Savannah Special Consol. School Dist. of Pearl River County, In re

• Decision Date: 27 February 1950
• Docket Number: No. 37623,37623
• Citation: 44 So.2d 545,208 Miss. 460
• Parties: In re SAVANNAH SPECIAL CONSOL. SCHOOL DIST. OF PEARL RIVER COUNTY.
• Court: Mississippi Supreme Court

Page 545

44 So.2d 545

208 Miss. 460

In re SAVANNAH SPECIAL CONSOL. SCHOOL DIST. OF PEARL RIVER COUNTY.

No. 37623.

Supreme Court of Mississippi, in Banc.

Feb. 27, 1950.

Ben Stevens, Hattiesburg, H. K. McKee, Picayune, J. H. Stevens, Hattiesburg, for appellants.

Morse & Morse, Poplarville, for appellee.

LEE, Justice.

This is an appeal from a decree of the Chancery Court of Pearl River County, validating the bonds of the Savannah Special Consolidated School District in that county in the sum of $30,000.

The record discloses that certain citizens of the Savannah Special Consolidated School District filed their petition with the Board of Supervisors of Pearl River County praying for the issuance of bonds of said district in the amount aforesaid for the purpose of 'erecting or repairing a gymnasium, * * * improving water system, repair and reroofing of school buildings in said school district.' The petition alleged that the signers thereof constituted a majority of the qualified electors of the district. The relief sought was asked for under Section 6370, Code of 1942. There was a further allegation that the total number of qualified electors in the district was 165; and that the amount asked for did not exceed 15% of the assessed valuation of the property in the district.

The board of supervisors received the petition, and adjudged that it had been signed by 103 of the 165 qualified electors, a majority of the qualified electors of the district, and recited that all other jurisdictional prerequisites had been complied with. They ordered the bonds issued and directed the clerk to forward the transcript to the State Bond Attorney for his opinion, as provided by law. The State Bond Attorney rendered an opinion that the bonds were in all respects legal and sufficient. Notice, as required by law, was then given to the taxpayers that the hearing would be held on the 29th day of September 1949. On that date Tillous Smith and 7 others appeared and filed objections to the validation of these bonds.

The assignment of errors covers the objections which, in effect, raised the following questions: (1) that the bonds were sought to be validated when no election had been held; (2) that the petition and order were void because the purpose was stated in the alternative rather than specifically; (3) that the plans for the improvements had not been approved; (4) that the bonds were void because it was provided that they should mature without option of prior payment; (5) that the proceedings by the board of supervisors were secret; and (6) that the petitioners did not constitute a majority of the qualified electors of the district.

The board of supervisors and the trustees of the school district filed a motion to strike the objections, and also an answer, which constituted a general denial of all the allegations contained in the objections.

The court, on the motion to strike, evidently treated the objections as either insufficient in law, or irrelevant, or both, because it sustained the motion and entered its decree, validating the bonds. The objectors there appealed here.

As to objection number one, this Court has held that, when a majority of those entitled to vote, by their petition, pray for the issuance of bonds by a consolidated school district, under the provisions of Section 6370, Code of 1942, an election is unnecessary. In other words, a petition signed by a majority of the qualified electors requesting issuance of consolidated district bonds, authorized the validation of the bonds without an election. In re Validation Bonds of Orange Grove Consolidated School Dist., 187 Miss. 373, 193 So. 6. The conclusion there reached was reaffirmed in Ashcraft, et al. v. Board of Supervisors of Hinds County, 204 Miss. 65, 36 So.2d 820. It follows that the first objection was not well-taken.

As to objection number two, umbrage was taken at the language of the petition, as set out in the second paragraph of this opinion. The language of Section 6370, Code of 1942, is '* * * erect, repair, and equip school buildings.' We think a gymnasium is a school building, within the meaning of the statute. See Nichols v. Calhoun et al., 204 Miss. 291, 37 So.2d 313, where this Court held that a stadium is a school building within the meaning of the statute authorizing the issuance of municipal bonds for the erection of school buildings. Assuredly, they could either erect a new one, or repair the old one. 'Improving water system' was equipping a school building, because water and its distribution are necessities. 'Repair and reroofing school buildings' manifestly constitute repair within the meaning of the statute. If the purposes to be accomplished are within the purposes specified by the statute, they are within the statute. Ashcraft v. Board of Supervisors, supra.

