Trustees of Walton School v. Board of Sup'rs of Covington County

• Decision Date: 25 June 1917
• Docket Number: 19436
• Citation: 75 So. 833,115 Miss. 117
• Court: Mississippi Supreme Court
• Parties: TRUSTEES OF WALTON SCHOOL ET AL. v. BOARD OF SUPERVISORS OF COVINGTON COUNTY

75 So. 833

115 Miss. 117

TRUSTEES OF WALTON SCHOOL ET AL. v. BOARD OF SUPERVISORS OF COVINGTON COUNTY

No. 19436

Supreme Court of Mississippi

June 25, 1917

Division B

APPEAL from the chancery court of Covington county, HON. D. M RUSSELL, Chancellor.

Bill by Trustees of Walton School and others against the Board of Supervisors of Covington County and others. Bill dismissed and petitioners appeal.

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

Judgment affirmed.

W. U Corley, for appellants.

To begin with, the writer begs the indulgence of the court to say, that this case has been hotly contested by both sides and practically involves every legal point of our new modern school laws. Chapter 124 of the Acts of 1910, is "an act to provide for the transportation of pupils when schools are consolidated." This is the only act found in our law that authorizes school boards to consolidate schools, of a county, unless we turn to section 4512 of the Code of 1906, and by so doing, we may, by implication, infer such a power to them, the legality of such an inference we seriously doubt.

Chapter 255 of the Acts of 1912, is an act to "amend House Bill No. 58 of chapter 124 of the Laws of 1910, being an act to provide for the transportation of pupils in consolidated school districts." Sections 1 and 2 are practically the same as chapter 124 of the Acts of 1910. The legislature then went beyond its authority, and made the whole act void by adding section 3 which provides the means, or a way, for issuing bonds to build school houses, and to equip same, and further to provide a means of special taxation sufficient to pay for fuel, transportation wagons, incidental expenses and to erect and repair school buildings. It went further in section 4, and provided for the creation of graded schools. This act is therefore in violation of section 60 of the Constitution of Mississippi, because it changed the original purpose, of the original act for the transportation of pupils, to an act for issuing school bonds and creating a system of school tax and the creation of Graded Schools. The legislature recognized the invalidity of the acts referred to, and on the 28th of March, 1914, attempted to pass an Act, which would be a "curative statute' and is known as chapter 182 of the Acts of 1914. This act is wholly void and unconstitutional as a curative statute, so far as future contingencies are concerned, for it is wholly a retroactive act. It does not live up to its title, but the body of the act treats of the past only. The same legislature, on the same date attempted further to right their wrong and passed Senate Bill No. 573, or chapter 196 of the Acts of 1914, which purports to be an act to amend section 3, of the chapter 255, of the Acts of 1912, that which is void cannot be amended so as to make it valid. None of the titles comply with section 71 of the Constitution of Mississippi and must fall because section 71 requiring the title of acts to indicate clearly the subject-matter of the proposed legislation is mandatory. Sample v. Verona, 94 Miss. 264; Board of Levy Com'rs v. Royal Ins. Co., 96 Miss. 832.

In presenting the unconstitutionality of these acts we are not unmindful of the case of Bufkin v. Mitchell, decided by this court, December 8, 1913, and reported on 63 So. page 458. In this case this court decided that this act was valid, but it so decided on an entirely different proposition that of the question of uniformity.

"A supplemental, or amending act should indicate clearly in its title the act amended." 36 Cyc. 1029, and citations thereunder. Statutes, which are not a mere nullity of or which have not been entirely abrogated, or repealed by implication may be amended, and an act that is void cannot be amended. 36 Cyc. 1055. A statute, or its amendment, should be sufficiently comprehensive in its title and scope, so as not to be misleading in what it says, or omits to say. 109 Mo. 1. We submit that none of the titles are sufficient.

We come next to the most vital point in this case. Did the board of supervisors abuse their discretion, and act within the scope of their authority? We contend first that the petition of the adult tax payers filed on the third day of July, 1916, was sufficient, and that it was filed in time, and that to ignore it by a board of supervisors constitutes fraud itself, but before getting to this point, we submit for argument's sake that if the petition was inartfully drawn that it was a subject of amendment, and the evidence shows ample authority for the amendment, and ample request to make the amendment. Sections 300 and 301 practically gives the board of supervisors all powers conferred on any other court; section 304 confers on them all the powers conferred on a justice of the peace. Section 2728 of the Code confers upon justices of the peace all the powers incident to any court of record. Section 593 specially provides for the liberal allowance of amendments in chancery court.

