Aden v. Board of Sup'rs

107 So. 753 | Miss. | 1926

^* Corpus Juris-Cyc. References: Counties, 15 C.J., p. 466, n. 12. Highways, 29 C.J., p. 402, n. 18, 19; p. 403, n. 47; p. 416, n. 41; p. 417, n. 49; p. 464, n. 83, 85; p. 466, n. 37. On the 3d day of March, 1925, there was filed with the board of supervisors of Issaquena county a petition praying for the laying out and establishment of a public road over a route therein particularly described. This petition recited that the petitioners were freeholders and householders of said county of Issaquena, and it contained the names of thirty-seven signers. Upon the filing of this petition it was spread on the minutes of the board of supervisors, and on the same day an order was passed by the board directing the issuance and service of process on the owners of land through which it was proposed to lay out the road, to show cause why the prayer of the petition should not be granted. This order directed that this process should be returnable before the board of supervisors on March 11, 1925, and afterwards, by an order entered on its minutes, the board adjourned the regular March, 1925, meeting to Wednesday, March 11, 1925, for the sole purpose of hearing the petition in question. Process for the landowners was issued as directed, and it was executed and returned by the sheriff, and on March 11, 1925, the board of supervisors convened and passed the following order:

"There came on for hearing the petition of the W.W. Gary Lumber Company, J.J. Hughes, Dr. J.B. Benton, C.C. Tye, and others, as copied and set out in the minutes of the board of the regular March meeting in minutes book K, pages 173 and 175, and which petition prays this board to lay out and open a public road or highway, as described in said petition, and, there being no counter-petition filed, the board heard the parties for the petition, and, there being no parties against the petition, it is the deliberate opinion and determination of the board that the prayer of the petition ought to be granted as prayed for; and further finding that the property owners through whose land the proposed road is to run have been duly and legally served with notice to show cause why the prayer of said petition should not be granted

"And it is therefore ordered that the prayer of said petition be granted, and that W.H. Brown and George F. Crozier, two members of this board, of districts other than that in which the proposed road is to be located, are hereby appointed a committee to examine and view the contemplated route of the road, and if they find the same practicable, they shall lay out and mark the road and report their proceedings in writing to the regular April meeting of this board."

Further proceedings were had by the commissioners appointed to examine the contemplated route of the road, and to lay out and mark the same if found to be practicable, and, upon the coming in of the report of these commissioners at the regular April meeting of the board of supervisors, it was ratified and confirmed. Thereafter, the appellants, who were owners of land through which the proposed road ran, and who were not parties to the petition, filed their petition for a writ of certiorari, and the same was granted by the circuit judge. Upon the trial of the cause upon the record of the board of supervisors, the circuit court entered its order denying the relief prayed for under the certiorari and affirming the action of the board of supervisors, and granted this appeal.

There are numerous objections urged to the proceedings of the board of supervisors, but it will be necessary to consider only one, and that is that the order of the board of supervisors granting the prayer of the petition and directing the laying out of the road does not affirmatively show the necessary jurisdictional facts.

Under section 4400, Code of 1906 (section 7080, Hemingway's Code), when a public road is laid out, altered, or changed, it is required, among other things, that a petition therefor shall be filed with the board of supervisors of the county, signed by ten or more freeholders or householders of the county interested in the road. In laying out and opening public roads, the board of supervisors exercises only a special and limited statutory authority, and, in the exercise of this authority, it is necessary that all necessary jurisdictional facts appear of record. Craft v. De Soto County, 31 So. 204,79 Miss. 618.

In the case of Hinton v. Perry County, 36 So. 567, 84 Miss. 546, in discussing the exercise of special and limited authority by a board of supervisors, the court said:

"Its jurisdiction being, in this matter, limited, the minutes must show that the jurisdictional facts were found to exist."

In the case of Adams v. Bank, 60 So. 770, 103 Miss. 744, it was held that an order of the board of supervisors attempting to assess for back taxes was the record of its proceedings relative thereto, and that the order "must set out sufficient facts to show that it had jurisdiction of the person and subject-matter."

That ten of the signers of the petition for the laying out and opening of the road in this case were freeholders or householders of the county is a necessary jurisdictional fact, and there is nothing in the orders or proceedings of the board of the supervisors to show that fact. It is true that more than ten names were signed to the petition, but the orders and proceedings of the board of supervisors nowhere shows that the board found or adjudicated that ten of these signers were freeholders or householders. Nothing can be presumed in favor of the jurisdiction of the board, and the mere recital in the face of the petition that the signers thereof were freeholders or householders does not establish that they were such in fact, and cannot take the place of a finding by the board of supervisors that this necessary jurisdictional fact existed.

The judgment of the court below will therefore be reversed, and the case remanded.

Reversed and remanded.