Liddell v. Municipality of Noxapater

• Decision Date: 10 July 1922
• Docket Number: 22595
• Court: Mississippi Supreme Court
• Parties: LIDDELL ET AL. v. MUNICIPALITY OF NOXAPATER ET AL

92 So. 631

129 Miss. 513

LIDDELL ET AL. v. MUNICIPALITY OF NOXAPATER ET AL

No. 22595

Supreme Court of Mississippi

July 10, 1922

APPEAL from chancery court of Winston county, HON. T. P. GUYTON Chancellor.

The Municipality of Noxapater was declared a separate school district by the Board of Mayor and Aldermen, and certain territory was added and petitions and order of annexation made and proceedings had for issuance of bonds for agricultural high school district, and W. S. Liddell and others filed their protest against the confirmation and validation of such bonds. From a decree validating the bonds the protestants appeal. Affirmed.

Judgment affirmed.

H. H Rodgers, for appellant.

As shown in the assignment of errors in this cause, there is nothing affirmatively shown in the evidence that the municipality of Noxapater had existed two years as a separate school district, and this must be affirmatively shown before such presumption can arise; and on the other hand said record of evidence does show that its attempted organization of a separate school district did not conform to the mandatory requirements of the statute. The petition, does not show affirmatively, nor in contemplation of law that the petitioners live in the district to be added, nor a majority of the qualified electors in the territory asked to be added signed to the petition as required by law.

Nor does the petition show, nor the order of the school board that a majority of the qualified electors of the territory, signed said petition, nor does it show that the order or petition had been approved by the trustees of the school district as required by section 7361, Hemingway's Code; this is a mandatory statute that any part of a county or counties adjoining a municipality which is a separate school district, may be added to such school district by the county school board upon petition of a majority of the qualified electors of the territory proposed to be added, provided such petition shall have been approved by the trustees of the separate school district. Now there is no evidence in this record that the trustees of the separate school district have approved in any way, the petition or petitions praying to be added to the Noxapater separate school district. The evidence shows beyond question that these trustees were never called upon to approve any order or petition that the territory in question be added to the Noxapater separate school district. One of the mandatory requirements is that it is a part of a territory adjoining a municipality which is a separate school district, petitioning the county school board by a majority of the qualified electors, of the territory proposed to be added. Now where is the evidence that shows that there was a majority of the qualified electors?

Well, as there may be some confusion about a majority of the qualified electors, we will only argue the facts, that the trustees did not approve of the petition filed in this behalf. Not only must the petition have a majority of the qualified electors, but it must have the approval of the trustees of the separate school district that is desired to be added. As you understand they cannot complain of collateral attack in this behalf, because the court opened up all the avenues of attack upon the theory that when the municipality undertook to validate the bond issue, then it was necessarily their duty to show all of the affirmative facts needful, and necessary to be done to validate the bonds; that is the municipality must show that from the petition down to the issuance of the bonds, that every legal requirement must have been conformed to as required by law, and for the further fact that all of this jurisdictional authority necessarily obtained in the court of chancery when the cause was submitted to them upon the validation of said bonds, and there is not one syllable of evidence in all this cause which shows that the trustees of this separate school district undertook to approve the petition to add territory filed and passed upon by the school board, and further, they could have only approved of these petitions by writing upon said petitions or upon a minute somewhere in some record, and the very order of the school board itself does not say that the trustees approved the petition, which says as follows: "And having been informed by the county superintendent and the superintendent of the Noxapater graded school and agricultural high school that said petition had been approved by the board of trustees of the Noxapater graded school or municipal district school as required by the school law of Mississippi of 1916. The order itself as is here shown, does not show that the trustees of the separate district approved said petition, but on the other hand did show that they did not, but that the county school board had understood from hearsay evidence from the county superintendent and from the superintendent of Noxapater graded and agricultural high school (that said trustees had approved the petition). It does not say what had been approved by the board of trustees of the Noxapater graded school, or municipal graded school. No attempt whatever having been made by the trustees of the separate school district to approve the petition as require in Hemingway's Code, section 7361, chapter 186, T. R., page 5, while in said order of the board of education it affirmatively shows that the petition for said territory to be added to the the Noxapater separate school district was not approved by the trustees as required by Hemingway's Code, 7361. That was one of the necessary affirmative facts that had to be shown by the appellees in this case, and they failed to show it, as all the questions were open upon this hearing upon the application of the appellees to validate said bond, and this the very foundation upon which the different orders were taken, the petition itself was not approved by the trustees as required by law; hence this jurisdictional fact was not shown and the whole structure built upon it must necessarily fall. There is no collateral attack in this behalf as was in the Dye v. Brewton case, So. 761, and the above case went to the limit upon the question of a collateral attack, but it settles one thing clearly that there was a list made, or a registration made of the qualified electors of the Sardis district as made and provided for under statute 7361, Hemingway's Code, the later part of same being here copied bearing upon this point: "For the purpose of an election on a question pertaining to schools, such municipality shall cause the qualified electors in such added territory to be registered in like manner as those within the corporate limits and governed by the same laws as far as applicable." On page 762, S. O. I. B. this language is used in said opinion: "There is a further contention that the bond election is void because certain persons living outside of the town of Sardis, but within the separate school district, were permitted to vote without being properly registered. The clerk of the board of aldermen was directed by order of the board to register those voters who lived within the district but outside the corporate limits of the town, and who desired to register, and participate in the election. In doing this the clerk, it appears, procured and used a blank book upon which he registered all persons duly presenting themselves for registration, and whom he decided were qualified electors and entitled to participate in the bond election. There was an effort to show that this registration was irregular in that the proper books were not used by the clerk and the proper oath administered.

Those favoring and those opposed to the bond issue took part in the election. Many of the voters were challenged but it seems that the legality of the registration was not raised until the present litigation. There was no showing that any of the voters who registered and took part in the election were not qualified electors under the general election law of the state. Now in the present case there was no registration made of the qualified electors in the territory attempted to be added.

It is no collateral attack, but is a question of the original validators being required to show affirmatively the jurisdictional facts necessary to validate said bonds, and we submit, with confidence, that this failure to register the qualified electors within the attempted added district is fatal.

Now as to the proposition of holding the election: the Newton county case recently decided by this court, which we have not at hand at this moment, held that the election was void because it was not held at the school house; instead said election was held at the school house, but there was no registration list made...