McKee v. Hogan

• Decision Date: 22 November 1926
• Docket Number: 25876
• Court: Mississippi Supreme Court
• Parties: MCKEE et al. v. HOGAN. [*]

110 So. 775

145 Miss. 747

MCKEE et al. v. HOGAN. ^[*]

No. 25876

Supreme Court of Mississippi

November 22, 1926

Division B

Suggestion of Error Overruled Jan. 17, 1927.

APPEAL from chancery court of Oktibbeha county, HON. ALLEN COX Chancellor.

Suit by F. L. Hogan against J. A. McKee and others, trustees of the Starkville separate school district, for an injunction. From a judgment overruling a demurrer to complainant's bill defendants appeal. Reversed, and bill dismissed. See also post page 767.

Judgment reversed and bill dismissed.

McIntyre & Roberds, Will E. Ward and Jno. D. Greene, Jr., for appellant.

I. We submit that under our laws an individual taxpayer is without authority to bring this suit. Baird v. Georgia Pac. R. R. Co., 12 So. 557. The same argument is peculiarly applicable to the case at bar where the trustees of the Starkville separate school district were proceeding to build a suitable and adequate building for the education of the youth of the district. If the appellee, as an individual taxpayer could maintain this suit, then some eighteen hundred other taxpayers could likewise maintain a suit. The latest utterance of our court on this point is American Oil Co. et al. v. Interstate Wholesale Grocers, Inc., 138 Miss. 801, 104 So. 70.

The same reasoning specially applies to the case at bar. The complainant in the court below and appellee here, has no more right to bring this suit than any one of the other eighteen hundred taxpayers would have. He is affected in no wise differently from any other taxpayer. The board of trustees is clothed with full and complete authority and discretion in erecting, furnishing and equipping the school building, and it should not be annoyed at the whim of any taxpayer who may feel or have an imaginary objection to the location of the building.

II. The court will note further that this is not a bill to enjoin a case at law as the board of trustees is not enjoined from prosecuting the mandamus case in the circuit court; and we submit that every issue raised by appellee in his bill could have been determined in the circuit court; and the chancery court ought not only to have declined to entertain the suit, but, in fact, had no right to entertain it. Ricks v. Richardson, 70 Miss. 424.

There are no such conditions existing in the case at bar, as in Humphreys County v. Cashin, 101 So. 351.

There are no interested parties in the mandamus suit in the circuit court whose interests conflict. The only question to be determined in this lawsuit is whether or not the board of trustees of the Starkville separate school District had a right to purchase the land upon which to erect the building; and if their acts in so purchasing were ultra vires, the circuit court would so hold; this was the only question involved in the injunction proceedings brought in the chancery court; there was no reason, even imaginary, why the suit should be brought in the chancery court; and the chancellor should not have assumed jurisdiction in the matter, there being no equitable question in the bill alone. Section 608, Code of 1906 (Section 368, Hemingway's Code).

W. W. Magruder, for appellee.

The right of an individual citizen and taxpayer to protect public funds, in which he is interested as such taxpayer, from unauthorized diversion and misappropriation has never been questioned in our state by any decision of this tribunal. The qualified electors of the Starkville separate school district voted these bonds in the sum of one hundred thousand dollars, not for the purchase of real estate, even if they had been vested with such power under the statutes, but they voted such bonds in order to erect and equip a school building.

The board of trustees has no more right to spend eight thousand, five hundred dollars of this money for a purpose not authorized by the original resolution of the mayor and board of aldermen than they have to spend every dollar of this money for such unauthorized purpose.

The suggestion that a private citizen, a taxpayer, an owner of property in the Starkville separate school district, cannot by injunction protect his own property from an unauthorized diversion and misappropriation thereof by the board of trustees is in effect a denial of due process under the constitution of our state and under the federal constitution. It is a confiscation of his property or his proportionate interest at the behest of those who deny that the will of the people, the welfare of the people, is the supreme law.

