Tally v. Board of Sup'rs of Smith County

• Decision Date: 10 November 1975
• Docket Number: No. 48232,48232
• Citation: 323 So.2d 547
• Parties: Joe H. TALLY, Superintendent of Education of Smith County v. BOARD OF SUPERVISORS OF SMITH COUNTY.
• Court: Mississippi Supreme Court

Page 547

323 So.2d 547

Joe H. TALLY, Superintendent of Education of Smith County v. BOARD OF SUPERVISORS OF SMITH COUNTY.

No. 48232.

Supreme Court of Mississippi.

Nov. 10, 1975.

Rehearing Denied Dec. 8, 1975.

Larry E. Clark, Taylorsville, for appellant.

L. D. Pittman, Raleigh, for appellee.

Before RODGERS, SMITH and WALKER, JJ.

WALKER, Justice.

This is an appeal from the Circuit Court of Smith County, Mississippi, which consolidated for hearing two cases appealed from the Board of Supervisors involving the leasing of sixteenth section lands.

The circuit court affirmed the action of the Board of Supervisors in granting a 25-year lease of 96 acres of sixteenth section lands to one Joe D. Stringer, and from this judgment of the circuit court, Joe H. Tally has appealed.

In the second case, the circuit court affirmed the action of the Board of Supervisors in granting a 25-year lease of 15 acres of sixteenth section lands to Eula Mae Brown.

From this judgment, Joe Tally has appealed that part of the order affirming the granting of the lease to Eula Mae Brown; and, the board of Supervisors has cross-appealed from a part of the order requiring it to give notice to specified officials ten days prior to the execution of any renewal leases on sixteenth section lands in Smith County, which will be discussed in a separate part of this opinion.

ON DIRECT APPEAL

I.

The first question presented on direct appeal in both cases is whether the appellant, Joe Tally, as an individual and taxpayer of Smith County was entitled to notice that the two leases were to be renewed. We hold that he was not. Mississippi Code Annotated section 19-3-11 (1972) prescribes the time and place for meetings of the Boards of Supervisors (in counties comprising one judicial district, such as Smith County), that being on the first Monday of each month. The statute furnishes constructive notice to the general public as to all regular meetings of Boards of Supervisors and no other notice is required, except where specifically required by statute or in unusual circumstances, in order for the Boards to conduct their business. Byrd v. Byrd, 193 Miss. 249, 8 So.2d 510 (1942).

This statutory notice of the regularly scheduled meetings satisfies the constitutional guarantees of due process. See North Larmie Land Co. v. Hoffman, 268 U.S. 276, 283, 45 S.Ct. 491, 494, 69 L.Ed. 953, 957 (1925), where it is said:

All persons are charged with knowledge of the procisions of statutes and must take note of the procedure adopted by them and when that procedure is not unreasonable or arbitrary there are no constitutional limitations relieving them from conforming to it.

The cases of Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); First Jackson Securities Corp. v. B. F. Goodrich Co., 253 Miss. 519, 176 So.2d 272 (1965); and Rice v. McMullen, 207 Miss. 706, 43 So.2d 195 (1949), requiring personal notice and cited by appellant Tally, are clearly distinguishable from the facts of the instant case. In each of those cases the aggrieved party had a personal interest in the object of the litigation, not shared by the general public, as distinguished from the appellant here whose interest is no different than that of every other citizen and taxpayer of Smith County.

II.

The appellant's next contention that he was denied the right to present evidence as to the fair market value of the subject leases is also without merit. His request to be heard with reference to the Stringer lease was not transmitted to the Board of Supervisors until after adjournment of the term at which the lease had been granted and approved by the Board. His request, even if it had been sufficient in law, was not timely made; therefore, he cannot now be heard to complain. Keenan v. Harkins, 82 Miss. 709, 35 So. 177 (1903).

In the matter of the Eula Mae Brown lease, the appellant's petition for a hearing and the affidavit in support of it with reference to the fair market value of the lease was couched in general terms and conclusions and wholly failed to recite facts which he intended to prove. If the appellant had proved that the fair rental value of the lands in question was greater than that called for in the lease, then he should have stated in his petition for a hearing that he intended to prove by certain evidence (detailing it) that the rental value of the lease was a particular amount. This Court could then determine whether such evidence would be material to the issues involved. Under the present state of this record, we are left to conjecture and surmise as to what appellant might have proven, and consequently are unable to say that he was prejudiced.

