In re Validation of $ 50, 000 Serial Funding Bonds of Clarke County
| Decision Date | 05 February 1940 |
| Docket Number | 34020 |
| Citation | 187 Miss. 512,193 So. 449 |
| Court | Mississippi Supreme Court |
| Parties | IN RE VALIDATION OF $ 50, 000 SERIAL FUNDING BONDS OF CLARKE COUNTY |
APPEAL from the chancery court of Clarke county HON. ROBERT G GILLESPIE, Special Chancellor.
Proceeding in the matter of the validation of $ 50, 000 Serial Funding Bonds of Clarke County, wherein certain taxpayers of Clarke County filed objections. From a decree dismissing the validation proceeding an appeal was taken to the Supreme Court. Reversed and remanded.
Reversed and remanded.
Hal Case, of Quitman, and W. E. Morse, of Jackson, for appellant.
The bill of exceptions presented to the president of the board of supervisors was incomplete so that no appeal lay from the imperfect bill of exceptions.
Section 61, Code of 1930; McGee v. Jones, 63 Miss. 453; McGee v. Beall, 63 Miss. 455; Roach v Tallahatchie County, 78 Miss. 303, 29 So. 93; Yandell v. Madison County, 79 Miss. 212, 30 So. 606; Hathorn v. Morgan, 107 Miss. 589, 65 So. 643; Polk v. Hattiesburg, 109 Miss. 872, 69 So. 675, 110 Miss. 80, 69 So. 1005; Wilkinson County v. Tillery, 122 Miss. 515, 84 So. 465; Board of Supervisors of Marshall County v. Stephenson, 160 Miss. 372, 134 So 142; City of Grenada v. Grenada County, 167 Miss 814, 150 So. 657; Byrd v. Board of Supervisors of Jackson County, 180 Miss. 181, 176 So. 910.
The exception to the bond proceeding was res adjudicata to the acts of the Board of Supervisors.
Secs. 202, 203, 5977, Code of 1930.
The exception of the taxpayers was a collateral attack on the validation proceedings.
Lincoln County v. Wilson, 125 Miss. 837, 88 So. 516; Prentiss County v. Holley, 141 Miss. 432, 106 So. 644; Boroum v. Purdy Road District, 131 Miss. 778, 95 So. 677; Pearce v. Mantachie Consolidated School District, 134 Miss. 497, 99 So. 134; In re validation of Bonds of McNeill Special Consolidated School District, 188 So. 318.
Witherspoon & Witherspoon, of Meridian, for appellee.
No bond issue may be properly issued or validated under Section 5977 of the Code of 1930 except warrants or other obligations which are legal, undisputed and outstanding.
Outstanding obligations of a county under Section 5977 of the Code of 1930 are those which have been presented to the Board, placed upon its docket and audited and allowed before beginning proceedings to issue bonds to pay them.
Sec. 253, Code of 1930, Laws of 1932, Chap. 179; Sec. 255, Code of 1930, Laws of 1932, Chap. 202, and Laws of 1938, Chap. 317; Sec. 5977, Code of 1930; Bishop v. Chickasaw County, 182 Miss. 147, 180 So. 395; Honea v. Monroe County, 63 Miss. 171.
Where it conclusively appears from the record presented to the state bond attorney and later to the chancellor in validation proceedings that all claims for labor for the county for the month of August, 1939, were attempted to be included in the list of obligations for which bonds were to be issued, and that the Board of Supervisors could never have considered, audited or allowed such claims prior to the meeting at which the bond issue was decided upon, there being no meeting of the Board at which such proceedings could have been held, the record shows upon its face that such claims for labor in August were not legal "outstanding" obligations of the county, and the chancellor properly refused to validate a bond issue to raise money to pay such claims.
Sec. 253, Code 1930, Laws of 1932, Chap. 179; Sec. 255, Code 1930, Laws of 1932, Chap. 202; and Laws of 1938, Chap. 317; Lawrence County v. Brookhaven, 51 Miss. 68; Taylor v. Marion County, 51 Miss. 731; Klein v. Warren County, 51 Miss. 878; Polk v. Tunica County, 52 Miss. 422; Covington County v. Morris, 122 Miss. 495, 84 So. 462.
Where the record in the hearing before the chancellor shows that objecting taxpayers filed with the clerk of the Board of Supervisors the (chancery clerk) objections in writing denying the legality of all of the claims to pay which a bond issue is proposed setting up a large number of particulars in which it was claimed that the claims were illegal and that the Board refused to sustain such objections, and that upon such refusal the objecting taxpayers filed with the clerk of the Board a petition for appeal, and an appeal bond reciting the adverse decision and asking an appeal to the circuit court and a bill of exceptions setting out the objections and other proceedings before the Board, that such evidence constitutes a prima facie showing that the claims are disputed, and that an appeal has been taken to the circuit court, and in the absence of proof to the contrary, the chancellor was justified in holding that such an appeal had been taken.
