King v. Caraway

• Decision Date: 02 July 1923
• Docket Number: 23383
• Citation: 97 So. 422,132 Miss. 679
• Court: Mississippi Supreme Court
• Parties: KING et al. v. CARAWAY et al

97 So. 422

132 Miss. 679

KING et al. v. CARAWAY et al

No. 23383

Supreme Court of Mississippi

July 2, 1923

Division B

Suggestion of Error Overruled Sept. 17, 1923.

APPEAL from chancery court of Jefferson Davis county, HON. BEE KING Chancellor.

Suit by John R. King and others against R. A. Caraway and others. From a decree for defendants, complainants appeal. Affirmed.

Decree affirmed.

Mounger Ford & Mounger and H. C. Stringer for appellants.

If the district was not legally abolished all subsequent orders made by the school board, which affected the territory embraced in the Santee separate school district were void. The question to be determined as a basis for solution of this controversy is whether the order attempting to discontinue and abolish the Santee separate school district be void. We contend that such order is void, because as made, it was not authorized by any law and because the procedure was not in accordance with the law under which separate school districts can be abolished. In support of this proposition we cite the following cases: Evans v. Wright, 89 So. 226; Adams v. Bank of Greenwood, 60 So. 770; Boutwell v. Board of Supervisors, etc., 128 Miss. 342-337; Wallace v. Tucker, 104 Miss. 83; Hinton v. Perry County, 84 Miss. 536; Craft v. DeSoto County, 79 Miss. 618; Bolivar County v. Coleman, 71 Miss. 832; White v. Railroad Company, 64 Miss. 566; Levy Commissioners v. Allen, 60 Miss. 93. We submit that chapter 244 of the Laws of 1920, and that the Laws of 1918 had been superseded by this amendment. Section 61 of the Constitution of the state of Mississippi of 1890 provides as follows: "No law shall be revised or amended by reference to its title only, but the section or sections as amended or revised shall be inserted at length." We find that this section of the Constitution has been interpreted and referred to in the following cases, to-wit: Nations v. Lovejoy, 80 Miss. 401; Mayor v. The State, 102 Miss. 663; Magee v. Lincoln County, 109 Miss. 181; Seay v. Laurel P. & Mfg. Co., 110 Miss. 834; Bryan v. City of Greenwood, 112 Miss. 719; Bell v. State, 79 So. 85; Heidelberg v. Batson, 81 So. 225; Sutherland on Statutory Construction, sections 31, 32, and 33.

We therefore submit that chapter 244 of the Laws of 1918 was amended and superseded by chapter 174 of the Laws of 1920, and the latter contains the law on the subject of the abolition or discontinuance of separate school districts, governing this case.

A school which is not a rural separate school district, cannot be abolished by the county school board. This petition did not set out that the Santee separate school district was a rural separate school district. This petition did not seek to have the school abolished for the purpose of consolidation, nor did it seek to have it abolished in accordance with chapter 174 of the Laws of 1920, but the petition referred specifically to "chapter 244 of the Laws of 1918." We insist therefore that this petition was insufficient and did not seek the action of the board in accordance with any existing law. The law which it referred to had been superseded. The jurisdiction had to be exercised in the particular manner prescribed by the statute and the requisite jurisdictional facts to show a lawful exercise of the power do not appear on the face of the record. Evans v. Wright, 89 So. 226; Bolivar County v. Coleman, 71 Miss. 832; Wallace v. Tucker, 104 Miss. 83.

All the authorities cited agree in holding that all facts necessary to confer jurisdiction must affirmatively appear from the ordinance. In the case last above cited the court holds the fact of the filing of the petition is one of the necessary facts to be shown by the ordinance.

E. L. Dent and Livingston & Milloy, for appellees.

The first point argued by appellants is that the order of the school board is void because it does not show the proper jurisdictional facts. In this we think they are in error. This order shows affirmatively that the school board did have jurisdiction of the matter of the dissolution or abolishment of the school district. Evans v. Wright, 126 Miss. 703, 89 So. , distinguished.

