Board of Supr's. v. Dean, 82 So. 257

Board of Supr's. v. Dean

82 So. 257 | Miss. | 1919

Smith, C. J.-,

delivered the opinion of the court.

This is an appeal from the judgment of the court below granting the prayer of a petition for a writ of mandamus to compel the board of supervisors of De-Soto county to issue the bonds of a road district created and the issuance of the bonds thereof alleged to have been authorized under the provisions of chapter 173 of the Laws of 1916 and chapter 214 of the Laws of 1918. cThe petition alleges, in substance, that the board of supervisors, pursuant to a numerously signed petition praying therefor, entered an order creating a road district within a supervisor’s district defining the boundaries thereof, and published notice that it would proceed to issue the bonds of the district under the provisions of chapter 173 of the Laws of 1916, and upon the filing of a protest against the issuance thereof by the required number of qualified electors of the proposed district an election to determine whether or not the bonds should be issued was called. The order by which the election was called also eliminated four sections of land from the proposed district, and provided:

“That, in the event of the election resulting1 in the creation of the proposed district, and in the issuance of the bonds of same, the board still reserves the right to hear complaints of landowners of the proposed district that they recieve no benefit from the proposed road improvement. ’ ’

The questions ordered, to be submitted at the election were: '

“Do" you favor the creation of Yazoo Delta Continuous Highway taxing district, and issuing bonds of *344same in a sum not to exceed seventy-five thousand dollars ¶ ”'

“Do you oppose the creation of Yazoo Delta Continuous Highway taxing district, and issuing bonds of same in a sum not to exceed seventy-five thousand dollars'?”

The election was held by the election commissioners, who reported the result thereof to the board of supervisors, which entered an order upon its minutes reciting that a majority of the qualified electors had voted for the creation of the district and for the issuance of the bonds. This order further recited that: “It now appearing to the board that a bond issue at the present time would not be to the interest of the property holders of said district, it is ordered by the board that the issuance of said bonds be deferred to a more convenient season. But, before any order directing the issuance of bonds is made, notice will be given the property owners of said district that at a designated meeting of the board all requests by any of said property owners to have their land released from said district will be heard and disposed of. And until the giving of said notice all other matters and things are reserved.”

Another order was afterwards entered eliminating certain land from the district. The notice of the election published. by the. commissioners of election was addressed to the qualified electors, but recited in the body thereof, in substance, that the election was to be participated in' by the registered voters of the proposed district who owned land situated therein.

A demurrer interposed to this petition was overruled, and the board was ordered to proceed in accordance with the provisions of chapter 173 of the laws of 1916 with the issuance of the bonds of the district as defined by its order calling the election.

The reasons assigned by counsel for the appellant for reversal of the judgment in the court below are: First, the issuance of the bonds here in question cannot be *345enforced by means of a ' writ of mandamus, the ap-pellees ’ remedy being, an appeal to tbe court below from the order of the board of supervisors declining to issue the bonds; second, chapter 173 of the Laws of 1916 confers no power on boards of supervisors to create a road district, but simply confers upon -them power to issue bonds of a district already in existence; third, the board of supervisors was without power to eliminate any land from the district as defined in its original order creating the district, and its attempts so to do render this whole proceeding void; fourth, the election held to ascertain the will of the qualified electors of the district with reference of the issuance of the bonds is void for the reason that the right to participate therein was limited by the published notice thereof to registered voters owing land situated within the district.

The relief- here sought is the enforcement of the performance by the appellant of a ministerial, and not of a judicial act; consequently á writ of mandamus is the proper remedy. Board of Supervisors v. Pidgeon Thomas Iron Co., 114 Miss. 274, 75 So. 117.

Chapter 173 of the Laws of 1916 does not confer on boards of supervisors any power to create a road district, but chapter 214 of the Laws of 1918 by necessary implication does confer the power .upon such boards to create a road district of the character here in question, and does not restrict them to any particular method in doing so.

Since the statutes here in question do not prescribe the procedure of the creation of road districts thereunder, boards of supervisors may pursue their own course in doing so; consequently the appellant -had the right to change the boundaries of the district here in question prior to the calling of the election for ascertaining the wish of the qualified electors relative to the issuance of the bonds. The order eliminating land from *346the district entered after the election was held is void for the reason that the bonds authorized and which it is the duty of the board under the statute to issue are those of the district as constituted when the election was held, and this we understand was the holding of the court below.

The recital in the published notice of the election that it was to be participated in by registered voters who were landowners was mere surplusage, and did not make the election held pursuant thereto void. By the notice publicity was given to the election, and under the statute all qualified electors could participate therein, and it does not appear that any such were denied the right to do so, conceding for the purpose of the argument that that question could be here raised.

Affirmed.