As to objection number three, our attention has been called to no authority, statutory or judicial, and we know of none, requiring the approval and adoption of plans for the improvement before bonds may be issued.

As to objection number four, we might say that bonds with definite maturities have a greater appeal to many investors. In the public interest, choice must be made between cheap money and longer maturities, and dear money and shorter maturities. This was a matter in the discretion of the governing body, and we think the objection was without merit.

As to objection number five, this had the effect simply to show that the objectors had no opportunity to make their objections to the board. They alleged that they had no notice, except the rumor in the community, attendant on the circulation of the petition; that when some of them went to the board to inquire, they could not even get into the meeting because the board was said to be in executive session; and that they were even cut off from the information that any citizen might gather by simply going into the room where the supervisors were sitting. The effect of this objection was to show that they had been afforded no opportunity to be heard, and for that reason, the court should give them a hearing in that proceeding. The decision of this question is tied into the next objection.

As to objection number six, it was charged that a majority of the qualified electors had not signed the petition. Now, they were not parties in the proceedings before the board. If they had been, their remedy would have been by appeal on bill of exceptions to the circuit court. Section 1195, Code of 1942. And, not having pursued the remedy provided by law, the objections would have constituted a collateral attack, which could not be maintained. Johnson et al. v. Board of Supervisors of Yazoo County et al., 113 Miss. 435, 74 So. 321; Hinton v. Board of Supervisors of Perry County et al., 84 Miss. 536, 36 So. 565; Wofford et al. v. Williams, Tax Collector, 110 Miss. 637, 70 So. 823; Harvey v. Covington County, 161 Miss. 765, 138 So. 403; and Green et al. v. Hutson et al., 139 Miss. 471, 104 So. 171.

But, as we have said, the objectors had no part in the proceeding before the board. Their first legal notice that their property was to be burdened with a tax to pay these bonds was the notice to taxpayers of the validation proceedings. If the allegation that a majority of the qualified electors had not signed the petition was true, the power of the board to issue the bonds was destroyed. The finding of the board was that there were 165 qualified electors in the district, and that 103 of them had signed. Now, 83 of such electors would have constituted a majority. But, suppose the chancellor had heard this objection, and it had developed that 21 of the signatures were unauthorized and improperly on the petition. That would have reduced the number to 82--less than a majority. In that event, the petition would have been shown to be insufficient, and the bond issue could not have been upheld and validated, because the issue was not authorized in conformity to law.

The supreme law of our State prohibits deprivation of property except by due process of law. Section 14, Article 3, Mississippi Constitution. To provide against injustice, it is contemplated that notice shall be given to those affected so that they may have an opportunity to be heard--have their day in court. Prior to the decision in the Orange Grove case, supra, bonds were issued either after an election, or after a declaration of intention to issue at a subsequent date. In either event, notice was given to the constituency. But, since the decision in the Orange Grove case, supra, bonds may be issued on petition of a majority of the qualified electors, and no provision is made for notice prior to the issuance. Unless, therefore, an opportunity is afforded to those who object between the time of issuance and the final approval of the bonds, to have their day in court, we run headlong into conflict with the supreme law of our State.

In the validating act, Section 4314, Code of 1942, when objections are filed in writing, and the case is set over for another day for the hearing, it is provided in part: 'And on the hearing the chancellor may hear additional competent, relevant and material evidence under the rules applicable to such evidence in the chancery court, so as to inquire into the validity of the bonds or other obligations proposed to be issued, and enter a decree in accordance with his finding.' This provision must be construed so as to give to those who have had no opportunity to protest such action, in a case like this, the right to a hearing, when they respond to the notice to taxpayers in the validation proceeding.

The court ought not to have stricken the sixth objection, but should have heard and determined the same.

An additional complaint is that Chapter 295, Laws of 1948, supersedes Section 6370, Code of 1942, and that under this Act, boards of trustees are now the proper authority to issue bonds.

It is true that the said Act does authorize and empower boards of...