Leech v. Wileman

• Decision Date: 22 November 1937
• Docket Number: 32905
• Citation: 179 Miss. 836,177 So. 12
• Court: Mississippi Supreme Court
• Parties: LEECH et al. v. WILEMAN et al

177 So. 12

179 Miss. 836

LEECH et al. v. WILEMAN et al

No. 32905

Supreme Court of Mississippi

November 22, 1937

Division A

1. SCHOOLS AND SCHOOL DISTRICTS.

A county school board can only act and speak, with respect to certain particulars relating to an attempted organization of a consolidated school district, by the entry on its minutes.

2. SCHOOLS AND SCHOOL DISTRICTS.

Under statutes, in organizing a consolidated school district, the county school board must enter on its minutes the description of boundaries of the proposed district as well as names of sections or parts of sections composing the district (Code 1930, sections 6583, 6584).

3. SCHOOLS AND SCHOOL DISTRICTS.

Under statute, in organizing a consolidated school district, the county school board must publish the order, and its minutes must show the boundaries (Code 1930, section 6584 (a, b).

4. SCHOOLS AND SCHOOL DISTRICTS.

Under statutes, in organizing a consolidated school district, the county school board is required to adjudge that the taking of land and patrons from former districts and adding to another would not impair efficiency of those from which the land and patrons are taken (Code 1930, sections 6583, 6584).

5. SCHOOLS AND SCHOOL DISTRICTS.

Jurisdiction of county school board to organize consolidated school district requires that order of the board adjudicate that ten or more square miles are included within the district, and that the order locate the schoolhouse (Code 1930, sections 6583, 6584).

6. SCHOOLS AND SCHOOL DISTRICTS.

County school board's failure to find that taking of lands and patrons from three school districts and adding to another would not impair the efficiency of the three districts failure to include in its order an adjudication that ten or more square miles were included within such district, and failure to locate the schoolhouse, rendered attempted organization of consolidated district void (Code 1930 sections 6583, 6584).

7. SCHOOLS AND SCHOOL DISTRICTS.

Statute validating any attempted organization of a school district which has the boundaries set forth in the minutes of the county school board did not validate an attempted organization in which the county school board did not describe the boundaries of new district on its minutes as required by other statutes (Code 1930, sections 6583, 6584; Laws 1936, chapter 263, section 2).

8. SCHOOLS AND SCHOOL DISTRICTS.

County school boards which desire to create a new consolidated school district must be governed by the applicable statutes and must see that the essentials are set forth on their minutes (Code 1930, sections 6583, 6584).

HON JAS. A. FINLEY, Chancellor.

APPEAL from chancery court of Itawamba county HON. JAS. A. FINLEY Chancellor.

Suit by W. E. Wileman and others against D. E. Leech and others. Decree for complainants, and defendants appeal. Affirmed.

Affirmed.

I. L. Sheffield, of Fulton, for appellants.

It will be noted that this is a collateral attack and not a direct appeal from the action of the school board. If an appeal had been taken from the action of the school board on June 11, 1935, there would be a question as to whether or not the description of the territory sought to be consolidated was legally sufficient but no such appeal was taken and therefore it is a collateral attack and the courts will not go beyond the plain reading of the minutes. But the Legislature of 1936, in order to give effect to the will of the people, passed Chapter 263, House Bill 644, shown at page 516 of the Acts of the Legislature of Mississippi of 1936.

Statutes, as the one above referred to, are construed ordinarily to have prospective operation unless a contrary intention is manifested by clearest expression.

Bell v. Union Planters Bank & Trust Co., 137 So. 485, 105 Miss. 485; Rosswell Commercial Alcohol Corp. v. Tennis-Sheen Transfer Co., 138 So. 183, 18 La. App. 725.

A validating act may render immaterial procedure required by statute that could have been dispensed with in first instance, although such procedure had been judicially held to be material. Certainly the Legislature in its wisdom could have in the beginning required only the naming of sections and parts of sections and really this is all that is meant when it is considered that the sum of all of the parts equals the whole any way.

Taylor v. Tennessee and Florida Land & Investment Co., 72 So. 206, 71 Fla. 651.

