Purvis v. Robinson

• Decision Date: 18 October 1915
• Docket Number: 18239
• Citation: 110 Miss. 64,69 So. 673
• Court: Mississippi Supreme Court
• Parties: PURVIS ET AL v. ROBINSON, TAX COLLECTOR, ET AL

69 So. 673

110 Miss. 64

PURVIS ET AL v. ROBINSON, TAX COLLECTOR, ET AL

No. 18239

Supreme Court of Mississippi

October 18, 1915

APPEAL from the chancery court of Rankin county. HON. G. C. TANN Chancellor.

Suit by J. T. Purvis and others against G. O. Robinson, Tax Collector, and others. From a decree sustaining a demurrer to the bill and dismissing it, complainants appeal.

The facts are fully stated in the opinion of the court.

Affirmed.

A. J McLaurin, Jr., for appellants.

The order of the board of supervisors of September 8, 1914 is void and the tax levy is void. First: Because the district embraced in that order does not contain twenty-five square miles of territory; is not composed of whole sections, and is not compact. Gore v. Doolittle, 77 Miss. 620. Having enough land to make twenty-five square miles in quantity is not sufficient. Ib.

The legislature of 1912 had this decision, construing what a given number of square miles means in formation of districts before them when they passed chapter 255, Laws of 1912.

Most states wherein existing public schools may be consolidated have legislative authority to do so. This state has not. But under the sound reasoning of this court in the case of Bufkin v. Mitchell, reported in the 63 So. 458, it would seem that such legislative authority is not needed. Under existing laws it is within the power of school boards to consolidate existing schools provided, of course, there is not an abuse of this authority. For instance: One school district may embrace seven square miles and another and adjoining one may embrace eight square miles. If it is not an abuse of such authority by reason of water courses dividing it, or the like, the school board has the power to consolidate the two schools. The school thus formed would be a consolidated school district, but the board of supervisors could not levy a valid tax on it because the authority given them to levy taxes on consolidated school districts is contained in section 3, chapter 255, Laws 1912, and a tax can only be levied on such districts containing "Not less than twenty-five square miles." Laws 1912, pages 323-324.

The shape of the district as shown by the map of the land embraced in the order, herewith filed, condemns it. Gore v Doolittle, ib. The order shows on its face that it is void and can be collaterally attached. McComb v. Ellett, 85 Miss. 505, Garner v. Webster County, 76 Miss. 565, and cases there cited.

The order of the board of supervisors of September 8th is void for the further reason that it seeks to levy the tax on a district attempted to be formed by an order of the school board of July 7, 1914, which is itself void.

The order of the school board of July 7th is void because the school board of April 25th prior had, by its order of that date, fixed the boundaries of the crossroads consolidated school district.

Section 4512, Code 1906, directs the county superintendent to convene the school board prior to the first day of August of each year for the purpose of defining boundaries of school districts. It does not state what time before August, and the order of April 25, 1914, was valid and legal so far as time was concerned. At a subsequent meeting of that year they had no authority over the order of April 25th. McComb v. Ellett, 8 S. & M. 505.

But even if it be held that the order of April 25th is vacated by the order of July 7th, the latter order is void because of the method employed in its adoption.

A casual glance at the record will show that the district as defined in the order of July 7th was formed to cut out those who opposed a tax levy and cut in some who favored it. A look will reveal that the school board created the district on April 25th and defined its boundaries. On May 4th, they attempted to create it again and define its boundaries, leaving out sections 9 and 10 of township 4, range 5, and further ordered an election held in June following on the question of a bond issue.

On June 2d, before the election was held, they met again and denied the petition of certain persons asking to be taken out of the district, thereby adopting the former order as the boundaries. When the bond issue was defeated they met again (July 7th) and once more changed the boundaries.

All this most reasonably appears from a glance at the record and such methods of forming districts of any kind is condemned in the case of Gore v. Doolittle cited above.

Stingily & McIntyre, for appellees.

No more could the board of supervisors inquire into the actions of the school board in the formation of this district than can any court inquire into the purpose of the legislature in passing a legislative act. Of course if the board of supervisors could not review the action of the school board in the formation of the district, this court, in a suit to enjoin the tax levied by the board of supervisors, cannot review the action of the school district board. Two separate suits, involving distinct matter, are involved.

"For the purpose of a suit to enjoin the collection of a special tax in school district, the district must be presumed legally organized, as its existence must be inquired into in a direct proceeding." Board of Commissioners v. County, 86 P. 24; 25 Am. & Eng. Ency. Law (2nd Ed.), 34; 35 Cyc. 846.

Am. Digest "Schools & School Districts" sections 24 (2) & 39; In this case the sole question to be determined by the court is, was there authority in the law for the levy? Thompson v. Krutzer, 103 Miss. 388.

For there to have been authority in the law two jurisdictional facts must have existed, and only two, to wit: 1. The school district must have contained twenty-five square miles; 2. A petition of the majority of the qualified electors of the school district.

It is the duty of the board of supervisors to pass on these two questions without reference to the school board's acts in the creation or formation of the district. If aggrieved persons desire to review the school board's acts, they must institute some direct proceedings.

"Actions of the board not involving jurisdictional power are conclusively right in this collateral litigation. It being, in this matter, of limited jurisdiction, the minutes must show that the jurisdictional facts were found to exist. This being done, there is no need ever to set forth the evidence in the judgment, and it is not controvertible, except on direct appeal." Hinton v. Board of Supervisors, 84 Miss. 536; Board v. Ames, 3 So. 37;

In this case, where the complainants seek to review the proceedings of the school board and of the board of supervisors, they must have appealed direct from the board of supervisors, upon a proper bill of exceptions and instituted some direct proceedings against the school board.

We deny that any fraud is charged against the board of supervisors. The charge that the school board cut in some parties and cut out some parties isn't a charge of fraud, because section 4512, Code of 1916, authorizes and empowers the school board to do this very thing. The power to change, alter and define necessarily carries with it the power to "cut in" and "cut out", and no fraud could be imputed to the school board in its doing the very thing it was empowered to do. Courts will not question a legislative body's purpose in doing a legislative thing, so that while the "cutting in and cutting out" are admitted, the purpose charged is not. Moreover this question has nothing to do with the jurisdiction of the board of supervisors, the question, is entirely and patently collateral.

It is contended by appellants that the record of the school board shows that on July 7th, the school board had exhausted its authority and had no further jurisdiction for the year 1914. We submit that the record shows that the school board was adjourned from time to time, subject to the call of the...