Myers v. Board of Sup'rs of De Soto County

• Decision Date: 20 January 1930
• Docket Number: 28346
• Parties: MYERS et al. v. BOARD OF SUP'RS OF DE SOTO COUNTY
• Court: Mississippi Supreme Court

125 So. 718

156 Miss. 251

MYERS et al. v. BOARD OF SUP'RS OF DE SOTO COUNTY

No. 28346

Supreme Court of Mississippi

January 20, 1930

Division B

Suggestion of Error Overruled February 17, 1930.

APPEAL from circuit court of De Soto county HON. GREEK L. RICE Judge.

Proceeding by Albert Myers, Jr., and others, against the board of supervisors of De Soto county, involving addition of territory to a consolidated school district. A decision of the board of supervisors was affirmed by the circuit court and petitioners appeal. Reversed and proceeding dismissed.

Judgment reversed and proceeding dismissed.

Wells, Jones, Wells & Lipscomb, of Jackson, and Logan & Barbee, of Hernando, for appellants.

The whole proceeding complained of in this appeal is void because five-hundred sixty acres of land in sections 1 and 6 hereinabove described is thereby left without school facilities.

Such a result is violative of sections 201, 205, 206 of Article 8 of the Constitution of 1890; Section 39, chapter 283 of Laws of Miss. of 1924; Hemingway's Code of 1927, section 8674; State ex rel. Cowan v. Morgan, 141 Miss. 585, 106 So. 820; Rice v. Gong Lum, 139 Miss. 760.

Unless a majority of patrons signed the petition this whole proceeding is null and void.

Yeager v. Merritt, 120 So. 832; Brannan v. Board of Supervisors, 141 Miss. 444, 106 So. 768.

No petition signed by a majority of the qualified electors or of any number of such electors residing in the territory of the Olive Branch consolidated school district was ever presented to the county school board of De Soto county.

Such a petition was absolutely a condition precedent to an election such as was ordered by the board of supervisors of De Soto county in the case at bar.

Yeager v. Merritt, 120 So. 832; Chapter 283, Laws of Miss. of 1924; Sections 8743 and 8745 of Hemingway's Code of 1927; Amite County School Board v. Reese, 108 So. 439; Boutwell v. Board of Supervisors of Jasper County, 91 So. 12.

Logan & Barbee, of Hernando, for appellant.

The school districts for each race shall embrace the whole territory of the county and if the judgment of the lower court is sustained the south half of section 1, township 3, range 6, the south half of the northwest quarter and the southwest quarter of section 6, township 3, range 5, will not be in any school district of the county and will be without school facilities.

Sec. 8674, Hemingway's Code 1927; Laws 1924, chap. 283, section 39; State ex rel. Cowan, Dist. Atty., v. Morgan, County Superintendent, 106 So. 820.

The provisions in chapter 283 of the Laws of 1924, for the creations of consolidated school districts, must be strictly followed.

Yeager et al. v. Merritt et al., 120 So. 832.

It is a condition precedent that a majority of the school patrons in the territory sought to be annexed to an existing consolidated school shall file a petition with the board of supervisors asking that said territory be annexed before the board of supervisors can call an election to determine whether said territory shall be annexed.

Sec. 8745, Hemingway's, 1927 Code; Laws 1924, chap. 283, section 110; Lamb, County Supt., v. Morgan et al., 120 So. 745; Branan et al. v. Board of Supervisors of De Soto County (Miss.), 106 So. 768.

Holmes & Bowdre, of Hernando, for appellee.

Appellants have acted prematurely in raising the question that the five hundred sixty acres is without school facilities, when under the law and this record, at the time it was made, the said five hundred sixty acres is still a part of the Stonewall Rural School District, and the territory sought to be annexed is still a part of the Stonewall rural school district, no annexation to the Olive Branch consolidated school having been perfected.

A parent may reside in the territory to be added, and not be a school patron of that territory, for the reason said parent sends his or her children to a school outside of said territory.

Brannan v. Board of Supervisors, 141 Miss. 444.

The law does not require petitioners to be presented to the school board by the qualified electors of the consolidated school district simultaneously with the presentation of the petition by the school patrons of the territory to be added, to the board of supervisors.

Argued orally by R. F. B. Logan and W. C. Wells, for appellant, and by Paul Bowdre, for appellee.