Our position is in harmony with recognized precedent, without exception, in all jurisdictions so far as we are able to discover: Underwood v. Wood (Ky), 15 L. R. A. 825; El Reno v. Cleveland-Trinidad Paving Co. (Okla.), 27 L. R. A. (N. S.) 650; Mauldin v. Greenville, (S. C.), 11 S.E. 434; Zuelly v. Casper, 63 L. R. A. 133; Davenport v. Buffington, 97 F. 234; McCullough v. Brown, 23 L. R. A. 410; State ex rel. McCain v. Metschan, 41 L. R. A. 692; Skinner v. Henderson, 8 L. R. A. 55; Butts County v. Jackson Banking Co., 15 L. R. A. (N. S.), a Georgia case; Cooke v. Iverson, 52 L. R. A. (N. S.) 415 and note, a Minnesota case; Allen v. Milwaukee, 5 L. R. A. (N. S.) 680; Badger v. New Orleans, 21 So. 870, 37 L. R. A. 540; Colorado Paving Co. v. Murphy, 37 L. R. A. 630, 41 Law Ed. 1188; Stevens v. Henry County (Ill.), 4 L. R. A. (N. S.) 339; Frame v. Felix (Pa.), 27 L. R. A. 802; Knowlton v. Baumhober et al. (Iowa), 5 L. R. A. 841; Pierce et al. v. Hagans, 36 L. R. A. (N. S.) 1 and notes at 16, an Ohio case. In such notes the right of injunction in equity is declared in Illinois, Indiana, Oklahoma, Alabama, Wisconsin, Iowa, Kentucky, New Jersey, New Hampshire, California, Missouri, South Carolina, West Virginia, and other states. See also Daviess County v. Goodwin, 116 Ky. 891; Winn v. Shaw, 87 Cal. 631, 25 P. 968; 22 Cyc. 910; Greer v. Austin, 51 L. R. A. (N. S.) 336; Sugar v. Monroe, 32 So. 961, 59 L. R. A. 723; Hannah v. Board of Education, 30 L. R. A. (N. S.) 214; Honaker v. Board of Education, 32 L. R. A. 413, 57 A. S. R. 847; 32 C. J. 245, section 386.

This unbroken current of authority declares the right of injunction exists for the individual citizen and taxpayer, however humble he may be, to restrain by injunction the diversion, misapplication and misappropriation of public funds.

In Hobbs v. Germany, 94 Miss. 469, this court sustained the right of injunction in equity to a patron of our public school system, protesting against the exclusion of his son from school under unreasonable rules.

In Clinton v. Turner, 95 Miss. 584, the right of an individual owner of property to protest by injunction against damage to her property by the closing of city streets in violation of law is maintained.

In Town of North Carrollton v. Town of Carrollton, 113 Miss. 1, our court sustains the right of injunction to prevent the issuance of bonds under improper circumstances.

What distinction can there be in reason between an injunction to restrain the issuance of bonds and an in junction to restrain the misappropriation of the proceeds of a bond issue? This is not a case in which a taxpayer seeks to interfere with the discretion or discretionary powers of the board of trustees, but it is a case in which he seeks to restrain the board from the misappropriation of a public fund, in which he has a substantial interest.

II. The second suggestion involves an inquiry as to the jurisdiction of the lower court and now of this court to entertain our injunction suit at a time when mandamus proceedings were pending in the circuit court.

Under no possible theory of the law were such mandamus proceedings subject to consideration by Chancellor Cox on appellant's motion to dissolve our injunction, nor are such proceedings on appeal subject to the consideration of this court.

In no event could the mandamus suit have decided or determined anything. There were no proper parties to it. The board of trustees, under the pleadings in that mandamus suit, if they had a right to give orders to the city clerk for the issuance of warrants in payment for real estate for school purposes in a municipal separate school district, had upon the issuance of such orders exhausted their jurisdiction and authority.

Section 3231, Code of 1906, constitutes the statutory basis for mandamus proceedings. If appellants had been able to convince either the attorney-general or the district attorney of the bona-fides of their case and of the merit of their proposed mandamus proceedings, they could have secured an immediate trial in vacation under section 3240 of said Code.

Section 618, Code of 1906, provides the procedure for a motion to dissolve an injunction in vacation. Counsel for appellant undertook to avoid section 619 by filing a demurrer to our bill and then undertaking in the motion itself to suggest these mandamus proceedings entirely de hors the record. In Griffith's Mississippi Chancery Practice, section 452, it is clearly demonstrated that a motion to dissolve in the alternative must be either upon demurrer or upon answer.

The motion in the instant case was a hybrid, neither fish nor fowl. As Griffith points out in this section, a motion to dissolve an injunction is "never properly allowable as a substitute for demurrer." Also in this section on the authority of Freemans v. Ammons, 91 Miss. 672, he announces the clear and definite principle that in the absence of demurrer or plea or answer there is nothing before the court to justify an investigation.

It is A. B. C. law that a demurrer merely goes to the sufficiency of the bill and it is certain that the demurrer in this case does not and cannot raise any question as to the pendency of these alleged mandamus proceedings. It is equally certain under the statute...