Tedder v. Board of Sup'rs of Bolivar County

• Decision Date: 09 June 1952
• Docket Number: No. 38494,38494
• Citation: 214 Miss. 717,59 So.2d 329
• Parties: TEDDER et al. v. BOARD OF SUP'RS OF BOLIVAR COUNTY.
• Court: Mississippi Supreme Court

Page 329

59 So.2d 329

214 Miss. 717

TEDDER et al. v. BOARD OF SUP'RS OF BOLIVAR COUNTY.

No. 38494.

Supreme Court of Mississippi.

June 9, 1952.

Allen & Allen, Indianola, for appellants.

Charles C. Jacobs, Jr., Frank O. Wynne, Jr., Cleveland, for appellee.

ETHRIDGE, Justice.

This is an appeal from an order of the Board of Supervisors of Bolivar County, Mississippi, adjudicating that three-fifths of the qualified electors voting had approved the issuance of $93,000 in bonds of the Boyle Consolidated School District of Bolivar County. The election was held on September 29, 1951, under the authority of Miss.Laws 1950, Ch. 231. Appellants, George Tedder and four other qualified electors of the School District, contested the report of the election commissioners to the Board of Supervisors. The Board held a hearing on the contest on October 9, 1951, at which both contestants and proponents of the bond issue introduced considerable testimony as to whether certain persons who voted were qualified electors and certain votes were legal. On October 10 the Board executed an order adjudicating that 281 qualified electors had voted, and that 170 voted in favor of the bonds and 111 against; that, therefore, more than three-fifths of the qualified electors who voted in the election had voted in favor of the issuance of the bonds, as required by Ch. 231, Sec. 7, Miss.Laws 1950.

Appellants, the contestants, appealed from that order to the Circuit Court of the Second Judicial District of Bolivar County, under Code of 1942, Sec. 1195, with a bill of exceptions as provided by that statute consisting of various documents, orders, ballots, and a certified transcript of the testimony before the Board. The special circuit judge reviewed the bill of exceptions, heard arguments, and rendered an opinion and judgment, which affirmed the end-result of the Board's order and held that the bond issue had carried.

The Boyle Consolidated School District was created by an order of the Board of Supervisors of Bolivar County on March 27, 1918. Appellants first argue that the organization of the district is void and that it is subject to collateral attack here; that the order creating the district failed to determine and describe its boundaries, does not show that there was a petition of the majority of the electors, or that an election was had to create it; that it failed to adjudicate that the district contained not less than ten square miles and other essential facts. However, the question of the validity of the district was not presented to the Board of Supervisors nor raised in the bill of exceptions. This issue was first raised in the circuit court. Appellants were not then in a position to raise it. Moreover, even if there were any errors in the organization of the district, which we do not consider, they have been cured by the numerous curative statutes passed by the Legislature since 1918, many of which provide substantially that all proceedings had by school districts 'are hereby, approved, ratified and confirmed', and 'the same are hereby declared to be valid and duly organized districts * * *, regardless of any defect or omission or irregularity in the proceedings for the organizations or creation of the districts * * *.' See Miss.Laws 1926, Ch. 280; Miss.Laws 1950, Ch. 288; Bullock v. Sanford Consolidated School District, 1929, 153 Miss. 476, 121 So. 267; Leech v. Wileman, 1937, 179 Miss. 836, 177 So. 12, dealt with a claimed validation under Ch. 263, Laws 1936, which expressly provided that the order creating the district must describe its boundaries, and that order did not do so. The present order of 1918 described by sections the lands incorporated in the Boyle District. And the cited validation statutes do not contain the restriction which was in the 1936 act involved in the Wileman case.

The appellants argue that the Board of Trustees of the Boyle Consolidated School District did not comply with the law in passing its resolution adjudicating that it was necessary that the bonds be issued, that the total indebtedness of the district will not exceed the statutory limit, and requesting the Board of Supervisors to call an election to pass upon the bond issue. Appellants say that this resolution recites, but does not adjudicate, that the district is a legally existing district, but we cannot agree. Nor is it necessary for the resolution to set forth in detail the plans, specifications, and costs of the proposed improvements to the school plant. The resolution of the Board of Trustees of the District complied with the requirements of Ch. 231, Miss.Laws 1950. And we also think that the order of the Board of Supervisors calling the election constituted a full compliance with the requirements of the cited statute.

Moreover, the record shows that the election commissioners of the county complied with the law in conducting the election. It is true that Code Sec. 3239 requires the election commissioners to meet and revise the registration and poll books five days before an election, and that the Bolivar County Commissioners met only three days before the bond election. But there was no showing that appellants were prejudiced by that two-day delay, and in the absence of such a showing, although the provisions of the statute should be complied with, they are directory and not mandatory, in the sense that failure to comply literally with the act would not of itself invalidate the election. An election commissioner testified that they tried to get capable and fair people to serve as managers, that he thought they did so, that several people refused, that one manager was against the bond issue, and that the election was conducted fairly. There is no charge or proof of fraud whatever in the conducting of the election. Code Sec. 3243 is not applicable to a special bond election where there are no party candidates involved.

The undisputed testimony showed that the Boyle Consolidated School District included both the Boyle precinct and six sections in the north part of the Shaw precinct. The election commissioners furnished the managers with the Boyle poll books showing the qualified electors in that precinct, with a map showing the area of the entire School District, and advised the managers that anyone who offered to vote whose name was not in the Boyle precinct book should be questioned to determine whether he lived in one of the six sections of land in the Shaw precinct which were in the Boyle School District, and that if it appeared that the voter lived in one of those six sections, and if he was qualified to vote in the Shaw precinct from the Shaw poll books, he should be allowed to vote. This procedure was followed by the election managers. This was an ample compliance with the statutes under the circumstances and constituted a practical method.

Appellants also say that it was necessary for the record to show affirmatively that the Cleveland newspaper in which the notice of election was published met the requirement of Ch. 427, Miss.Laws 1948. The proof of publication in the record states that the newspaper which published the notice of the election meets the requirement of that statute, and there is no evidence to the contrary. The parties agreed that the proof of publication should be a part of the bill of exceptions.

It is contended that the order of the Board of Supervisors and the record herein do not properly show proof of publication of notice of the election. The order of the Board calling the election directed the clerk of the Board to publish notice of the election in the specific form as set out in that order. The report of the election commissioners made to the Board after the election certified 'that said election was advertised by the clerk of the said board of supervisors for the time and in the form and manner as required by law.' The final order of the Board of October 10, 1951, from which this appeal is taken, 'adjudicated that all proceedings with reference to issuance of said bonds are legal and proper'. Other than as to the specific number of votes, the Board of Supervisors necessarily approved the report of the election commissioners. And the bill of exceptions, which was approved by appellants' attorneys, contains a copy of the proof of publication of the notice of the bond election, which reflects that it was filed with the clerk of the Board on October 1, the same day on which the report of the election commissioners was filed. Under these circumstances, the record sufficiently showed that proper notice of the bond election was given, and that the Board of Supervisors so adjudicated in its order.

There was a special election on a proposed bond issue for the Boyle School District on June 2, 1951, apparently on the same proposed project. The present election was held almost four months later on September 29. Appellants say that elections should have some degree of finality; that these two elections on the same project were too close together; and that therefore this election was void. Ch. 231, Miss.Laws 1950, which controls this election, does not have any provision establishing a minimum interval between succeeding bond elections, and we are not warranted in judicially legislating such an interval. Statutes establishing intervals between succeeding elections, which are cited by appellants, do not affect...