Word v. Board of Sup'rs of Sunflower County

• Decision Date: 21 May 1917
• Docket Number: 19238
• Citation: 114 Miss. 446,75 So. 258
• Court: Mississippi Supreme Court
• Parties: WORD, ET AL. v. BOARD OF SUPERVISORS OF SUNFLOWER COUNTY

75 So. 258

114 Miss. 446

WORD, ET AL. v. BOARD OF SUPERVISORS OF SUNFLOWER COUNTY

No. 19238

Supreme Court of Mississippi

May 21, 1917

Division A

APPEAL from the circuit court of Sunflower county, HON. F. E EVERETT, Judge.

Certiorari by Frank Word and others against the Board of Supervisors of Sunflower county. From a judgment for plaintiff, defendants appeal.

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

Case reversed.

S. F Davis, for appellant.

The court will bear in mind, that in declaring a stock law in the county or any part thereof, the board of supervisors exercise a special and limited jurisdiction, and unless their records affirmatively show all of the facts necessary to confer jurisdiction upon them, their order is null and void. See Garner v. Webster County, reported in 79 Miss. 565, and 31 So. 210; Bolivar County v. Coleman, 71 Miss. 832, 15 So. 107; Lester v. Miller, 76 Miss. 309, 24 So. 193; Henry v. Board of Supervisors of Sunflower County, 71 So 742.

Before the board of supervisors could have entered a valid order in this case, the petition upon which they acted must have shown on its face that the signers of the petition were a majority of the resident freeholders or leaseholders for a term of three or more years of the territory sought to be embraced in the stock-law district; and must have shown that the territory sought to be embraced in the proposed stock-law district contained one or more townships or a part or parts of the county separated by natural boundaries or a part of two or more townships which contained not less than thirty-six square miles; and must have shown that said territory was composed entirely of rural or entirely of municipal territory. But not one single one of these facts appear in the petition filed with the board of supervisors in this case, as the court will see by reference to said petition.

Those facts are all jurisdictional facts and must have all appeared on the face of the petition itself before the board of supervisors could have acquired jurisdiction over the subject-matter.

In discussing this question in 2 Cyc., page 441, the writer says: "This petition for an order directed to the board of county commissioners should conform substantially to the requirements of the statute."

In 3 Corpus. Juris., page 177-78, the rule is stated as follows "The county commissioners have no authority to make an order without the statutory petition having been first duly presented to them. The petition is a jurisdictional fact, and without it no valid order can be made. The petition must conform substantially with the requirements of the statute and contain the averment of the facts necessary to confer jurisdiction."

In the case of Henry County v. Holland, reported in 58 So. 270, and which is an Alabama stock-law case very similar to the one under consideration here, the court says: "The transcript shows that the original judgment of the commissioners' court was fatally defective in that it did not show that the petition had been signed by ten freeholders who resided in the district."

In the case of Flower v. Grant, another Alabama case, reported in 30 So. 94, the court in passing on the validity of a stocklaw, says: "A petition which does not state that the petitioners are freeholders and reside in the district, is fatally defective and the commissioner's court acquires no jurisdiction."

Our own court has held in the case of Bolivar County v. Coleman, reported in 71 Miss. 832, and 15 So. 107, that a lease of sixteen section school land, made by the board of supervisors under section 732 of the Code of 1880, was void because it did not appear from the record, that a majority of resident heads of families petition for the leasing."

This court also held in the case of Lester v. Miller, reported in 76 Miss. 309, and 24 So. 193, that an order of the board of supervisors of Sunflower county ordering an election under chapter 37 of the Code of 1892, was void because the petition asking for said election did not show that it was signed by one-third of the qualified electors of said county as required by the statute."

In view of the authorities above cited, I submit to this court, that the petition filed with the board of supervisors in this case does not contain an averment of any of the facts necessary to confer jurisdiction on the board of supervisors of the subject-matter in this case.

