Johnson v. Board of Sup'rs of Yazoo County

Decision Date05 March 1917
Docket Number19587
CourtMississippi Supreme Court
PartiesJOHNSON ET AL. v. BOARD OF SUPERVISORS OF YAZOO COUNTY ET AL

Division B

APPEAL from the chancery court of Yazoo county, HON. O. B. TAYLOR Chancellor.

Bill for injunction by Clint Johnson and others against the Board of Supervisors of Yazoo County and others to prevent the issuance and sale of highway construction bonds. From a decree for defendants, complainants appeal.

The facts are fully stated in the opinion of the court.

Affirmed. Suggestion overruled.

M. B Montgomery, for appellant.

The course of judicial decisions holds the board of supervisors to the strictest limitations of their powers. Jefferson County v. Grafton, 74 Miss. 435, 21 So. 247.

The proceedings for the issuance of bonds is special in its character, and the board of supervisors can exercise no powers therein, other than those conferred by the statute creating it. Loomis v. Bailey, 45 Iowa 400; Herrick v. Carpenter, 6 N.W. 247; Beamon v. Leake County, 42 Miss. 237.

But aside from the fact that the board of supervisors, as a general proposition, has no power other than that conferred on it by the constitution or by statute, chapter 176, of the Laws of Mississippi of 1914, expressly limits the power of the board by providing that: "The board of supervisors are hereby authorized and empowered to construct highways and for that purpose are authorized to issue and sell bonds in the manner herein provided.

Section 170 of the Constitution, provides that: The board of supervisors shall have full jurisdiction over roads, ferries and bridges, to be exercised in accordance with such regulations as the legislature may prescribe. Chapter 176 of the Laws of Mississippi of 1914, prescribes, how the power of the board shall be exercised, and provides further that the board shall act "In the manner provided" in said act. Therefore, it is quite apparent that the board, when proceeding under chapter 176, has no more authority, than is expressly provided in chapter 176, and must proceed according to it, or not at all.

Now how does section 2 of chapter 176 of the Laws of 1914, say that the power of the board shall be exercised. It says," that upon presentation to the board of supervisors of any county of a petition containing the names of twenty per cent. of the qualified electors of any one or more supervisors' districts asking that such district be permitted to come under the provisions of this act, it shall be the duty of the board of supervisors to publish notices of its proposal to issue the bonds, etc." So the act in question expressly provides that the board shall pass no order until the petition, containing the names of twenty per cent. of the qualified electors of the proposed district, be filed. The law limits the power of the board to act, by stating, when the board shall begin to act, and, since the board must act "in the manner provided" by the act, then the "when" it can begin to act does not come into existence, until the petitions containing twenty per cent. of the qualified electors have been filed.

Now whom does the act say shall determine whether or not the petition contains twenty per cent. of the qualified electors of the district? Does it give the board of supervisors power of jurisdiction to determine whether the petition contains the proper number of names or not, or whether the persons, whose names are on the petition, are qualified electors or not? No! It gives the board of supervisors no power to pass on the sufficiency of the petitions. It can only receive it, and act or not act, in accordance with its sufficiency or insufficiency. They can guarantee its sufficiency to no one, as they must act "in the manner provided" and they are not provided with power, jurisdiction or authority to determine the sufficiency of the petition to say that the board has the power of jurisdiction to determine the sufficiency of the petition.