The general rule would seem to be that an enabling or a curative law in the exercise of judicial power on the part of the Legislature is in contravention of the constitution as respects the separation of the State Government into three distinct parts, that is, the legislative, the executive and the judicial branches of the government. But this general rule does not prevent the Legislature from confirming particular acts, curing defects in past transactions, and such statutes, so far as they do not deprive any person of any right, are not unconstitutional as encroaching on the prerogative of the judicial department of the government.

6 R. C. L. 162; Boone v. Bowers, 30 Miss. 246, 46 Am. Dec. 159; 69 Miss. 939, 11 So. 111; 6 L. R. A., sections 162-164; 70 A. L. R. 1436.

The petition on the part of the patrons of this territory was signed by one hundred per cent thereof as shown by the record in this case, the answer and cross bill setting this up and the proof showing it. The school board handled the case in the same way and manner in which other districts were created, as shown by the records and minutes of the school board. They did what they thought was the proper thing and complied with the will of the people. The Legislature passed this curative statute knowing that school boards not being experts in writing descriptions would fall into error and so such errors were cured by this act in order that the will of the people might prevail.

I respectfully submit that the curative statute of 1936 validated fully the action of the school board in the creation of this district and that the learned chancellor fell into fatal error in refusing so to hold.

Brown & Elledge, of Fulton, for appellees.

The school board at the June meeting attempting to create the Pleasant Grove Consolidated School District, we claim, is void.

The order and the petition is silent as to whether or not the petition was signed by a majority of the qualified electors residing in the proposed district. This fact is jurisdictional and should affirmatively be shown in the proceedings.

Clanton v. Board of Supervisors, 164 Miss. 511, 154 So. 108; Botts v. Prentiss County, 166 So. 398; Section 6584, Code of 1930.

The order does not show that the board adjudicated whether or not the taking of the territory from the Fairview, Clay, and Oakland consolidated school districts would impair the efficiency of these districts. This fact should have been adjudicated by the board and the fact of adjudication shown in the proceedings.

Section 6584, Code of 1930; Belden Consolidated School District v. Lee County, 160 Miss. 157, 133 So. 255.

The order fails to affirmatively show that the proposed district contained ten or more square miles.

Greene v. Sparks, 163 So. 896.

The order does not show the location of the schoolhouse in the proposed district.

Bullock v. Sanford Consolidated School District, 153 Miss. 477, 121 So. 267.

The order is void because the school board failed to fix the boundaries and name the sections and parts of sections, composing the district as required by section 6584, Code of 1930. The school board did not even attempt to fix the boundaries of the proposed district and this fact is conceded by the attorney for the appellants, but it did attempt to name the sections and parts of sections, composing the district, but there are so many patent ambiguities that it renders the order void.

We contend that the order is void because the school board and those interested, resorted to gerrymandering in the creation of the district and by referring to the plat as drawn it will clearly show that gerrymandering was practiced in this case. A principal of gerrymandering has been condemned by the court as unsound in principal.

Gore v. Doolittle, 77 Miss. 620; Myers v. Board of Supervisors School District, 156 Miss. 251, 125 So. 718.

We contend that the order is absolutely void for the reasons above set, and because of other defects appearing in the order of the school board. The school board did not even attempt to follow the law in the creation of this district.

It is contended by the attorney for the appellant that since this is a collateral attack that this case cannot be maintained. We contend that it is a law that any order, which is void, can be attacked collaterally.

Belden Consolidated School District v. Lee County, 160 Miss. 157, 133 So. 255; Green v. Sparks, 163 So. 895.

We are of the opinion that if the school board in creating the Pleasant Grove Consolidated School District had fixed boundaries and set them forth and described them in the minutes that perhaps all of the defects in the order and proceedings would have been cured by the curative act, but since this was not done, this case does not come under the provisions of said act and the order and proceedings creating the district are void, notwithstanding same.

We contend that where the school board fails to set forth the boundaries of the district in its orders and minutes in the creation of a district that the organization of such district is not validated by this curative act.

On carefully reading Chapter 263 of the Laws of 1936, it appears that the Legislature thought that many kinds of districts had been created for the purpose of securing aid from the government with authority of law. It was the...