Nabors v. Smith

• Decision Date: 28 April 1924
• Docket Number: 24112
• Citation: 135 Miss. 608,100 So. 177
• Court: Mississippi Supreme Court
• Parties: NABORS et al. TRUSTEES, HOLLY BLUFF CONSOLIDATED SCHOOL DIST. v. SMITH et al. [*]

100 So. 177

135 Miss. 608

NABORS et al. TRUSTEES, HOLLY BLUFF CONSOLIDATED SCHOOL DIST. v. SMITH et al. ^[*]

No. 24112

Supreme Court of Mississippi

April 28, 1924

Division A

Suggestion of Error Overruled June 2, 1924.

APPEAL from circuit court of Yazoo county, HON. W. H. POTTER, Judge.

Suit by one Smith and another against J. W. Nabors and others trustees of the Holly Bluff Consolidated School District. From a judgment for plaintiffs, defendants appeal. Reversed and judgment rendered.

Reversed.

Montgomery & Montgomery, for appellants.

The first ground of the demurrer is that "the trustees of a consolidated school district have no authority to sue or be sued." The principle is fundamental that neither the general government nor the state can be sued, except in cases where they are expressly, through statute, authorized to be sued, nor can the state be sued, except upon such claims or demands as the auditor has authority to audit, and this is by special statute. Gulf Export Co. v. State et al., 112 Miss. 452, 73 So. 281. The right to sue the county is limited to those cases wherein the legislature has ordained that the county shall be liable. This limitation is founded upon the theory that, as there is no remedy against the state unless by its own consent, there may be none against the county, which forms an integral part of the state. 7 R. C. L. 966, par. 40; Hancock County v. Shaw, 81 So. 647; Grenada v. Grenada County, 115 Miss. 831, 76 So. 682; Rainey v. Hinds County, 78 Miss. 308, 28 So. 875.

Whence comes the consolidated school? See article 8 of the Constitution; Section 7330, Hemingway's Code (sec. 4510, Code of 1906); Section 7332, Hemingway's Code (sec. 4512, Code of 1906). It is by virtue of the two above sections that consolidated school districts are brought into existence.

Our court has already held in the case of Trustees of Walton School v. Covington County, 115 Miss. 117, 75 So. 833, that: "A consolidated school district is simply a common-school district where two or more existing schools have been consolidated into one single school district." So there is no escape from the conclusion that the consolidated school has its origin in the constitution.

In Honaker v. Board of Education, 42 W.Va. 170, 24 S.E. 544; 57 A. S. R. 847; 32 L. R. A. 413, the supreme court of West Virginia, speaking through Judge HOLT, said: "The Board of Education of a school district is a corporation created by statute, with functions of a public nature, expressly given and no other; and it can exercise no power not expressly conferred or fairly arising from necessary implication." See, also, State of Connecticut v. Hine, 59 Conn. 50, 21 A. 1024; 10 L. R. A. 83; Board of Improvement, etc., v. School District of Little Rock, 56 Ark. 354, 19 S.W. 969; 35 A. S. R. 108; 16 L. R. A. 418; Bopp v. Clark, 165 Ia. 697, 147 N.W. 172; Ann. Cas. 1916E, 417, 52 L. R. A. (N. S.) 493. From these and other authorities it seems manifest that a school district is a part of the state, and as such thoroughly imbued with the sovereignty of the state.

Consolidated school districts, being common-school districts, have never been organized as corporate bodies in this state. The statutes, providing for the issuing of the bonds of the district, provide for their issuance, through the board of supervisors of the county and by that board of supervisors. See 35 Cyc. 1054, par. 2. Sections 7342, 7343, 7344, 7379, 7380, 7384 and 7385, Hemingway's Code, provide for the selection and appointment of trustees, their qualifications, tenure of office and duties, and no mention is made about the right to sue and be used. Here the constitution and all the relevant statutes are absolutely silent upon the right to sue and be sued. It is to be noted also that there is no provision constituting a school district a body corporate.

The matter has been before the courts of this state on three different occasions. Thompson & Co. v. Lamar County Agricultural High School, 117 Miss. 621, 78 So. 547; McKinnon v. Gowan Bros., 90 So. 243, 127 Miss. 545; Wallace v. Eason, 95 So. 834. It must be noted that although the court has never passed directly on this question, nevertheless the result of the decision in each case is the same as though the court had expressly decided that a consolidated school district could not sue or be sued. See, also, Live Stock Sanitary Board v. Williams, 97 So. 523.