OPINION

Ethridge, P. J.

This is an appeal from the circuit court involving adding territory to a consolidated school district. A petition was presented to the board of supervisors alleging that the territory involved desired to be added and annexed to the Olive Branch consolidated school district and shall assume its pro rata of the outstanding indebtedness of the said consolidated school district; that the territory is adjacent to the said district; and that the territory constitutes the major portion of the Stonewall public school including the school building of such school district.

The petition embraces sections 28, 29, and 30, of township 2, range 5; and that part of section 25, township 2, range 6, which lies east of Coldwater river; and that part of section 36, township 2, range 6, which lies east and south of Coldwater river; all of sections 31, 32, and 33 of township 2, range 5; the north half of section 1, township 3, range 6; the northeast quarter, the southeast quarter, and the north half of the northwest quarter of section 6, township 3, range 5; all of sections 4 and 5, of township 3, range 5; that part of section 12, township 3, range 6, which lies north of Byhalia creek; and that part of sections 7, 8, and 9, of township 3, range 5, which lies north of Byhalia creek. Reference was made in the petition to a certain map for the location of Byhalia creek.

By reference to a map in the record it appears that the territory to be added to the Olive Branch school district lies in a triangular form between Coldwater river and Byhalia creek, but there are certain lands left out of the petition which lie in said triangle. The south half of section 1, township 3, range 5, is omitted, while the north half of said section lying to the north of the omitted territory and section 12 lying to the south of it are included in the district. Likewise the southwest quarter of section 6, township 3, range 5, and the south half of the northwest quarter of section 6 are omitted from the territory, thus leaving out of the territory to be added only a fraction of the Stonewall school district, containing five hundred sixty acres, with an insufficient population to maintain a school therein.

It will be seen from the statement that the territory sought to be added is so laid off as to gerrymander the south half of section 1, and the southwest quarter of section 6, and the south half of the northwest quarter of section 6, and other territory lying in the form of a triangle west of this territory and in the angles made by the confluence of the Coldwater river and by Byhalia creek. Coldwater river runs approximately from northeast to southwest at this point, and Byhalia creek runs triangular across section 9, township 3, entering almost at the northeast angle and going to the southwest angle of said section, and thence in a westerly direction slightly north of the section lines of 8, 7, and 12, shown by the map.

When the petition was presented to the school board, Albert Myers, Jr., G. T. Long, W. T. Leonard, and W. J. Birmingham, citizens and residents and taxpayers of the territory omitted from the petition to annex, protested against the annexation, setting forth that T. C. Seago, B. O. Kuntz, C. N. Pryor, Mrs. C. M. Short, O. G. Alderson, C. C. Herrington, T. P. Brady, L. F. Ragsdale, and J. E. Qualls signed and filed the petition requesting the election. It was denied in this protest that the majority of the school patrons who reside in the territory sought to be annexed signed the petition. It was alleged that it was an attempt to change the boundaries of Olive Branch school district, which had levied a tax and been in operation for one session, and that the boundaries of such district could not be ordered changed without a petition signed by a majority of the patrons within such consolidated district, which had not then been filed. It was then alleged in the protest that the territory above mentioned was left out leaving it without school facilities, and that the Stonewall school in which district the omitted territory was would be deprived of facilities and the school would have to be closed.

At the same session of the board other petitioners appeared and sought to have the omitted territory within the Stonewall school district incorporated in the petition to be annexed to the Olive Branch consolidated school district. It was alleged in this petition that the petition as presented would leave a territory, one and a half miles long east and west, and one-half mile wide at its west end, and three-quarters of a mile wide at its east end, without any school facilities, and it would be unjust, and inequitable, and unfair to do so. It was also alleged that the territory sought to be annexed practically surrounds the home of Mrs. Herrington, and that she owns the south half of the southwest quarter, less twenty acres, and the north half of the southwest quarter, and the south half of the northwest quarter of section 6, township 3, range 5; and that the petitioner, Mrs. Julia A. Dunn, lives on and owns the north part of the southwest quarter of section 1, township 3, range 6.

The board denied this petition to be incorporated into the original petition and adjudged that the majority of the school patrons of the adjacent territory had signed the petition, and ordered an election to determine whether the majority of the electors would...