State v. Board of School Com'rs of Mobile County

• Decision Date: 30 June 1913
• Citation: 183 Ala. 554,63 So. 76
• Court: Alabama Supreme Court
• Parties: STATE v. BOARD OF SCHOOL COM'RS OF MOBILE COUNTY.

63 So. 76

183 Ala. 554

STATE v. BOARD OF SCHOOL COM'RS OF MOBILE COUNTY.

Supreme Court of Alabama

June 30, 1913

Appeal from Chancery Court, Mobile County; R.T. Ervin, Special Chancellor.

Bill by the State of Alabama against the Board of School Commissioners of Mobile County to annul certain leases, to enjoin waste and for other purposes. Decree for respondent on demurrer, and complainant appeals. Affirmed.

The following is the decree of the chancellor:

"The bill joins as respondents the school board, the individual members thereof, and those who have been members of this board for some time past, with various other parties to whom it is alleged leases have been given by such board authorizing such parties to box for turpentine and to cut the timbers from the sixteenth section and the lands given in lieu of such section. It alleges that the leases are void and give no rights to the lessees to box or cut the timber, as the school board was without authority to execute such leases. It prays that the school board may be enjoined from executing any additional such leases, and that those which have been executed may be canceled and surrendered, and that the members of the board who were such when these leases were executed and the parties who held such leases may be required to account for the damage done by boxing or cutting or removing the timber. It will be observed that the bill makes no charge that any commissioner acted in bad faith or profited in any way from or by these leases, nor is it alleged that the commissioners knew when such leases were made that they had no right to make them. The demurrers raise a number of questions, many going to the technical sufficiency of the bill, while others go to the merits, and without undertaking to prepare specifically I am of the opinion that many of them are good. There are no facts alleged showing that the board has under contemplation the making of any other such leases; certainly the court cannot assume that the board will make such leases, when it is informed that its power to so lease is questioned. I do not therefore, consider the bill good as seeking to enjoin the making of other leases. Under the allegations of the bill it would appear that, even if the school board had no right to make the leases in question, they were made by such board under the bona fide belief that they had such right. In passing upon the leases when acting in good faith, the members of the board were acting judicially, and I do not consider them personally responsible in damages for such an honest mistake in judgment, and I therefore consider that under the allegations of this bill the members of the board, both past and present, are not liable. There being no allegation of anything received by the individual members of the board, there is no equity in the bill as a bill for an accounting against them. There can be no equity for an accounting against the board where there is no allegation of misappropriation of funds received by it besides, this board is only a state agency to handle and disburse the school funds. As a bill to restrain impending work, there are no allegations either as to the board or its members, past or present, which give it equity as such. I fail to find any allegation giving it equity against the board, past or present, as a bill to administer a trust and I therefore consider the bill to be multifarious in so far as it joins the board of commissioners or its members, past or present.

"This brings us down to the question of whether there is any equity under the allegations of this bill to cancel the lease as a cloud on the state's title. It will, of course, be conceded that if the leases were authorized then the bill is wanting in equity. All controversies involving the legal title to lands belong properly to the jurisdiction of courts of law, and are more properly tried by a jury. Hence it is only when it is necessary to prevent fraud or irreparable injury that a court of equity will intervene to prevent a sale of land under judicial process, issuing from the courts of law. No special equity existing, the parties must be remitted to a court of law for the determination of questions of law. Caldwell v. Lawler, 70 Ala. 295; High on Injunction, 267. A bill cannot be filed to remove a cloud on the title when the alleged cloud is a deed void on its face, or based on a judicial sale under a void judgment or decree. Caldwell v. Lawler, supra; Smith v. Gilmer, 93 Ala. 226, 9 So. 588. The test of whether a cloud exists is, Would the party be required to offer evidence in support of his title? Torrent F. Co. v. City of Mobile, 101 Ala. 563, 14 So. 557. The bill alleges that the leases are void. Assuming this to be true, if the state sue one of the lessees for the alleged trespass, would it be required to offer any evidence to show such lease to be void? I think not. If such lease is void for want of authority in the school board as alleged, then, when the lessee sought to show his authority for his acts, the court will hold same to be void for want of authority in the board, and no evidence will be required on the part of the state on this question. The affirmative would be on the lessee to show a lease from some one authorized to execute it, and this he could not do, so I find no equity in the bill to remove the cloud.