This would be flying right into the very teeth of the statute and openly defying it, for it expressly provides that when petitions containing the names of twenty per cent of the electors have been filed, "it shall be the duty of such board to publish notice of its proposal to issue the bonds." Under the statute their first act must be to publish notices and to make the passing on the petitions their first act, we would have to amend the statute. And so, to my mind, it is absolutely clear, that the board has no power or jurisdiction to pass on the sufficiency of the petitions, but can only receive them and act or not act accordingly, when the "when" they can act comes into existence, "in the manner provided" had actually come into existence. "But it still remains that there must be authority, vested in the officers by law, as to each necessary fact, whether enumerated or non-enumerated, to ascertain and determine its existence and to guarantee to those dealing with them the truth and conclusiveness of their admissions. In such a case the meaning of the law, granting power to issue bonds, is, that they may be issued not upon the existence of certain facts, to be ascertained and determined whenever disputed, but upon the ascertainment and determination of their existence, by the officers or body designated by law to issue the bonds upon such a contingency. So if the fact necessary to the existence of the authority was by law to be ascertained, not officially by the officers charged with the execution of the power, then the true meaning of the law would be, that the authority to act at all depended upon the actual objective existence of the requisite fact and not upon its ascertainment and determination by anyone; and the consequences would necessarily follow, that all persons claiming under the exercise of such a power might be put to proof of the fact made a condition of its lawfulness, notwithstanding any recitals in the instrument. Dixon County v. Field, 11 U.S. 83, 4 S.Ct. 315, 28 L.Ed. 360.

"It is said that as the presentation of the petition vested the board of supervisors with jurisdiction to call an election, this necessarily carried with it the power to determine how the election resulted; that if it had jurisdiction to determine that removal did not carry, it had equal power and right to determine that removal did carry, and being vested with the power to decide, its decision must stand until reversed on direct appeal. But the premises are unsound and the deduction necessarily erroneous. The power of the board to order a removal of the seat of justice did not depend on the recitation in its order that two-thirds of the electors voted for removal, but upon the actual existence of the concrete fact. If such number did not vote for removal, the board had no authority to make any order for the reason that the power by which the location of a county site can be changed cannot be set in motion except by the positive action of the voters." Simpson County v. Buckley, 85 Miss. 713. So in the case at bar, the authority of the board to act did not depend on its finding that the petitions contained the requisite twenty per cent. and unless the petitions did contain the requisite twenty per cent. their recitals in their judgment do not aid them, for the "when the board may begin to act" was not in esse, the supposed deceased was not dead, and the power by which alone a road district may be created under said act, cannot be set in motion except by the positive action of the voters, and the judgment may be attacked in any proceeding.

The petitions filed with the board not being sufficient, jurisdiction of the subject-matter has never yet attached to the board. Their judgments are all void, and are of no more effect than if I, myself, had passed such orders and entered them in my cash book in my office. "A judgment, which is void for want of jurisdiction over the person or thing, may be attacked collaterally." Campbell v. Brown, 6 Howard, 106; Hemphill v. Hemphill, 34 Miss. 68; Theobald v. Deslonde, 93 Miss. 712; Ames v. Williams, Supra.

A void judgment may be even set aside at a subsequent term, on motion in the court that rendered it. Leathers v. Howie & Co., 108 Miss. 1. The order giving the notice was also void, and the notice, no notice, because the board didn't have the jurisdiction to proceed. The "when" had not come into existence, and the supposed deceased was not dead.

There is another question, involved in this case, that is of vital importance. Complainants, in the lower court, amended their bill there, so as to allege that all of the judgments and proceedings had and done by the board of supervisors of Yazoo county, relative to the issuance of read bonds of supervisors, district No. One of Yazoo county, Mississippi, were had while the board was sitting in the court house, in what is known as the "board of supervisors' room," that the chancery clerk's office is in a building separate and apart from the court house. This amendment was not traversed in the answer of defendants and is therefore admitted.

Now, chapter 242 of the Laws of Mississippi of 1916, reads as follows: "The board of supervisors shall hold regular meetings at the court house in the chancery clerk's office, in counties where the chancery clerk's office is in a building separate from the court house, except in counties having two court districts." Chapter 234 of the Laws of 1914, which it amended, reads as follows: "The board of supervisors shall hold regular meetings at the court house in the chancery clerk's office."

Now inasmuch as the Chancery Clerk's office, in Yazoo County is in a building separate and apart from the court house, it is not necessary for us, in this action to look after the welfare of counties, where the chancery clerk's office is in...

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