Wallace v. State ex rel. Tucker

• Decision Date: 03 March 1913
• Docket Number: 16,448
• Citation: 61 So. 162,104 Miss. 83
• Court: Mississippi Supreme Court
• Parties: D. H. WALLACE v. STATE EX REL. W. F. TUCKER

61 So. 162

104 Miss. 83

D. H. WALLACE v. STATE EX REL. W. F. TUCKER

No. 16,448

Supreme Court of Mississippi

March 3, 1913

APPEAL from the circuit court of Wilkinson county, HON. E. E. BROWN Judge.

Quo warranto proceeding by the State on the relation of W. F Tucker against D. H. Wallace. From a judgment in favor of relator, defendant appeals.

At the meeting of the board of mayor and aldermen of the town of Woodville in October, 1906, W. F. Tucker and other freeholders, residents of certain territory adjoining the corporate limits of said town, petitioned the board to have said territory included in the separate school district composed at that time of the municipality of Woodville. This petition was presented under section 4533 of the Code of 1906, which provides: " Any part of a county or counties adjoining a municipality which is a separate school district may be included in such district upon a petition of a majority of the resident freeholders of the territory proposed to be added, and the approval of the municipal authorities. The school taxes in such added territory shall be collected by the county tax collector and deposited with the municipal treasurer of the district." At said meeting, the board passed upon said petition and entered an order adding the territory embraced in the petition to the municipality as a part of the separate school district, said order being entered upon the minutes of the board. Thereafter this property was assessed for school taxes, and said taxes paid promptly each year. In April, 1907, Tucker, the relator in this suit, who was a resident of the territory annexed to said town as a part of the separate school district, was elected by the board a trustee of the Woodville high school and at the expiration of his term, to wit, May, 1911, he was again elected. At the meeting of the board in June, 1912 without notice to the residents or property owners embraced in the annexed territory, the board passed an order releasing said territory from the separate school district. At the next meeting the position of trustee held by the relator was declared vacant, and appellant was elected to fill the vacancy. Thereupon the relator instituted quo warranto proceedings in the name of the state, alleging that appellant was wrongfully attempting to perform the functions of school trustee, and asking that relator's rights be adjudicated, and that he be restored to said office. The appellant demurred to the petition, and, the demurrer having been overruled, filed a plea and gave notice that he would offer proof that the ordinance passed in 1906 under which the adjacent territory was added to the school district was null and void and of no legal force, as it had never been published or entered in the ordinance book of the town, and that, therefore, the relator was ineligible to hold said office, since he was not a resident of the school district.

The case was heard without a jury, and on the trial the minute book showing the action of the board on the petition of the residents of the territory embraced in the petition for annexation was admitted in evidence. It was contended by appellant that this action of the court was improper, for the reason that it was not shown that this order of the board had been published in accordance with the charter of the town requiring the publication of ordinances, and had not been recorded in the book of ordinances. The court held the ordinance of 1906 valid, and the ordinance of 1912, attempting to repeal same, invalid, for the reason that it had been entered without the presentation of a petition, as required by chapter 129, Laws 1912, which is as follows: "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 added territory proposed to be released."

Affirmed.

Ackland H. Jones, for appellant.

The court erred in overruling the demurrer of respondent.

This action being brought as a private suit of relator, for the purpose of trying his right to the office, it is absolutely essential that he show himself legally entitled thereto. And this is so no matter if respondent has no legal right to the office whatever. Andrews v. Covington, 69 Miss. 740, 746.

The office of school trustee is filled by the election, or appointment, by the mayor and board of aldermen only in those municipalities which have, by ordinance, constituted themselves separate school districts. A separate school district can be constituted and established in municipalities only by ordinance, and until that has been done, the schools, and the election of trustees, are governed by the general school law. Secs. 4526 and 4530 of the Code. Only those municipalities which have, by ordinance, declared themselves separate school districts, are empowered to add to the district territory adjoining the municipality. Sec. 4533.

The petition of relator is fatally defective in that it fails to show the town of Woodville has ever, by ordinance or otherwise, become a separate school district. Unless there is a valid ordinance declaring the town a separate school district, the mayor and board of aldermen would be powerless to appoint trustees at all. Relator's right, if any right he has, is based upon the power of the mayor and board to appoint, and unless he shows, by his petition, that that right and power exists, and that he himself is legally entitled to the office, then his suit must fail. Andrews v. Covington, supra.

Courts do not take notice of the ordinances of towns; they must be proven. Spears v. Osyka, 92 Miss. 790; Naul v. McComb, 70 Miss. 699.

The petition fails to state that Woodville is a separate school district, the only mention being that certain adjoining territory was added to the separate school district comprising the town of Woodville. That statement is merely the conclusion of the pleader, for after the ordinance has been proven, its construction rests with the court. Pass Christian v. Washington, 81 Miss. 470.

Before relator can be heard on his claim to this office he must show, by his petition, every prerequisite fact--not only that the office itself exists, but also his own qualifications to hold it. In this, also, the petition is fatally defective.

The petition shows that relator does not reside in the corporate limits of Woodville, comprising the separate school district, but does reside on territory adjoining the same, and it further shows that this adjoining territory, claimed to have been added in October 1906, was cut out of the school district by the order of the board of June, 1912.

The regularity and legality of the proceedings of municipal corporations being presumed (21 Am. and Eng. Ency. of Law [2 Ed.], 957 [3]), this action resolves itself into a collateral attack on the order of June, 1912. That this cannot be done is the uniform holding. 21 Am. & Eng. Ency. of Law (2 Ed.), 980g and h. This action in quo warranto is nothing more nor less than an attack on the order of June, 1912, seeking in this manner an action to overturn that order.

For these reasons the court erred in overruling the demurrer. The court further erred in admitting in evidence the orders shown upon the minute book of the town.

Section 3409 of the Code provides how ordinances may be proven, either a copy certified by the clerk of the town or the ordinance book itself, being prima facie evidence of the existence and adoption. Here no ordinance at all was offered, neither the certified copy nor the ordinance book, but relator contents himself by the introduction of an order of the board precedent to the adoption of the ordinance. See pages 6 to 8 of Transcript.

No reason is given, nor excuse offered, for the nonproduction of the ordinance, and without that proof, properly made, the minute book was clearly inadmissible.

We are aware of the decisions of this court--notably Greenwood v. Jones, 91 Miss. 728, 734--in which it is held that the failure to transcribe the ordinances does not invalidate them, and we admit the correctness of that decision. In this argument, and for this argument, we may admit that the ordinance in question was not transcribed, but if that be so, it devolved on relator to snow it. His right to hold this office depended entirely upon that ordinance; his right to maintain this action depended entirely upon his showing the legal existence of the ordinance, as well as those qualifications imposed by the statutes. Respondent is not required to do or say a thing until relator has made out a case.

Upon the offer of these orders in the minute book, respondent objected to any of them appearing in the book being introduced in evidence, and on this was overruled. We insist that this was error and alone should be sufficient to call for reversal. The court further erred in allowing relator to reopen his case, and again erred in overruling the motion to exclude.

Upon the conclusion of relator's evidence and after he had rested his case, upon the motion of respondent for a judgment, to which at that time he was unquestionably entitled, the court allowed relator to reopen his case and show that he was a resident of the added territory and a patron of the school in the sense of sending his children thereto, and upon this proof being made, then overruled the motion to exclude, ignoring entirely the vital feature of the motion--that no ordinance admitting this territory had been introduced. Attention is called to the fact that even after relator was allowed, by...