"This leaves only one question, Can the bill be maintained to require all the alleged lessees to respond in a court of equity for alleged trespasses made by them on the school lands? Under the facts alleged in the bill, and under the authorities in this case, I do not consider that in the multiplicity of suits there is a sufficient independent equity to be invoked by the state to authorize this bill. Jones v. Hardy, 127 Ala. 221, 28 So. 564; Turner v. City of Mobile, 135 Ala. 73, 33 So. 132; Roanoke Guano Co. v. Saunders, 173 Ala. 347, 56 So. 198, 35 L.R.A. (N.S.) 491; So. Steel Co. v. Hopkins, 174 Ala. 465, 57 So. 11, 40 L.R.A. (N.S.) 464."

Robert C. Brickell, Atty. Gen., R.B. Evins, of Greensboro, and Leigh & Chamberlain, of Mobile, for the State.

Gregory L. & H.T. Smith, Hanaw & Pillans, and M.V. Hanaw, all of Mobile, for appellee.

MAYFIELD J.

This is a bill in equity by the state against the board of school commissioners of Mobile county, as a corporation, against each present and each ex-member, individually, and against scores of persons to whom the present board and past boards have made leases of the sixteenth section school lands of Mobile county for the purpose of turpentining and removing timber therefrom. The theory of the bill is that these leases are void because unauthorized by law, and that the lessees, acting under the leases, have committed, are committing, and will continue to commit waste as to these school lands by denuding them of their valuable pine timber and taking the turpentine therefrom. The bill seeks to cancel the lease contracts and to enjoin the alleged waste, and seeks a decree against members of the board and the lessees for damages suffered on account of such waste already committed. The respondents, as a board, and various individuals, as defendants, demurred to the bill for want of equity and for various other grounds, such as multifariousness, as for misjoinder of parties and of suits, and for failure to allege facts sufficient to authorize the bill as one for an accounting or one to prevent a multiplicity of actions at law. The special chancellor sustained the demurrer as for want of equity and on several special grounds mentioned above, as shown by his opinion on file, which the reporter will set out, and which will elucidate the issues raised, and make certain the questions decided by him and by us on this appeal.

The fundamental question for decision on this appeal is whether the leases in question are valid or void. If valid, and the board is authorized to make other similar leases, then it is conceded that there is and can be no equity in the bill, and there is no necessity to pass upon other questions raised and insisted upon. If, however, the leases are unauthorized and void, then it will be necessary to pass upon the other questions.

No one of the many leases is set out in full or in part, and no particular irregularity or insufficiency is set out or relied upon; no bad faith is alleged on the part of the board as a unit, or on the part of any individual member in general, nor as to any particular lease. The allegation and insistence is that the board had no authority of law to make the leases, that their acts in the matter were on account of mistake of the power and authority conferred by the Legislature.

The position of the state's counsel is that the lands in question were granted by act of Congress to the state in trust for the use and benefit of the inhabitants of the respective townships, and that, by the condition of that trust, the trustee could not sell the lands except by the consent of the majority of the inhabitants of the respective townships, and that the trustee, the state, had not authorized, and could not by an act authorize, a sale in violation of the trust imposed by the act of Congress granting the lands, and that the leases in question were, in law and in fact, sales of such lands, or of estates or interests in them, without the consent of the inhabitants and in violation of the trust imposed upon the lands.

These or similar grants by Congress of sixteenth section and indemnity lands in lieu of sixteenth section lands have been before the state and federal courts for construction, and they have not always received a uniform construction as to the nature and the conditions of the grants and of the trusts imposed, in so far as the relation of the respective states to the inhabitants of the...