Board of Sup'rs v. Ottley, 109 So. 851

109 So. 851 | Miss. | 1926

Lead Opinion

^* Corpus Juris-Cyc. References: Schools and School Districts, 35Cyc, p. 989, n. 78; p. 991, n. 90. In June, 1925, a petition was addressed to the board of supervisors of Lowndes county, asking for the issuance and sale of bonds of the Caledonia consolidated school district in the sum of twenty-five thousand dollars the purpose of which was to erect and equip a school building in Caledonia, in said county and district. At the June meeting, 1925, the board adjudicated that the petition was signed by a majority of the qualified electors of the Caledonia consolidated school district, that said district contained not less than sixteen square miles, and that the assessed valuation of the property therein was seven hundred nine thousand two hundred thirty dollars. The order defines and describes the territory, and the governmental subdivisions of the land embraced within the district, and that the bonds, when issued, did not exceed five per centum of the assessed value of the property of the district, and sustained and granted the petition. The order further provided that it was the purpose and intention of the board at its July, 1925, meeting to issue the bonds of the district in the said sum of twenty-five thousand dollars, and to order that an election be held on July 10, 1925, at the schoolhouse of such district, at which election shall be submitted the question of whether or not the said bonds should be issued, and directed that the commissioners so hold said election, and that the clerk certify the order of the board to the said commissioners.

At the July meeting the election commissioners made their report to the board of supervisors, in which they stated that the election had been held at the schoolhouse in Caledonia, in the Caledonia consolidated school district, on Friday, the 10th of July, 1925, to determine whether or not the bonds of the school district should be issued in the sum of twenty-five thousand dollars for the erection and equipment of a schoolhouse therein; that at the election one hundred twenty-two votes were cast for the issuance of the bonds, and one hundred ten against it. This report is signed by the three election commissioners of the county, but it will be noted that said report contained no reference to giving notice as provided by law, nor was there attached thereto a reference, in any manner, to proof of publication of said notice.

Upon the filing of the report at the July meeting, the board of supervisors declared the result in favor of the issuance of the bonds, and at the same July meeting directed the bonds to be issued, fixing the denomination and maturities, and ordered the clerk to advertise for bidders for the bonds, fixing Monday, the 3d day of August, 1925, for the sale of the bonds.

At the August meeting the board sold the bonds to the Meridian Finance Corporation on the above-named date, and they then set out the form of the bond. After the sale of these bonds had been entered at the August meeting, 1925, W.H. Ottley and others, taxpayers, filed a petition setting out many objections to the record in this case, protested against the issuance of said bonds, and asked the board to rescind its order directing the issuance and sale of the bonds. On the same day this protest was filed by the taxpayers, there appears in this record a proof of publication, undated, of a notice of election in the matter of the issuance of the bonds in the sum of twenty-five thousand dollars. The proof was sworn to by the publisher on the 7th day of August. This record does not disclose that this proof was ever filed; but we shall treat it as having been filed on the day of the affidavit, as it seems to have been so treated by counsel in this case. The board of supervisors declined to rescind this order and dismissed the petition, and thereafter the circuit judge of that district granted the petitioners, W.H. Ottley and others, a writ of certiorari, and, upon a final hearing of the matter, ordered that the action and proceedings of the board of supervisors in the matter of the issuance of the bonds of the Caledonia consolidated school district in the sum of twenty-five thousand dollars at its June, 1925, and July, 1925, term was void, and directed that the bonds be not issued.

There are many objections to the bond issue record in this case, some of which arise from the fact that the board of supervisors apparently undertook to issue these bonds under the school laws embraced in chapter 197 of the Laws of 1914 (Hemingway's Code, section 7357), and the board specifically ordered the election to be held under chapter 209 of the Laws of 1918.

We shall pass upon only one objection, believing and hoping in future proceedings the other questions raised here will not arise. This proceeding here is to be tested by chapter 283 of the Laws of 1924, and especially sections 105, 106, 182, 183, 184, 187, and 189 thereof. Section 106, mentioned above, providing for elections in consolidated school districts, provides and stipulates that the election shall be held at the schoolhouse of the district, or, if there be no schoolhouse, at a convenient place designated by the trustees of the school, providing further that the commissioners holding the election shall have power and authority to use the poll books of such county containing the names of the qualified electors who reside in said school district and providing further as follows:

"Notice of such election and the place designated for holding same shall be given as provided in this act."

Section 183, among other things, provides that the county election commissioners shall give no less than three weeks' notice of such election in a newspaper published in the county once a week for three weeks preceding same, or, if there be no newspapers in the county, for the posting of notice for three weeks in lieu of publication, and provides especially what the ballot shall contain. We especially note this sentence:

"The county election commissioners, or two of them, shall forthwith file with the clerk of the board of supervisors a certificate of the result of said election."