Campbell & Campbell, for appellee.

The demurrer of appellants raises the question as to whether "the trustees of a consolidated school can sue or be sued." We have carefully examined the statutes of this state and do not find where the trustees of a consolidated school or of a district school have even been given express authority to sue or be sued. Since a consolidated school is merely an aggregation or consolidation of district schools, we assert that a consolidated school is vested with all powers originally exercised by the district schools which form its component parts. Therefore, in determining the powers of a consolidated school we must look to our statutes and decisions which are applicable to district schools and see what power they are vested with. One of the earliest cases in this state that passes on the right of the trustees of district schools to sue, is the case of Connell et al. v. Woodward et al., 5 How. (Miss.) 665. We ask the court to note that the foregoing case holds that the board of trustees is a quasi-corporation; they are subject to the rules which govern other corporations, and that they have the power to sue. This is a leading case and is frequently cited in our own reports and by textwriters.

In Carmichael v. Trustees of School Land, reported in 3 Howard, 84 (Miss.), our court held that the case should be reversed because the trustees failed to prove that they sued in their trust capacity, but did not deny the trustees the right to maintain their action. See, also, Pressley v. Ellis et al., 48 Miss. 575, where a bill in equity was brought by the trustees of a township to foreclose a lien against the lessees of sixteenth section. No question is raised as to the rights of the trustees to maintain their action as such.

In Windham v. Chisholm, 35 Miss. 531, the court held: "The power to lease the sixteenth sections reserved for the use of schools, was granted to the trustees of the several townships by the Act of 1833, and, as an incident to such power, the right of the possession of the same; an action of ejectment may, therefore, be maintained by the board of trustees in the name of the president, to recover possession of such land when wrongfully withheld from them."

In the case of Board of Trustees of Public Schools v. Yazoo City Library Assn., 12 So. 30, the board of trustees of Yazoo City public schools were sued by the Yazoo Library Association to cancel a cloud on title to certain land. Judgment was rendered against the trustees and an appeal was taken to the supreme court. The opinion does not disclose that any point was made that the trustees could not be sued. It seems to have been taken by the bar and court as a settled question.

Similarly in DeCell v. McRee et al., 83 Miss. 423, DeCell and wife filed their bill in the chancery court against the trustees of Grange Hall School alleging ownership of the building located on certain property. Decree was rendered in favor of the trustees in the lower court but was reversed on appeal. No question is raised as to right to sue the trustees of the school. See, also, Hobbs, et al. v. Germany, 94 Miss. 469, 49 So. 515, where the controversy grew out of the attempted enforcement of a certain rule, adopted by the teachers and ratified by the trustees, which required all pupils to remain at home and study from seven to nine o'clock P. M. or suffer punishment at hands of the school authorities. A pupil refused to abide by this regulation and the authorities compelled him to withdraw from school, and the father filed suit in the chancery court praying for an injunction against the trustees and teachers to prevent them from enforcing this rule, and the court held: "The question is undoubtedly subject to inquiry by the courts."

In Trustees Public School v. Carter et al., 123 Miss. 460, the trustees of the consolidated school sued appellees for trespass and to recover damages, and the court held that the trustees could maintain the suit.

In Moreau v. Grandick, 114 Miss. 560, a petition for mandamus was filed against the trustees of a separate school district to compel the trustees to admit the children of appellee to a white school. From a judgment granting the writ the trustees appealed. Judge ETHRIDGE delivered the opinion of the court and says in conclusion: "While school trustees may determine primarily whether a child is of a white or colored race, its finding is not a judicial determination and does not preclude the courts from determining these facts."

In King et al., v. Carraway et al., 97 So. 422, a bill in chancery court was filed against the trustees of Santee School and others seeking to have an order of the school board declared void. The court below denied the relief and the supreme court affirmed the decision of the lower court.

Notice the tendency of our legislature to vest more powers in the trustees of consolidated schools. Section 4005, Code of 1892, and section 4524, Code of 1906; Section 7348, Hemingway's Code (Laws 1916, ch. 186); Chapter 123, Laws 1912; Chapter 217, Acts of 1918, page 267

We now come to the consideration of laws and cases outside of our own state. 24 R. C. L., 564; McLoud v. Selby, 10 Conn. 390, 27 Am. Dec. 690; Whitney v. Brooklyn, 5 Conn. 405.

The following cases are in line with the leading case of McLoud v. Selby, 27 Am. Dec. 690; Norris v School...