Yow v. Tishomingo County School Board

• Decision Date: 01 February 1937
• Docket Number: 32563
• Court: Mississippi Supreme Court
• Parties: YOW et al. v. TISHOMINGO COUNTY SCHOOL BOARD et al

172 So. 303

177 Miss. 821

YOW et al. v. TISHOMINGO COUNTY SCHOOL BOARD et al

No. 32563

Supreme Court of Mississippi

February 1, 1937

Division B

1. SCHOOLS AND SCHOOL DISTRICTS.

"School districts" are governmental agencies for education of youth of the state and are public bodies, not private.

2. CONSTITUTIONAL LAW.

There can be no vested right to taxpayer in school district not to pay tax on ground school district was void, until final adjudication of school district's validity.

3. CONSTITUTIONAL LAW.

Private rights of parties, which have been vested by the judgment of a court, cannot be taken away by subsequent legislation, but must be thereafter enforced by the court, regardless of such legislation.

4. CONSTITUTIONAL LAW.

Public right, even after it has been established by the judgment of the court, may be annulled by subsequent legislation, and should not thereafter be enforced; although so far as a private right has been incidentally established by such judgment, it may not be thus taken away.

5. CONSTITUTIONAL LAW. Schools and school districts.

Statute validating all consolidated school districts in operation more than two years, passed while suit was pending to have school district declared void and to enjoin collection of tax and before judgment, which excepted from its operation any such district which had been declared invalid by court of competent jurisdiction held not to interfere with due process by taking away existing right not to pay tax involved, or encroach on the judicial branch of government (Laws 1936 chap. 261, sec. 3).

6. SCHOOLS AND SCHOOL DISTRICTS.

Suit to have consolidated school district declared void and enjoin collection of all taxes levied held properly dismissed where during pendency of suit Legislature passed statute validating all consolidated school districts in operation more than two years (Laws 1936, chap. 261, sec. 3).

HON JAS. A. FINLEY, Chancellor.

APPEAL from the chancery court of Tishomingo county Hon. JAS. A FINLEY, Chancellor.

Bill in equity by J. F. Yow and others against the Tishomingo County School Board and others. Decree dismissing the bill, and plaintiffs appeal. Affirmed.

Affirmed.

Clark & Clark, of Iuka, for appellants.

Since it was agreed that the proceedings of the school board in creating this special school district were void, the only question before the court is whether the act of the Legislature applies to. this case for the reason the suit had already been brought, process issued and served and answer of defendants and the court held but for this act he would be compelled to hold that the creation of the district was void.

The passage of this act so far as this controversy to concerned is nothing more than an abatement of this suit. Under our scheme of government we are divided into three distinct departments, legislative, judicial and executive, and section two of the Constitution provides that no person or collection of persons being one or belonging to one of these departments shall exercise any power properly belonging to either of the others, etc.

Miller v. Hay, 143 Miss. 471, 109 So. 16; Miller v. Fire Ins. Co., 143 Miss. 489,

The Legislature would have no power to abate a pending suit brought by an individual as in the case at bar and the act set up as a defense to this cause of action is nothing more than an abatement of the suit and as admitted in the pleadings by the appellee the object of this curative statute was to validate the acts of the school board in creating this school district.

12 C. J. 833, sec. 310.

There can be no question but that these appellants had a vested right when they commenced their proceeding in the chancery court to declare the acts of the school board in creating this school district void.

6 R. C. L., page 316, sec. 304, page 162, par. 162 and page 322, sec. 311.

We say that under the separation of the powers of our government that the Legislature by the passage of this curative act interfered with a judicial function of the government and so far as this controversy is concerned that the same cannot apply to the facts of this case. We argue that this act of the Legislature so far as this cause of action is concerned did nothing more or less than create a defense to the cause of action.

Richards v. City Lumber Co., 57 So. 977; McSurely v. McGrew, 132 A. S. R. 248; McCord v. Sullivan, 89 A. S. R. 561; Caston v. Wilkinson County Board, 154 So. 714.

W. C. Sweat, of Corinth, for appellees.

Senate Bill No. 272, being chapter 261 of the Acts of 1936, had the effect of validating all consolidated school districts and special consolidated school districts regardless of any defects in their organization where the said district had been operating as a consolidated school or special consolidated for a period of two years; and in the case at bar ir was admitted that this school had been operating as such for three years.

