In re Validation of Bonds of McNeill Special Consol. School Dist

• Citation: 185 Miss. 864,188 So. 318
• Decision Date: 24 April 1939
• Docket Number: 33676
• Court: Mississippi Supreme Court
• Parties: In re VALIDATION OF BONDS OF MCNEILL SPECIAL CONSOL. SCHOOL DIST

188 So. 318

185 Miss. 864

In re VALIDATION OF BONDS OF MCNEILL SPECIAL CONSOL. SCHOOL DIST

No. 33676

Supreme Court of Mississippi, Division B

April 24, 1939

APPEAL from the chancery court of Pearl River county HON. BEN STEVENS, Chancellor.

Proceeding in the matter of the validation of bonds of McNeill Special Consolidated School District, wherein one Green and others filed objections to the bond issue. On appeal from judgment validating the bonds. Affirmed.

Affirmed.

J. M Morse, of Poplarville, for appellant.

The mandamus suit was the proper remedy.

Section 2348, Code of 1930; Walthall County case, 97 Miss. 599, 54 So. 257; Native Lbr. Co. v. Harrison County, 91 Miss. 562, 44 So. 841.

Section 6198 of the Mississippi Code of 1930 provides how the commissioners may purge the poll books and the registration books and provides that two are necessary to constitute a quorum but it requires the concurrence of at least two commissioners to render a decision.

Calvert v. Crosby, 163 Miss. 177, 139 So. 608; Carver v State, 177 Miss. 54, 170 So. 643.

We contend that the action of one of the election commissioners with an outsider, after the election commissioners had adjourned and only one day prior to the election in striking from the poll books and registration books the names of the qualified electors was an illegal act.

Did the Chancery Court of Pearl River County have jurisdiction of the matter when the mandamus suit was properly filed in the Circuit Court of Pearl River County? See the case of Pearce v. Mantachie Consolidated School District, 134 Miss. 497, 90 So. 134. In that case the court held that by setting up a validation proceeding in the Chancery Court it does not deprive the Circuit Court of jurisdiction under provisions of the law, and that the law contemplates that validation proceedings may be taken after the proper court has entered its decree and no appeal has been taken therefrom.

The case of Faison v. City of Indianola, 156 Miss. 872 127 So. 558, holds that circuit court first acquiring jurisdiction must be permitted to determine all questions without intrusion by chancery court.

We respectfully contend to the court that a grave injustice has been done to the qualified electors of this special consolidated school district in illegally striking their names from the registration and poll books. That by this proceeding the trustees of the school district were placing a lien upon the property located in the district, and to permit an illegal spoliation of the registration books and poll books and in this manner illegally placing a lien upon the property located in said school district. That to take an appeal from the board of supervisors in adjudicating that the bond issue was carried would have been futile and of no effect, that the board of supervisors could only enter the order which the election commissioners sent up, towit, that the election had carried, when in truth and in fact the same had not carried. That the proper method to reach this was as was done in this case, within the time provided by law, file a mandamus suit to compel the election commissioners to properly count the votes, and our court has so held.

Walthall County case, 97 Miss. 599, 54 So. 257; Sec. 2348, Code of 1930.

Hathorn & Williams, of Poplarville, for appellee.

It is the contention of appellee that the objections setting up the mandamus proceeding is a collateral attack upon the findings and actions of the election commissioners and the board of supervisors of Pearl River County and upon the validation proceeding herein; that the proper way to have raised objections of the nature or kind presented by said objections was by direct appeal from the order of the board of supervisors to the circuit court, in the manner provided by Section 80 of the Code of 1906, Section 61 of the Code of 1930.

Johnson v. Bd. of Suprs., Yazoo County, 113 Miss. 495, 74 So. 321; Bd. of Suprs., Rankin County v. Lee, 147 Miss. 99, 113 So. 194; Green v. Hutson, 139 Miss. 471, 104 So. 171; Harvey v. Covington County, 161 Miss. 765, 138 So. 403; Pearce v. Mantachie Consolidated School Dist., 134 Miss. 497, 99 So. 134; Faison v. City of Indianola, 156 Miss. 872, 127 So. 558.

The Walthall County case, 97 Miss. 599, 54 So. 257, so strongly relied on by appellants, and the case of Native Lbr. Co. v. Harrison County, 91 Miss. 562, 44 So. 841, do not conflict with the authorities cited and quoted from by us, for the reason that (1) there was no remedy by direct appeal to the circuit court in those cases, and (2) the court was careful to point out in the Walthall County case that the election commissioners failed and refused to canvass and return the Slade box, but totally rejected it. The court also pointed out in that case that if even a partial canvass of the Slade box had been made the court would have had no authority to compel the election commissioners to reassemble and recanvass the returns.

In the case at bar we have the certificate of the election commissioners, made an exhibit to the objections, which certifies that the election commissioners met, as required by law, before the election, and determined that the number of qualified electors residing in said school district was 164, and from their canvass of the returns that a majority of the qualified electors residing in said district voted in favor of said bond issue. It is, therefore, seen that this is not a case of the election commissioners failing and refusing to purge the poll books and canvass the returns, but upon the contrary it is a case in which appellants seek to have the election commissioners reassemble and repurge the poll books and recanvass the returns and make such changes upon the poll books and in the returns as appellants think should be made.

We respectfully submit that no error was committed by the chancellor in sustaining appellee's motion to strike and in entering the decree validating the bonds, and that case should be affirmed.

OPINION

Ethridge, P. J.

This is an appeal from the judgment of the Chancery Court of Pearl River county, validating a $ 10, 000 bond issue of the McNeill Special Consolidated School District. A petition was filed, as shown by the order of the Board of Supervisors, signed by twenty percent of the qualified electors, praying for the issuance of $ 10, 000 of bonds of the said school district, to be used for building and equipping a new school building in the district. There is no complaint in regard to the sufficiency of the petition to the Board, nor of the action of the Board in ordering the election on the question of the issuance of said bonds, this having been done in accordance with the requirements of the law.

The election having been ordered, the election commissioners of the county met and revised the registration and poll books gave notice of the election, and certified their action to the Board of Supervisors; which report of the commissioners was spread upon the minutes of the Board; and the election was declared to have resulted favorably to the issuance of such bonds. It is only in regard to the election that complaint is made in regard to the...