Town of North Carrollton v. Town of Carrollton

• Decision Date: 29 January 1917
• Citation: 113 Miss. 1,73 So. 812
• Court: Mississippi Supreme Court
• Parties: TOWN OF NORTH CARROLLTON ET AL. v. TOWN OF CARROLLTON

73 So. 812

113 Miss. 1

TOWN OF NORTH CARROLLTON ET AL. v. TOWN OF CARROLLTON

Supreme Court of Mississippi

January 29, 1917

October 1916

Division A

APPEAL from the chancery court of Carroll county, HON. A. Y WOODWARD, Chancellor.

Bill for injunction by the town of North Carrollton and others against the Town of Carrollton. From a decree sustaining a demurrer to the bill and dismissing it, petitioners appeal.

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

Reversed and remanded.

S. E Turner, S.D. Neil and Monroe McClurg, for appellant.

A petition actually signed by a majority of those residing within the territory added to the Carrollton separate school district, praying that such territory be released from such separate school district, was filed with said board, but it appears that the petition describes more territory than was actually added to such separate school district, and, in addition, that the petition does not, on its face, recite that it was signed by a majority of the resident freeholders of such district. It is admitted by the demurrer that the petition was in fact signed by a majority of the resident freeholders of the added territory. The statute in question, chapter 129 of the Laws of 1912 provides:

The board of aldermen of any municipality in this state, constituting a separate school district, may release from such district any part of the added territory lying outside of the corporate limits, on petition of a majority of the resident freeholders of the territory proposed to be released. An order shall be entered on the minutes of the board of aldermen describing that part of the territory proposed to be released."

This statute has by this court been construed to be mandatory. The court holding that when such a petition was filed, the board of aldermen had no discretion in the matter, but on the contrary it became, and was, their duty to enter an order on the minutes releasing that part of the added territory asked to be released. Note the language of this court in construing the statute in the case of Town of Carrollton v. Town of North Carrollton, 69 So. 179.

It is true that in this matter the board exercises a special and limited jurisdiction, and that, before the board can act, the necessary jurisdictional facts must appear, but in this proceeding, as stated, the court below was not reviewing the action of the mayor and board of aldermen in the matter as appears from the record; on the contrary it was called upon to require the board to act as it should have acted, and in the determination of that question, the lower court should have placed itself in the position of the board and acted on the facts as they were presented to that board.

In the instant case, it appears from the petition that the territory added and proposed to be released is described. And while it is true that more territory than that embraced within the district is described in the petition, still all of the territory that is embraced within such district is described in it. Therefore, it cannot be claimed that simply because the petitioners pray that school district be released therefrom, that the petitioners do not pray that the territory which is included in such district be released, if, as a matter of fact, the petition also includes that territory. The statute on its face requires the board to ascertain the territory to be eliminated. So it must be conceded that a petition has been filed, praying that this added territory be released from the Carrollton separate school district, notwithstanding the fact that the petition seeks to have released also territory which is not incorporated in such district. The additional territory described in the petition should simply be treated as surplusage.

The bill in this case charges and the demurrer admits, that this petition was signed by a majority of the resident freeholders of the territory proposed to be released. It is not charged that the petition on its face recites that it is signed by a majority of such resident freeholders, but on the contrary, it is simply charged that, as a fact, the petition is so signed. If it be denied the statute directs the board to inquire into that fact. Thus, it appears to the court that a petition of a majority of the resident freeholders of the territory purposed to be released was presented to the board praying that such added territory be released from the Carrollton separate school district.

These are the facts charged in the bill, and admitted by the demurrer, and on these facts we contend that the lower court should have ordered the board to enter an order on its minutes releasing that part of the added territory covered by the petition and praying to be released.

As to whether the petition itself should recite that it was signed by a majority of the resident freeholders of the added territory, before the board of aldermen could acquire jurisdiction, we direct the attention of the court to the following:

It is conceded that in this matter the mayor and board of aldermen exercised a special and limited jurisdiction. It is further conceded that, before the board can act in the premises, it must be made to appear that these necessary jurisdictional facts exist; it is likewise conceded that if the board had acted in the matter and this was a collateral attack, all of the necessary jurisdictional facts would necessarily have to appear affirmatively in the record of the proceedings of such board; otherwise their action would be void. It is also conceded that if the statute had required the petition to recite that it was signed by a majority of the resident freeholders of such added territory, this recital would have to appear in the petition--otherwise the board would not have jurisdiction. But, as stated, this is not a collateral attack on the proceedings of the mayor and board of aldermen in a matter in which they have acted and in which the validity of their action is to be determined from the face of the record made by them. On the contrary, the lower court should have acted in the premises, just as the board should have acted when the petition came up for hearing, and all of the evidence with reference to its having been signed by a majority of the resident freeholders of such added territory had been introduced.

It will be borne in mind that the board has not acted on the petition and therefore, the validity of its action in the premises is not called into controversy. The board declined to act, notwithstanding the fact that the law made it mandatory that it should act. The Complainants below pray for an injunction requiring the board to perform the duty that the law provides that should be performed by it, namely; to determine whether a petition actually signed by a majority of the resident freeholders of this added territory has been presented to it praying that such added territory be released from the Carrollton separate school district. These facts do appear. The bill so charges and the demurrer admits it. But the solicitors for the defendants below contend that the board was without jurisdiction to act in the premises. Their contention is not that the petition was not in fact, signed by a majority of the resident freeholders of such added territory, but on the contrary, that the petition itself does not so recite, or rather on its face show, that it was signed by a majority of the resident freeholders of such added territory. By the demurrer they admit that, as a fact, the petition was signed by such majority, but their contention is that before the board acquires jurisdiction the petition must, on its face, show that it was so signed. As to this we take issue with solicitors for appellees.

In support of their contention in the court below solicitors for appellees relied on the following cases: McCreary v. Rhodes & Silk, 63 Miss. 308. This case came on for hearing in the circuit court on certiorari from the action of the municipal authorities of West Point, in granting a license to retail liquor to appellees. That court, as did the supreme court, passed upon the validity of the action of the municipal authorities from the record made by it sent up on certiorari. From this record it nowhere appears that the petition for a license, on its face recommends the applicants, "to be of good reputation, and a sober and suitable person to receive such license." Nor did the petition, or other record of the proceedings, on its face show that the applicant was a "resident" of the municipality. Section 1103 of the Code of 1880, which authorized the granting of license, provided that the applicant should present a petition recommending him to be "of good reputation, and a sober and suitable person to receive such license." And by section 1100 of the same Code, it is provided that the corporate authorities of a municipality might grant a license to a person resident in such city or town. Therefore the supreme court because the petition did not recommend the applicant to be a sober and suitable person to receive such license, and because neither the petition, nor the other record of the proceedings sent up, showed that the applicant was a resident of the municipality, said:

"In this petition for license Rhodes and Silk are not recommended to be of good reputation, nor is it shown in the petition, or by the record returned by obedience to the writ of certiorari that they, or either of them, were residents of the City of West Point. Without such recommendation and residence, the mayor and selectmen had no authority to grant them license. It was contrary to law for them to do so." Further "The jurisdiction of the mayor and selectmen in the premises was special and limited, and could be lawfully exercised only in strict...