton, 73 So. 812, 113 Miss. 1.

The only limitation upon the authority of a county school board to change the boundaries of a consolidated district, is that such a change cannot be made after the district has levied a tax and has been in operation one session. The school board had the power and right to change the boundaries without limitation with or without petitions.

Amite County School Board v. Reese, 108 So. 439, 143 Miss. 880.

The only possible way to change a boundary is to exclude territory, or include territory, or both exclude and include territory.

Sections 72 and 73, Hemingway's 1927 Code, sections 90 and 91, Code 1906 provide methods of review of school boards acts, and for review of board of supervisors acts, and direct appeal is provided from board of supervisor's acts by section 80, Code 1906; Section 60, Hemingway's 1927 Code.

This is really a collateral attack and not permissible.

Dye v. Brewton Mayor, 92 So. 761, 119 Miss. 359; Liddell v. Noxapater, 92 So. 631, 129 Miss. 513.

If the record, not the petition only, shows jurisdictional facts, the attack cannot be made.

Liddell v. Noxapater, 92 So. 631, 129 Miss. 513.

OPINION

Anderson, J.

Appellants, trustees and certain school patrons and taxpayers of the Center Ridge special consolidated school district, filed their bill on behalf of themselves and all others similarly situated, against appellees Scarbrough, county superintendent of education of Newton county, the board of supervisors of the county, S. A. May, the clerk of the board of supervisors, and the county school board, seeking to have declared void certain proceedings of the board of supervisors and the county school board, by which a part of the territory of the special consolidated school district had been attempted to be detached therefrom, and added to two other consolidated school districts, and to enjoin the county superintendent and the clerk of the board from carrying into effect said proceedings. The cause was heard on bill, answer, and proofs, resulting in a final decree dismissing the bill. From that decree appellants prosecute this appeal.

The Center Ridge consolidated school district was formed in 1924 and the Liberty consolidated school district was formed in 1925; and both were operated as such until June 1, 1929, when the county school board, by an order, consolidated both of those districts, and...