But grant for the sake of argument, and for that only that the petition in this case was sufficient, still the order entered by the board would still be null and void, for being a court of limited and special jurisdiction in this instance, their order or judgment must speak for itself; and must affirmatively show on its face every fact necessary to confer jurisdiction upon them, but by reference to the order complained of, the court will see that it does not recite one single fact sufficient to confer jurisdiction upon them.

In the case of Henry v. Board of Supervisors of Sunflower County, reported in 71 So. 742, this court says:

"The record in this case fails to show the number of square miles contained in district No. 2 of Sunflower county, and in fact it is only by indulging a presumption that we know from the record that district No. 2 of Sunflower county means supervisors district No. 2 of Sunflower county. The record does not show that the territory embraced in the proposed stock-law district under consideration is one or more townships or a part of two or more townships or less than thirty-six square miles, or that it is a part or parts of the county separated by natural boundaries. All these facts are jurisdictional, and must affirmatively appear of record before an act of the board of supervisors is valid. Garner v. Webster, County, 79 Miss. 565, 31 So. 210. In the exercise of the statutory power conferred on the board of supervisors to establish stock-law districts the board is a court of limited and special jurisdiction, and the judgment of such courts are not, in and of themselves, evidence of the right of jurisdiction, nor of its lawful exercise; but every jurisdictional fact must be shown on the record. Bolivar County v. Coleman et al., 71 Miss. 832, 15 So. 107; Lester v. Miller, 76 Miss. 309, 24 So. 193.

Under the statute, in order for the board of supervisors to pass a valid order putting in force the stock-law, their records must affirmatively show that the territory, being less than a whole county, includes one or more townships or a part of two or more townships not less than thirty-six square miles, or a part or parts of the country separated by natural boundaries. The circuit court cannot make judicial notice of the boundary lines of the supervisor's districts. Elzey v. State. 70 So. 479. The record in this case does not show, as it must, that the statutory requirements were complied with. This case is reversed, and judgment here for the petitioners.

On the trial of this case in the court below, it developed from the evidence, that the territory sought to be included in the stock-law district included both rural and municipal territory, which is in violation of section 3 of chapter 217, of the Acts of the legislature of 1914, under which the board of supervisors were attempting to act, and the trial court realizing that this could not be done, ipso facto, converted himself into a sort of ex-officio board of supervisors and undertook to create a stock-law district by chopping the head off of the one created by the board of supervisors and still trying to retain life in its body.

He lopped off all of the municipal territory embraced in their order, and declared a stock law to be in force in all of supervisor's district No. 1, except the corporate limits of the town of Inverness.

The legislature of this state has seen fit to confer the power of creating stock-law districts, in a limited way, upon the boards of supervisors of the several counties of the state, and not upon the several circuit judges, and when a stock-law case is brought up before them for review--which is frequently the case--his sole duty in the matter is to pass upon the acts of the board and not to undertake to act for them.

Therefore, I submit to this court, that the action of the trial court was without authority of law, and is null and void.

Moody & Williams and J. M. Forman, for appellee.

In behalf of the appellant it is claimed that the board of supervisors did not acquire jurisdiction, and therefore, the circuit court did not acquire jurisdiction, even by certiorari, to enter such order as the board of supervisors should have entered in the first instance--because it is said:

First, that the petition to have a stock law declared to be in force in supervisors district No. 1 did not, on its face, recite that it was signed by a majority of the resident freeholders or leaseholders for a term of three years or more--and, furthermore that the petition did not recite that supervisors district No. 1 contained one or more townships of the county, etc.; and Second, while the record shows that the petition was, in fact, signed by a majority of the resident freeholders or leaseholders for a term of three or more years, yet the record as made by the board of supervisors, fails to show that supervisors district No. 1 is composed of more than one township, and that the town of Inverness is located therein.

These questions we will discuss under separate headings:

As to whether the petition itself should recite that it was signed by a majority of the resident freeholders or leaseholders for a term of three or more years, and as to whether the petition itself should recite that supervisors district No. 1 contains more than one township, we direct your attention to the following:

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