Vaughan v. McCartney

• Decision Date: 22 December 1927
• Docket Number: 4 Div. 359
• Citation: 217 Ala. 103,115 So. 30
• Parties: VAUGHAN et al. v. McCARTNEY et al.
• Court: Alabama Supreme Court

115 So. 30

217 Ala. 103

VAUGHAN et al. v. McCARTNEY et al.

4 Div. 359

Supreme Court of Alabama

December 22, 1927

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Bill for injunction by E.R. Vaughan and others against W.F McCartney and others, as members of the County Board of Education of Geneva County, J.G. Austin, as County Superintendent of Education, and F.M. Fleming. From a decree denying temporary injunction, complainants appeal. Affirmed.

E.C Boswell, of Geneva, for appellants.

Carmichael & Tiller, of Geneva, for appellees.

GARDNER J.

Complainants appellants here, are resident taxpayers and patrons of school district No. 7 of Geneva county, and file this bill against the members of said county school board of education and one Fleming, a contractor, seeking injunctive relief against the erection of a junior high school building in said district at a point or location in said district other than what is referred to as the AEtna site. Answer was filed, and the application for temporary injunction set down on a named date for hearing by the chancellor, as provided by section 8304 Code of 1923. Upon due consideration of the bill and answer and evidence submitted by the respective parties to the suit, the chancellor denied the temporary writ, and from this order complainants have, within the time prescribed by section 8307, Code of 1923, prosecuted this appeal.

It is established, without dispute, that the county board of education in April, 1926, passed a resolution to divide the county into eighteen school tax districts, and requested the court of county commissioners to order an election for a special tax levy in the several tax districts. Bellwood, district No. 7, was one of the districts so established, and the commissioners' court ordered the election as thus requested and the tax voted. This was in accordance with article 12 of the Act approved September 26, 1919, entitled in part "An act to provide a complete educational system for the state of Alabama." Acts 1919, p. 567. Bellwood, or school tax district No. 7, appears therefore to have been established in accordance with the provisions of the above-noted article 12 of the Act of 1919, supra, with particular reference to section 4 thereof. Shanks v. Winkler, 210 Ala. 101, 97 So. 142.

Counsel for appellants refers to sections 1691 and 1693, Code of 1907, and argues the invalidity of the proceeding for establishment of said school tax district for a noncompliance therewith. The provisions of these Code sections have, however, been superseded by the act of 1919, supra, as in conflict therewith, and the latter act must therefore here control. Levy, etc., v. Jones, 208 Ala. 104, 93 So. 733.

It appears that Bellwood is a municipal corporation of less than 1,000 inhabitants, and that territory was not taken therefrom but added thereto in the establishment of district No. 7. The case of State ex rel. Milan v. Masters, 207 Ala. 324, 93 So. 14, cited by appellants, dealt, therefore, not only with a different situation, but also under section 1693 of the Code of 1907, which, as previously noted, has been superseded and repealed by implication at least by the provisions of the act of 1919, supra. There is an inadvertent expression in the Masters' Case that this act of 1919 did not "seem to embrace within its purview the subject of the formation and boundaries of school districts." This was a dictum, doubtless based only on such portions of the act as were brought to attention in brief, and that it was considered as a mere inadvertence is disclosed by the decision in Shanks v. Winkler, supra, wherein the authority of the county board in this respect is fully recognized. Indeed as we read and understand the bill it is not charged that district No. 7 was illegally established.

It further appears that the board of education at one time agreed upon and selected the site for the new building at AEtna and that a deed to 5 acres was executed to the state and recorded for that purpose and pursuant to an understanding with the local trustees and their consent obtained to the establishment of said tax district with the understanding the building was to be placed on the AEtna site. Couns...