While the above act was the only one that was referred to in the pleadings there was also another act, passed by the Legislature in 1936, which is chapter 263 of said acts, which validated all school districts of every kind in the state regardless of the length of time they had been operating. This act was approved March 23, just six days following the approval of the other act referred to which was approved on March 17.

The acts of the county school board in forming this consolidated school district were ineffective under the decisions of this court to forma legally constituted special consolidated school district by reason of irregularities and defects in the proceedings of the school board in forming such district; but ir has been repeatedly held by this court that curative acts of the Legislature such as the ones above referred to have the effect of curing all such irregularities and defects and of making the school districts valid which had prior thereto been invalid and illegal, and so far as I have been able to find this is not only the rule in this state but the general rule in all jurisdictions.

Cahoon v. Scarborough, 159 Miss. 5, 131 So. 431.

What the Legislature can authorize others to, do it can do itself. It can therefore legally provide that all consolidated and special consolidated and other school districts formed by the county school board however defectively or irregularly organized shall be valid and legal school districts. That is what they did in this instance and it had the effect of validating and making legal this special consolidated school district.

Bullett v. Sanford Consolidated School District, 153 Miss. 476, 121 So. 267; Hopewell Line Consolidated School District v. County School Board of Simpson County, 161 Miss. 246, 132 So. 566; Evans v. Wright, 126 Miss. 703, 89 So. 226; Griffith v. City of Vicksburg, 102 Miss. 1, 58 So. 781.

It is clear from the decisions of this court that these curative acts above referred to had the effect of making this school district a legal and valid district and cured all the defects and irregularities.

It is no interference with the judicial department of the state government and is not an abatement act, although in this particular instance it may have the effect of abating this suit. It is a curative act pure and simple, and if it has the effect of abating this suit that is purely incidental.

Such statutes have been held valid when clearly just and reasonable, and conducive to the general welfare, even though they might operate in a degree upon existing rights; and when passed after the commencement of an action disputing the legality of certain proceedings, cured by the passage of such act, may be urged as a defense to such action.

6 R. C. L. 320, sec. 309; Roehe v. Waters, 72 Md. 264, 19 A. 535, 7 L.R.A. 533; Grim v. Weissenby School District, 57 Pa. St. 433, 98 Am. Dec. 237; Shields v. Clifton Hill Land Co., 94 Tenn. 123, 28 S.W. 668, 45 A. S. R. 700, 26 L.R.A. 509; Windsor v. Des Moines, 110 Iowa 175, 81 N.W. 476, 80 A. S. R. 280; Hodges v. Snyder, 67 L.Ed. 819; Smallwood v. Gallarado, 76 L.Ed. 152.

This curative statute was in no manner an interference with a ny vested rights on the part of these appellants. They had no vested rights not to be in a special consolidated school district. The Legislature could, by its legislative fiat, divide the entire state up into special consolidated school districts, or could authorize school boards to create and organize such consolidated school districts without any notice to citizens and taxpayers that they expected to do so.

The fact that they had filed a suit in court to declare this district void did not increase any rights that they already had. Whatever rights they had they had before the suit was filed and the filing of the suit did not give them any additional rights except possibly such cost as they might have incurred, and this the court below taxed against these appellees.

Windsor v. Des Moines, 110 Iowa 175, 81 N.W. 476; Huff v. Cook, 44 Iowa 639; Iowa Land Co. v. soper, 39 Iowa 112; Iowa Assn. v. Heidt, 107 Iowa 297, 70 A. S. R. 197; Iowa Assn. v. Curtis, 107 Iowa 504, 78 N.W. 208; Sullivan v. Ammons, 95 Miss. 196, 48 So. 214.

OPINION

Anderson, J.

Appellants, taxpayers in the Burnsville Special Consolidated School District in Tishomingo county, filed their bill in the chancery court against appellees Tishomingo County School Board and the sheriff and tax collector of the county, seeking to have the district declared void for reasons set out in the bill, and enjoining the collection of all taxes levied and to be levied against their property in the district. The cause was heard on bill, exhibits thereto, answers, and agreed facts, resulting in a decree dismissing the bill; from which decree appellants prosecute this appeal.

...