Section 775 specially provides full power for the circuit court to make any amendments in pleadings before verdict. It is unquestionably true that the board of supervisors, while in session, constitute a lawful court, and so constituted, they must be there for some purpose other than to hear and determine matters coming before them, within their lawful jurisdiction. In this case we have eighty adult tax-payers, with thirty-eight of them constituting twenty per cent of such adult tax-payers as required by section 3419 of the Code of 1906, before issuing bonds.

We submit then, that with the petition worded as it was, whether amended or not, or whether amendable or not, that the relief prayed for should have been granted. In the case of De Loach v. Newton, 134 Ga. 739, an utterly void petition was filed, and the officers desiring to do the right thing by their constituents, ordered an election, and the election was contested, and the supreme court of that state said, that the election was not void, and they went even further in that case and filed an amended petition, and still the election was upheld. Then if the election could be held, and confirmed from a negative view of the case it was certainly the duty of the court to give the affirmative relief, or vice versa.

In the case of Shields v. Pyles, 99 N.E. 742, the court specifically held that all of the jurisdictional facts need not appear in the petition, and it further held that the jurisdictional facts not contained in the petition could be shown by evidence, and this is the law. Aetna v. Jones, 173 Ind. 149; Hall v. McDonald, 171 Ind. 9; Conaway v. Ascherman, 94 Ind. 187; Watson v. Crowsoe, 93 Ind. 220; Brown v. McCord, 20 Ind. 270.

In the case of Pinney v. Powers, 104 N.E. 857, an amended petition was filed, and that righteously upheld, ask leave of court to amend. A petition may be amended generally, or an order to state facts which are necessary to form the foundation for an order. 16 Enc. Pl. & Pr. 517.

We submit again that under all the facts as shown by the orders, record evidence, and oral testimony, that equal rights and privileges cannot be granted in this instance. The word liberty as employed in the Constitution, guaranteeing the liberty of citizens, implies the right to follow any of the ordinary callings of life, without being trammeled. Wilby v. State, 93 Miss. 767. Again: "The thirteenth, fourteenth and fifteenth amendments to the Federal Constitution were intended to put the questions of slavery, citizenship and suffrage of colored persons forever at rest, while securing equality of rights; and these amendments are prohibitory upon the state against the denial or abridgment of such rights." Donald v. State, 48 Miss. 661. Likewise, an official order passed by an official board stands upon the same grounds. We submit therefore, even though we would admit for argument's sake, that the acts heretofore referred to are valid that the acts of the board are void, unlawful and unconstitutional, for the reason that it abridges the right of the negro tax-payer, within the district, no like school, being provided for them, the chancellor, having orally refused to permit evidence of this kind to be introduced, notwithstanding the fact that part of complainants, appellants here, were of the colored race. This court in the case of McFarland v. Goins, decided November 2, 1909, and reported in the 50th So. page 493, specifically held, that a like act authorizing a county to establish one agricultural High School for instruction of its white youth, and to support it by tax on all taxable property therein, contravenes Const., U. S. Amend. 14.

It has been contended that complainants have wholly failed to establish fraud on the part of the defendant. We do not think it necessary to prove that appellees were bribed, or paid for their votes, or voted in the hope of a reward, or promise. "Actual or positive fraud has been said to consist in circumventing, cheating or deceiving a person to his injury by any cunning deception, or artifice." This definition was accepted by Mr. Storey; yet constructive fraud has been said to be "an act which the law declares to be fraudulent, without inquiring into its motive." "Equity will always entertain jurisdiction to relieve from fraud, notwithstanding that the law would afford relief, either by action or defense, where such remedy would be doubtful, incomplete or otherwise inadequate." 16 Cyc. 83.

Fraud may be inferred from facts and circumstances. Pope v Andrews, Sm. & M., Ch. 135. One is conclusively presumed to have intended fraud, if it necessarily and logically results from its conduct. Hillard v. Cagle, 46 Miss. 309. Positive and express proof is not required of fraud, but circumstances affording strong presumption will be...