Secs. 20, 21, 61, Code of 1930; Portwood v. Field, 72 Miss. 542, 17 So. 373; Secs. 156 and 159, Const. of Miss.; McGee v. Beall, 63 Miss. 455; Polk v. Hattiesburg, 109 Miss. 872, 69 So. 675, 110 Miss. 80, 69 So. 1005; Roach v. Tallahatchie County, 78 Miss. 303, 29 So. 93.
Whereas a part of their proof that the claims were disputed and that their objections had been appealed to the circuit court, a petition for appeal, an appeal bond, and a bill of exceptions were offered in evidence, the attorney for the Board of Supervisors objects to the introduction in evidence before the chancellor of the bill of exceptions to the action of the Board and such introduction is objected to because the bill of exceptions had not been signed by the president of the Board, and mandamus proceedings had not been filed to force him sign it, the chancellor, in view of the fact that it would be several months before the fourth Monday of March, 1940, when the circuit court would hold its next session in Clarks County, properly held that there was still ample time for such proceedings to be taken, and that it was no objection to the bill of exceptions that such mandamus proceedings had not been begun at the time of the trial before the chancellor on October 16, 1939.
Neither the chancery court nor the chancellor at a hearing for the validation of bonds has any supervisory or appellate jurisdiction over the circuit court, nor over any of the steps necessary for an appeal to the circuit court, and where it is contended in the hearing before the chancellor that the bill of exceptions in the appeal from the decision of a Board of Supervisors is incomplete or otherwise defective, the chancellor properly decided that the circuit court was the proper court to determine the question.
Const. of Miss., Secs. 156 and 159; Portwood v. Field, 72 Miss. 542, 17 So. 373.
If the chancellor in the trial court had no jurisdiction to pass upon the merits or completeness of a bill of exceptions in an appeal from the Board of Supervisors to the circuit court, then the Supreme Court in the exercise of its appellate jurisdiction has no jurisdiction to do so. No question may properly be considered here which could not be properly heard and decided by the chancellor.
Ball, Brown & Co. v. Sledge, 82 Miss. 747, 35 So. 214; Johnston v. Marshall, 48 So. 182.
This court will review only those questions presented to the trial court and where there was no objection at the trial to the introduction of a bill of exceptions on the ground that it was taken at a special meeting without notice, or in vacation or otherwise than at a regular meeting of the board, this court will not notice such contention when made for the first time in this corut.
Y. & M. V. R. R. Co. v. Wallace, 90 Miss. 609, 43 So. 469, 122 Am. St. Rep. 321; Adams v. City of Clarksdale, 95 Miss. 88, 48 So. 242; A. H. George & Co. v. L. & N. R. R. Co., 88 Miss. 486, 40 So. 486; Williams v. Butts, 124 Miss. 661, 87 So. 145; Estes v. Memphis & C. Ry. Co., 152 Miss. 814, 119 So. 199; Miss. Valley Trust Co. v. Brewer, 157 Miss. 890, 128 So. 83; Whittington v. H. T. Cottam Co., 158 Miss. 847, 130 So. 745; Mitchell v. Finley, 161 Miss. 527, 137 So. 330; Adams v. Bd. of Sup'rs. of Union County, 177 Miss. 403, 170 So. 684; So. Ry. v. Jackson (Miss.), 49 So. 738; 3 C. J. 710, Sec. 608.
Where an appeal is taken to the circuit court from the order of a Board of Supervisors allowing claims and deciding to issue bonds to pay them the Board of Supervisors cannot legally proceed with the validation proceedings. The effect of the appeal is to transfer the case to the circuit court and the chancellor can enter no valid decree validating the bond issue.
Pearce v. Mantachie Consolidated School District, 134 Miss. 497, 99 So. 134.
Where, upon the introduction of the petition for appeal and the appeal bond and the adverse ruling of the chancellor admitting the unsigned bill of exceptions in evidence, counsel for proponents stated to the court that "that ends the case, " the objectors were absolved from the duty of producing any further evidence to show that they had taken an appeal to the circuit court, and from producing any further evidence in support of their objections, which they were presenting to the chancellor, or any evidence that the meeting at which the objections were acted upon was a regular meeting of the Board, and the chancellor was justified in proceeding to hold that an appeal had been taken to the circuit court.
Where a fact is admitted, conceded, or assumed without objection in the trial court, it cannot be contested in the appellate court or objected that there was no evidence on the question, but the theory in the trial court will be adhered to.
3 C. J. 735, Sec. 629; and cases cited in Note 54; Byrd v. Bd. of Sup'rs. of Jackson County, 179 Miss. 516, 176 So. 387.
The only other ground upon which appellant at the trial objected to the introduction of the bill of exceptions was that the objections stated therein to have been...
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