Green v. Sparks

• Decision Date: 04 November 1935
• Docket Number: 31830
• Citation: 174 Miss. 71,163 So. 895
• Court: Mississippi Supreme Court
• Parties: GREEN, SHERIFF, ETC., v. SPARKS

163 So. 895

174 Miss. 71

GREEN, SHERIFF, ETC., v. SPARKS

No. 31830

Supreme Court of Mississippi

November 4, 1935

Division A

1. SCHOOLS AND SCHOOL DISTRICTS.

Rule that proceedings of county school board cannot be collaterally attacked is limited to orders or proceedings valid on their face, and all orders void on their face are subject to collateral attack.

2. SCHOOLS AND SCHOOL DISTRICTS.

Order of county school board, attempting to create special consolidated school district, which failed to show that notice of meeting for such purpose was served by mailing to members of board and by publication, or that proposed district contained required number of pupils, held void and subject to collateral attack in proceeding to enjoin collection of special taxes levied on property of district especially where order was dated two days prior to date fixed in notice for special meeting (Code 1930, sections 6584, 6653).

HON JAS. A. FINLEY, Chancellor.

APPEAL from the chancery court of Prentiss county HON. JAS. A FINLEY, Chancellor.

Suit by Jesse L. Sparks against A. S. Green, Sheriff and Tax Collector. From a decree overruling a demurrer to the bill of complaint, defendant appeals. Affirmed.

Affirmed.

T. A. Clark, of Iuka, for appellant.

Appellant takes the position that the, court committed error in overruling his demurrer to the original bill for the reason it was strictly an action by appellee against appellant to enjoin the collection of a special tax levied against the property of appellee in the BHN special consolidated school district. The order of the board of supervisors levying the proposed tax on the property of the school district recites all the jurisdictional facts necessary to the validity of the order.

Appellant takes the position that this is a collateral attack and that the legality of the organization of the school district cannot be inquired into or attacked collaterally in a proceeding to, enjoin the collection of a special tax.

Morgan et al. v. Wood, Tax Collector, 106 So. 435; Dye v. Mayor of Sardis, 87 So. 761; Little v. Noxapater, 92 So. 631; Borroum v. Perdy Road District, 95 So. 637.

E. K. Windham, of Booneville, for appellee.

The only question presented by this appeal is whether or not the validity of a special consolidated school district can be collaterally attacked in a proceeding to enjoin the collection of a special tax levied against the district.

Appellant relies upon the case of Morgan et al. v. Wood et al., 106 So. 435, to sustain his contention that the organization of the district cannot be collaterally attacked. The cases cited in support of the holding in the above case make it clear that the rule there stated is applicable only where the invalidity of the district is attempted to be shown by matters de hors the record, and has no application whatever to the case at bar, for the record here affirmatively shows that the acts of the school board in attempting to create the BHN special consolidated school district are void.

Caston et al. v. Wilkinson County School Board et al., 154 So. 714.

Where the order creating the district is void it may be collaterally attacked.

Gilbert et al. v. Scarbrough et al., 131 So. 876; Belden Consolidated School District et al. v. Lee County et al., 133 So. 225; Borrum et al. v. Purdy Road District, 95 So. 677.

OPINION

Cook, J.

Appellee Jesse L. Sparks, filed his bill of complaint in the chancery court of Prentiss county seeking to enjoin the sheriff and tax collector of that county from collecting a special levy of taxes imposed by the board of supervisors on all the taxable property of said county which is embraced within the boundaries of the purported BHN special consolidated school district. The bill of complaint charged that the acts and proceedings of the county school board in attempting to create the said special consolidated school district were illegal and void, and consequently that the proposed assessment and levy of taxes against appellee's property located in said district was likewise illegal and void. It was further charged that if the said special consolidated school district was ever legally created, the proceedings of the school board creating the district had been suspended at the time of the levy of said taxes, by virtue of a writ of certiorari with supersedeas issued to the school board, which removed said proceeding to the circuit court, where it was then pending. In the proceeding in the circuit court the writ of certiorari was quashed on the ground that the order and resolutions of the...