Welborn v. Bd Of Sup'rs Of Jones Cty..

• Court: Mississippi Supreme Court
• Citation: Welborn v. Bd Of Sup'rs Of Jones Cty.., 94 So. 224, 130 Miss. 321 (Miss. 1922)
• Decision Date: 27 November 1922
• Docket Number: 23083
• Parties: Welborn Et. Al. v. Board Of Sup'rs Of Jones County.

94 So. 224

130 Miss. 321

Welborn Et. Al. v. Board Of Sup'rs Of Jones County.

No. 23083

Supreme Court of Mississippi

November 27, 1922

January 1, 1920

1. SCHOOLS AND SCHOOL DISIRICTS. Bond election held not invalid for error in description in notice.

In giving the notice calling an election to be held in a consolidated school district to determine whether bonds of the district should 130 Miss.---21 be issued for the purpose of erecting and equipping a school-house and teacher's home, the election commissioners attempted to include in the notice a description of the land embraced in the district, but erroneously described a part of the land as being in range 11 west instead of range 12 west, held, that this error in the notice did not render the election invalid, where the notice contained sufficient descriptive calls, including physical boundaries, to properly identify and locate the land comprising the school district.

2. SCHOOLS AND SCHOOL DISTRICTS. Bond election not Invalid because of imperfect description in ballots of land in district.

In an election held in a consolidated school district to determine whether bonds of the district shall be issued, it is unnecessary for the official ballots to contain a description of the land embraced in the district, and where the official ballots used at such election contained everything that the statute (chapter 207, section 2, Laws 1920; section 6662g Hemingway's Code Supp. 1921) required should be printed thereon, the election was not rendered invalid by reason of the fact that these ballots had printed thereon an imperfect description of a part of the land embraced in the school district.

HON. G C. TANN, Chancellor.

Proceeding by the board of supervisors of Jones county in chancery court to validate bonds of a consolidated school district. From a decree validating the bonds, M. F. Wel-born and others objecting thereto, appeal. Affirmed.

Bush Boyd & Cooper, for appellant.

1. The first question to be presented is the sufficiency of the notice as directed to be published and as published. Chapter 207 of the Laws of 1920, Hemingway's Supplement 662g, outlines the procedure to be followed in the issuance of bonds. This law provides that the board shall, by an order placed upon its minutes, declare its intention of issuing the bonds and shall therein fix a date for the holding of an election. Whereupon the election commissioners shall give not less than three weeks' notice of such election 'by publication of a notice thereof,' that the notice of the election is an essential requirement. This is a special election and one not prescribed by law as to time and place." In Vol. 20 of Corpus Juris at page 96 it is said:

"It is essential to the validity of an election that the electors have notice thereof in some form, either actual or constructive, such as notice in fact or by proclamation, or by statutes of which they are bound to take notice."

This is particularly true of an election not general but special where there is no statute fixing the time and the place and where the subject-matter of the election is one arising only once and not necessarily at all. In a case of the character before the court, what is the purpose of the notice? Is it simply to convey to the public the information that an election will be had on a certain day and at a certain place on a certain matter? While these are among the objects, we submit that there are other objects. The information is to be conveyed to qualified electors and it is the function of a notice of this kind to contain such information as to advise the public what qualified electors have a right to express their will at the election.

So when the notice is given that an election to issue the bonds of that district is to be had, it is right, it is proper and it is required that not only shall the time and the place of the election be given but the notice should contain information from which the electors of the county may determine whether they have the right to participate in that election. Is it not just as essential that a person know whether he or she may vote at all as it is to give the time and the place the vote may be cast? We submit that it is.

The appellee in the present case has practically admitted the propriety and necessity of incorporating in the notice a description of the lands included within the district. This indicates most convincingly that appellee realizes the propriety at least of advising the location of the land from which the qualified electors to determine the election shall be drawn. They attempted to set out by specific land description the component sections. This indicates that the appellee knew that as a practical matter the area of a district such as a consolidated school district was not known and especially one, such as the one involved in the case at bar, organized a month or two prior to the election held. No taxes had been paid and there had been no assessment for taxes. Nothing had been done so far as the record shows to bring to the knowledge of those who were qualified voters of the Shady Grove consolidated school district the fact that they were such voters. The appellee conceived it to be its duty to advise them and did endeavor to do so in the notice. But in doing so they placed four sections of land in the description not in it and omitted four sections which should have been included.

But there is still another feature on this phase of the case that renders the notice in question a vicious one. All that we have had to say with reference to the usual lack of information as to the boundaries of the district and the territory included therein is particularly applicable. Conceding for argument's sake that there was no necessity of setting out in the notice the area constituting the district, still appellee directed, and the commissioners followed the direction, that a description of the area included be set out in the notice. And in setting out the area the mistakes occurred. Certainly this was misleading to those who resided in the sections whose descriptions were incorrect. The information contained in the notice was incorrect and confessedly so.

But the object of the notice is to get them out to vote and at a certain time and place this right may be exercised. We most earnestly insist that a notice which misleads renders an election thereon void. It is a serious irregularity. It is more serious than stating in an ambiguous way the place of the election for in that instance the fact that an election will be held is known to the voter and he will most likely clear up the ambiguity. Yet in the case of People v. Caruthersville Sch. District, 36 P. 396, 102 Cal. 184, an election was declared void for such an error in the notice.

In the case of Barrett v. Cedar Hill District, 85 So. 125, this court sitting in banc said: "The general rule is that the time and place are two essentials to be regarded in holding elections. These are fundamental, while other regulations may be treated as irregularities, which will not defeat the election where it affirmatively appears that no harm was done."

The last clause in the above-quoted excerpt placed the burden upon the appellee to show that no harm was done by this misleading information. None appears in the record. For the court to assume that no harm was done is unthinkable in view of the territory included.

We submit, therefore, that because of the errors in the notice of election that the election was void and the bonds consequently invalid. We are sure that these errors escaped the notice of the learned state's bond attorney for it would be impossible for him to check the details of description in the many matters coming to him for attention.

II. But coming to the ballot. The court will note that, in the ballot used, the number of the township in which the first four sections are situate is entirely omitted. They are described as sections 6, 7, 18 and 19 of range 11 west, Jones county, Miss. They could be in townships 8, 9 or 10 and still be within the second district of Jones county, Miss., as the attached plat clearly shows.

The voters who voted for the bonds expressed their assent to the issuance of bonds on the description thus furnished. The appellee following the election thereupon fixed a lien to secure the payment of the bonds not upon the void description thus given but upon sections 6, 7, 18 and 19, of township 9. These descriptions may be copied correctly in ballots just as they are in deeds and the courts insist upon the correctness of descriptions in deeds even to the extent of depriving one of his property. If errors be allowed in this particular and that particular ad libitum there is no extent to which officials may not go, except that arbitrary limit that this court or a lower court may fix. It is very true that the description is void. As to what process the mind of the average voter followed in expressing his assent or dissent we do not attempt to say. We do say that where one in private transactions assents to the sale of land thus described and conveys accordingly that no title would thereby be conveyed. If a trustee in a deed of trust were to advertise land described as the four sections above, and then convey them to the purchaser correctly described, little value would be attached to the deed.

We submit that, for the errors indicated in the foregoing, this cause should be reversed, the bonds declared invalid and a decree entered here accordingly. W. J. Pack and G. W. Hosey, for appellees.

There are but two points of law urged upon the court by the appellants as to why said bonds are invalid.

1. That the notice published by the election commissioners is insufficient because a part of the land embraced...