The next point argued by counsel for appellants is as to whether chapter 174 of the Laws of 1920, repealed and suspended chapter 244 of the Laws of 1918. Indeed this point is admitted to be controlling of the cause. We contend that there is no inconsistency and no repugnancy in chapter 211, Laws of 1918, and chapter 174, Laws of 1920. That the Laws of 1918 provide for the discontinuance or abolition of a separate school district, provided there exists no bonded indebtedness thereon; whereas, the amendatory act provides that even though there be a bonded indebtedness on such separate district, such district may be discontinued or abolished by the county school board for the purpose of consolidation. There is no law or principle of law better settled in Mississippi than that the repeal of a statute by implication is not favored. The rule is that when a repeal of a statute by implication is allowed, the extent of the repeal is only to the extent that there is a plain and manifest inconsistency or repugnancy between the two statutes. White v. Johnson, 23 Miss. 68; Pons v. State, 49 Miss. 1; Swann v. Buck, 40 Miss. 268; Campbell v. New Orleans Nat. Bank, 74 Miss. 526; 21 So. 400; Pattison v. Clingham, 93 Miss. 310, 47 So. 503; Smith v. Vicksburg, 54 Miss. 615; Owens v. Yazoo, etc., R. R. Company, 74 Miss. 821, 21 So. 244; Richards v. Patterson, 30 Miss. 583; McAfee v. Southern R. Co., 36 Miss. 669; Southern R. Co. v. Jackson, 38 Miss. 334. There is no repugnancy whatever in chapter 244, Laws of 1918, and chapter 174, Laws of 1920, and we are of the opinion that both statutes may stand without violence to either. Planters' Bank v. State, 6 S. & M. 628; Commercial Bank v. Chambers, 8 S. & M. 9; Peyton v. Cabaniss, 44 Miss. 808. See Madison County v. James L. Stewart, 74 Miss. 160.

That repeals by implication are not favored by our courts, we cite the following further authorities on the subject. State v. Jackson, 119 Miss. 727; 81 So. 1; Archer v. Moyse, 101 Miss. 36, 57 So. 299; Gilmore Puckett Gro. Co. v. J. L. Wells, 103 Miss. 468, 60 So. 580; Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Darnell v. Johnston, 109 Miss. 570, 68 So. 780.

There is not the slightest mention of the act of chapter 244 of the Laws of 1918 in the enacting part of the statute and this is clearly violative of section 61 of the Constitution of Mississippi. It is sought to amend this chapter solely by the title contrary to section 61 of the Constitution. Seay v. Plumbing & Metal Co., 110 Miss. 835, 71 So. 9; Booze v. Cresswell, 117 Miss. 795, 78 So. 770.

Counsel for appellants undertake to argue at some length in their brief that since the ordinance of the school board did not set out that the district in question was a rural separate school district and that such facts do not appear of record the judgment is rendered void. The courts take judicial notice of municipal school districts and the court will take judicial notice of the fact that there is no such municipal district in Jefferson Davis county as Santee separate municipal school district; that there is no village, town or city by the name of Santee in the county. It was held in Martin v. Miller, 103 Miss. 754, 60 So. 772, that all presumptions of law are in favor of the correctness of judgments. And it was held in DeSoto County v. Jones, 103 Miss. 602, 60 So. 655, that the courts must assume that the action of a county board of supervisors in working specific roads by special contract was within its powers, in the absence of clear proof to the contrary.

Argued orally by Henry Mounger and H. C. Stringer for appellants and E. L. Dent and W. H. Livingston for appellees.

OPINION

COOK, J.

The appellants, complainants in the court below, filed their bill in the chancery court of Jefferson Davis county against the trustees and the principal in charge of the school being conducted at Santee in said county, and against G. L. Martin, county superintendent of education, seeking to have the court decree that a certain order by which the school board of Jefferson Davis county attempted to discontinue and abolish the "Santee separate school district" was void, and sought to have the court adjudge that the minor petitioners named in the bill had the right, as pupils, to attend the school being conducted at the schoolhouse at Santee, and seeking to require the said trustees and teacher, and the said county superintendent, who were in charge and control of said school, to receive the petitioners in said school, to be taught and treated the same as if their right to attend the school was fully recognized. The bill further prayed that the trustees of the original Santee separate school district should be recognized as then having the right to have charge and control of said school, and that damages be awarded to the complainants because they had been deprived of their rights to attend said school. Upon the bill the chancellor granted a temporary injunction in accordance with the prayer, commanding that the minor petitioners be immediately received and installed as pupils in the school, and that the respondents should continue to receive and teach them until the further order of the court.

In accordance with this order, the minor petitioners were received as pupils in the school, and thereupon a demurrer to the bill of complaint and a motion to dissolve the injunction were filed. This motion was heard by the chancellor in vacation and a decree was entered sustaining the demurrer awarding attorney's fees to the respondents, and dismissing the bill. This decree of the chancellor specifically found that chapter...