We do not reach the question of whether Tally had a right to present evidence before the Board if his requests had been timely and properly made.

III.

The appellant's next contention that the circuit court erred in refusing to allow appellant to present his evidence before the circuit court is also without merit. We have repeatedly held that an appeal from a Board of Supervisors or a City by a bill of exceptions, provided by Mississippi Code 1942 Annotated section 1195 (Supp.1972) (now Mississippi Code Annotated section 11-51-75 (1972)) is an appeal to an appellate court, and that the circuit court is bound by the record made before the Board. See Thornton v. Wayne County Election Commission, 272 So.2d 298 (Miss.1973) and Stewart v. City of Pascagoula, 206 So.2d 325 (Miss.1968). Testimony is not admissible in the circuit court on such appeals unless the Board itself is charged with fraud, Thornton v. Wayne County Election Commission, supra; and, there is no intimation here that the Board of Supervisors acted fraudulently.

IV.

The appellant next contends that the Board of Supervisors breached its duty as trustee of the sixteenth section lands by leasing these lands for the yearly sum of forty cents per acre which appellee contends is only a nominal charge; and, that the leases should be declared void for that reason. This contention has caused us great concern as it has much merit.

Sixteenth section lands are trust properties. In Jefferson Davis County v. James-Sumrall Lumber Co., 94 Miss. 530, 49 So. 611 (1909), this Court said:

The title to sixteenth section land is in the state; but it holds same in trust for the support of the public schools of the township wherein the same is situated . . . confers upon the several counties, through their respective boards of supervisors . . . jurisdiction and control of sixteenth section land, to be exercised, of course, within the terms of the original trust. . . . A county is a political subdivision of the state, created for the purpose of acting for the state in local matters, whose powers are exercised by a board of supervisors. The state, in thus dealing with sixteenth section land, acts through one of its own, and most appropriate, governmental agencies. For such purposes, and within the power conferred upon it, the county is the state. (94 Miss. at 535-36, 49 So. at 612).

See also Holmes et al. v. Jones et al., Miss., 318 So.2d 865 (1975); Keys et al. v. Carter et al., Miss., 318 So.2d 862 (1975); Tally, Superintendent of Education of Smith County, et al. v. Carter et al., Miss., 318 So.2d 835 (1975); Daniels v. Sones, 245 Miss. 461, 147 So.2d 626 (1962); Lambert v. State, 211 Miss. 129, 51 So.2d 201 (1951); Washington County v. Riverside Drainage District, 159 Miss. 102, 131 So. 644 (1931).

This Court is committed to the proposition that these lands constitute property held in trust for the public schools and must be dealt with by boards of supervisors as such, and thus the rules applicable to trusts and trust property generally are to be applied. Keys et al. v. Carter et al., supra.

Boards of Supervisors, as trustees, are under a duty to lease sixteenth section lands for a reasonable rental and not a nominal one. 54 Am.Jur. Trusts section 471 (1945) states:

The implication and exercise of the power of a trustee to lease must be reasonable with regard to the rights of beneficiaries, the nature of the property, the uses to which it advantageously may be put, and the usual and customary methods of dealing with such property in the locality where it is situated. This rule is applicable to the determination of the rent, the period of the lease, and rights granted under the lease. (54 Am.Jur. at 374).

90 C.J.S. Trusts § 319 (1955) states:

Where trustees possess power to lease trust property they may lease it on such terms, conditions, and rentals as are reasonable and customary for that class of property in the particular vicinity. (90 C.J.S. at 497).

A trustee is required to charge a reasonable rental for property of the trust which has been leased, and a lease of trust property will be set aside where it is for a nominal rental. In determining whether or not a rent is reasonable, regard is to be had to the character of the property, values assigned to rental space, the purpose of the trust, the local custom with respect to similar property, and all the conditions attending the execution of the lease. (90 C.J.S. at 499).

Moreover, the Mississippi Constitution, Article 4, Section 95 (1890) provides that: 'Lands belonging to, or under the control of the state, shall never be donated directly or indirectly, to private corporations or individuals . . .'; and, where the consideration paid for a lease is so small as to amount to a donation of the property, the lease is void. Keys et al. v. Carter et al., su...