McCormick v. Board of Revenue of Marshall County

• Decision Date: 15 October 1931
• Docket Number: 8 Div. 317.
• Citation: 223 Ala. 453,137 So. 171
• Parties: MCCORMICK ET AL. v. COUNTY BOARD OF REVENUE OF MARSHALL COUNTY ET AL.
• Court: Alabama Supreme Court

137 So. 171

223 Ala. 453

MCCORMICK ET AL. v. COUNTY BOARD OF REVENUE OF MARSHALL COUNTY ET AL.

8 Div. 317.

Supreme Court of Alabama

October 15, 1931

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Common-law certiorari by Isabella McCormick and others against the County Board of Revenue of Marshall County and the individuals composing said Board, to quash a special district school tax election. From a judgment denying the writ petitioners appeal. Transferred from Court of Appeals.

Affirmed.

Street Bradford & Street, of Guntersville, for appellants.

Joe Starnes, of Guntersville, for appellees.

THOMAS J.

The judgment entry was to the effect that the petition of plaintiffs for certiorari and their motion to quash the proceedings of the commissioners' court should not be granted, and that the defendants recover of plaintiffs the costs in the behalf expended.

The petition, among other things, averred a request by the superintendent of education, to the court of county commissioners of Marshall county, that a special school tax election be held in the Meltonsville school district No. 4 which was ordered by said court to be held after due notice on the date indicated, and reported to the board, and the board of county commissioners canvassed the returns and declared the result of that election, and prayed that all proceedings thereunder, including the assessment of said special school tax, be declared null and void. The petition being heard and considered was "denied and dismissed," the motion to quash overruled, and petitioners taxed with the costs for which execution may issue.

This proceeding for three-mill tax election, etc., is governed by the provisions of School Code of 1924, §§ 223, 227, 230, General Acts 1919, p. 567 et seq. In such matter the court of county commissioners acts as a tribunal of special and limited power and jurisdiction. Gantt v. Court of Commissioners of Covington County, 210 Ala. 125, 97 So. 129; Ferguson v. Commissioners' Court of Jackson County, 187 Ala. 645, 65 So. 1028; Wall-Hay-Wall Lumber Co. v. Mathews, 211 Ala. 426, 100 So. 824. In Jackson v. Board of Revenue of Choctaw County, 215 Ala. 418, 419, 110 So. 799, 800, it is said:

"In Gantt v. Court of Commissioners of Covington County, 210 Ala. 125, 97 So. 129, it was expressly held that-

"'The primary and essential condition upon which alone such an election is authorized to be ordered and held is the fact that county is already levying and collecting such a tax. This fact is therefore the basis of the court's jurisdiction in the premises; and since as to this subject the court is one of limited statutory power, it is necessary that the records of the court should affirmatively show the existence and ascertainment of the fact by the court, in order to sustain the validity of the order and of the election held pursuant thereto.'

"Under the above-cited authority, therefore (subsequently approved in Wall-Hay-Wall Lbr. Co. v. Mathews, 211 Ala. 426, 100 So. 824), the proceedings, as thus far disclosed, were void."

Was the request in this case made by the county board of education, or by the required number of qualified electors of said court, or by the board of education of a city of the required number of inhabitants according to the last or any succeeding federal census? It was: "The Marshall County Board of Education of Marshall County, in said State hereby request your honorable body to order an election. *** Board of Education, by C. W. Hyatt, Executive Officer." It is averred in the petition that: "The county board of education did not make of the court of county commissioners a written request for a special election in said Meltonsville School District No. 4, to determine whether a special tax should be assessed and collected in said District for school purposes in said District. The only written request made of the court of county commissioners to call said special election was made by C. W. Hyatt, who was, and is, the county superintendent of education for Marshall County. *** Petitioners aver that at no meeting of the county board of education of said county was it decided or resolved that said board should make written request of said court of county commissioners to call such special election, nor was any authority given by said board to the said C. W. Hyatt to make such request in the name of the said board of education." It is further averred that: "The only action taken of said county board of education relative to said election for said district was to spread on the minutes of its meeting of August 5, 1927, the following recital, namely, 'The following school districts of the county petitioned the court of county commissioners to call a three mill district tax election. The names and boundaries of the districts are given below.' Then followed (among other districts) what purports to be a description of the boundaries of Meltonsville District No. 4."

It is uncontroverted that the statute declares the superintendent of education, as the "Chief Executive Officer" of the county board, invested with ministerial powers; ...