Keeton v. Board of Supervisors of Clarke County

• Decision Date: 04 March 1918
• Citation: 117 Miss. 72,77 So. 906
• Court: Mississippi Supreme Court
• Parties: KEETON v. BOARD OF SUPERVISORS OF CLARKE COUNTY

77 So. 906

117 Miss. 72

KEETON v. BOARD OF SUPERVISORS OF CLARKE COUNTY

Supreme Court of Mississippi

March 4, 1918

March 1918

Division B

APPEAL from the chancery of Clarke county, HON. G. C. TANN Chancellor.

Suit by G. L. Keeton against the board of supervisors of Clarke county. From a decree dismissing the bill, complainant appeals.

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

Affirmed.

S. G Terral, amicus curiae.

This is a friendly suit testing the validity of the proposed bond issue for the Carmichael consolidated school district. A petition containing a large number of the qualified electors of the proposed district was filed with the county school board asking for the creation of said district and on May 10, 1916, the school board entered an order attempting to create said district. The order of the school board located the school for said district in the southwest quarter of the southwest quarter (SW 1/4 of SW 1/4), of section five (5), township five (5), north, range seventeen (17) east, which is in Lauderdale county and outside of the proposed district. While the petition for the consolidated district recites that a majority of the qualified electors signed the petition, yet the order itself creating or attempting to create the district does not recite that a majority of the qualified electors have petitioned for the creation of said district. Neither does said order recite that the proposed district conforms to law.

Section 4510 of the Code of 1906, creates a school board and section 4512 defines its duties and prescribes how and when they shall be performed. The latter section requires the board to "designate the location of the schoolhouse in each district," "Prior to the first day of August annually." As the proposed school was not located in the proposed district prior to the first day of August, 1916, manifestly the order locating the school is void. It is absolutely essential that the location of the school be designated by the school board prior to the first day of August. Time is of the very essence of the order. In the case of Howie v. Alford, 100 Miss. 485, construing section 4338 of the Code, this court held that where a tax collector failed to file the tax deeds with the chancery clerk on or before April first, that the sale was void, even though the tax collector may not have concluded the tax sales on that date. Likewise, in the case of Stovall v. Connor, 58 Miss. 138, this court held that where the assessment roll was not presented to the board of supervisors on the first Monday of July, that the assessment was void. Several other authorities might be cited for this same position. This court has frequently held that where the tax collector did not sell land for taxes as the time prescribed by law, that the sale was void. I deem it entirely unnecessary to cite authorities in support of this position.

The order attempting to create the district is also void because of the uncertainty of the description. It reads 3, 4, 5, 6, 7, 8, 9, 10, 11, etc., without naming lots of sections. So far as this court may know, the school board may have intended lots instead of sections, and if it did, then the area is less than that prescribed by law, being a board of limited jurisdiction, its records--and not the petition of the qualified electors, must show the jurisdictional facts. 11 Cyc., 398; Hinton v. County, 84 Miss. 536.

In order for the school board to have jurisdiction, it was necessary to have the petition signed by a majority of the qualified electors of the proposed district asking for the creation of said district in accordance with section 4530 as amended by the Acts of 1914, page 262. The order of the school board does not judicially find that a majority of the qualified electors of said district petitioned for the consolidation of said district. Counsel for appellee will contend that it is not necessary to have the petition signed by a majority of the qualified electors to create a consolidated district, yet it is necessary to have such a petition in order to create a separate school district without the petition of the qualified electors for that purpose would be to say that the school board has the authority to do of its own initiative a greater thing than it would have to do any component part of that thing. In other words, while it could not create a separate school district without the petition of the qualified electors for that purpose, yet it could combine or consolidate two or more separate school districts into one district without any petition whatever and even against the wishes of the qualified electors of the separate school district. Such a contention is absurd on its face. There is essentially no difference between a separate and consolidated school district and as the people are taxed in each instance to maintain a school, the legislature evidently intended that the taxpayers through the qualified electors should have a right to say whether either a separate or a consolidated school district should be created.

It was not competent to show by parol evidence where the school board intended to locate the school. The records of the school board import absolute verity and must be tried by themselves. McCord v. Shaw, 27 So. 602; Ferguson v. Brown, 75 Miss. 214, especially page 224.

The attempted amendment of the school board records did not take place until after August 1, 1916, and not until more than one month after the filing of the bill in this case. Certainly the creation or attempted creation of the consolidated district is a judicial act and as such cannot be rescinded after the board adjourns. Yalabusha v. Carbry, 3 S. & M. 529; Keenan v. Harkin, 82 Miss. 709; American & English Ency. Law (2 Ed.), page 1008.

I respectfully submit that no consolidated school district has been created by the county school board and that therefore the court erred in dissolving the injunction.

Heidelberg & Johnston, for appellant.

A brief in this cause has already been filed by S. H. Terral, amicus curiae, and we desire to adopt his brief as ours and insist that the case should be reversed for the reasons therein stated.

The reasons assigned in said case for reversal of the case are twofold: 1. That the schoolhouse was located by the school board on a tract of land not embraced in the consolidated school district but in Lauderdale county; 2. That there was not a majority petition presented to the county board asking for a consolidation of the different schools which were after the consolidation to constitute the Carmichael consolidated school district.

The reasons assigned in Mr. Terral's brief and the authorities therein cited fully cover these two assignments of errors and we think any additional reasons that we might give or any additional citation of authorities, other than those cited in said brief would be useless.

Wm. Edwards, for appellee.

Admitting, for argument's sake, that the order of the board as originally written was fatally defective, yet this order was subsequently corrected by the school board. Since the institution of this suit, the school board at a regular meeting upon motion of a member of the board corrected the mistake, and both the motion asking that the mistake be corrected and the order of the board correcting it, appear in the record. On the day the case was heard, a motion was made to amend the answer so as to show that the mistake of the school board was corrected was sustained. True the words "amended bill" appearing in this motion was erroneously inserted instead of the word "answer," yet later on in the motion it is referred to as the "answer," and the order, sustaining the motion gives the right to amend the answer to the amended bill. The motion asks leave to amend by inserting certain words after "range 17" in the third line from the top of the second page of the amended answer. The words "range 17" do not appear in the third line from the top of the amended bill, which is conclusive that the answer and not the amended bill is referred to.

The school board had ample authority to correct the mistake in the minutes of their proceedings. 11 Cyc. 430, 764, and 765; 13 Cyc., 550; Carlisle v. Killebrew, 24 Am. St. Rep. 915.

Even if the school board were powerless to correct the mistake, the order making the correction cannot be collaterally attacked. It could only be assailed by a direct proceeding for the purpose in which the board would have to be made a party.

It is further insisted that the record or minutes of the county school board fails to show that there was a majority of the taxpayers of the district who petitioned for the creation of the consolidated school district; that the county school board is a board of limited jurisdiction and that every jurisdictional fact must appear on the face of the record of their proceedings. Section 4530 of the Code of 1906, is cited in support of the contention that such a district cannot be created without such a petition being first presented to the school board. A sufficient reply to this contention is that section 4530 of the Code has no reference to consolidated school districts, but to separate school districts. It is true that in this case there was a petition presented to the county...