Other sections provided for the board of supervisors to enter orders declaring the result of the election, and order issuance of bonds in the event the qualified electors favored same.

While the board of supervisors ordered that notice be given by the commissioner of election, it does not appear, from any of the orders of the board in this record, that the board ever adjudicated that the qualified electors had been duly and legally notified of the holding of the election. The qualified electors were entitled to this notice under the statutes in force at the time of the election. This notice was necessary in order to give the board of supervisors jurisdiction over the qualified electors of the Caledonia district. It was necessary that the election commissioners, in their certificate of the result of the election, should show in it that notice of the election had been published in the manner and form required by law, and accompanying such report should have been a copy of said notice legally published, with proof thereof made by the publisher, as the law requires, and said notice and proof thereof should have been on file with the board of supervisors at the time the record of election was declared carried for a bond issue, and the order entered directing the issuance of the bonds. This was not done in this case. Neither the report of the election commissioners, nor the order of the board of supervisors directing the issuance of the bonds, made the slightest reference to any notice to the qualified electors of the date and purpose of the election.

Under the scheme provided by the legislature, notice was essential, and the holding of the election and proof thereof on file were essential to the validity of the order binding the qualified electors to pay the debt thereby created. The board of supervisors can only speak as to the jurisdictional facts by its written minutes. The judgment is void where the proof of publication is not on file at the time the judgment is entered.Oliver v. Baird, 90 Miss. 718, 44 So. 35. Judge ANDERSON, speaking as the organ of the court in the case of Monroe County (Splunge Consolidated District) v. Minga, 127 Miss. 702, 90 So. 443, said:

"It is argued on behalf of appellant that these cases are not controlling in the case at bar, because they are founded on the principle that the power conferred by mortgages and deeds of trust of foreclosure in pais is to be strictly construed, which they say has no application to the publication of notice of the election to issue bonds under the statute in question. In the opinion of the court there is just as much reason for strictness of construction in the one case as the other. The publication of the notice of election under section 2, chapter 207, Laws of 1920 (section 6662f et seq., Supp. 1921, Hemingway's Code), isanalogous to due process. [Italics ours.] The legislature could have provided for the issuance of the bonds by the local authorities without notice and without an election, but instead it chose to provide therefor. The notice provided is for the purpose of summoning the qualified electors to appear at a certain time and place and determine whether the bonds shall be issued or not. It is the method provided by law for getting the electors into court so to speak. It is the manner designated by the statute to get jurisdiction of the qualified electors of the district."

So far as this record is concerned, as shown by the minutes of the board of supervisors, there was no notice when the law required notice to be given. The orders were void, and consequently the issuance of the bonds is void, and the court below so held.

Affirmed.

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Addendum

ON SUGGESTION OF ERROR. Counsel for the appellants have filed a suggestion of error, attacking the holding of the court that it was essential to the validity of the order authorizing the issuance of the bonds that the proof of publication of the notice calling the election should be on file, as well as the report of the election commissioners of the result of the election, and also calling our attention to the fact that it was erroneously stated in the opinion that the circuit judge of that district granted the petitioners, W.H. Ottley and others, a writ of certiorari.

The record shows that the cause was not removed to the circuit court by a writ of certiorari, but by a direct appeal. After the record was filed in the circuit court, the board of supervisors filed a motion for a writ of certiorari, to be issued to the clerk of the board of supervisors, directing him to send up as a part of the record certain papers and orders that had been omitted, and this fact occasioned the erroneous statement in the opinion that the original proceedings were instituted by writ of certiorari. This erroneous statement as to the origin of the proceeding did not, however, affect the conclusion reached, and we adhere to the holding that the filing with the board of supervisors of the proof of publication of the notice calling the election was necessary to authorize the board to make the order directing the issuance and sale of the bonds.

Counsel urgently request that, in the event we adhere to the former opinion, we also pass upon the validity of the proceedings prior to the order of the board directing the issuance of the bonds, in order that they may determine the right of the board to now cause the filing of the proper proof of notice of the election, and then proceed to issue the bonds without another election authorizing the same.

In response to this request it will be necessary for us to pass upon only one further objection to these proceedings of the board. In the exercise of the statutory power conferred upon boards of supervisors to issue bonds of a school district, the board is a court of limited and special jurisdiction, and in the exercise of this statutory authority all necessary jurisdictional facts must appear of record. Section 189, Laws of 1924, provides that:

"No county, rural separate, or consolidated, or other school district, . . . shall issue bonds under the authority of this act to an amount that added to the outstanding bonded or floating debt of such county, rural separate, or consolidated, or other school district, as the case may be, will amount to more than fifteen per cent. of the assessed value of the taxable property in such county or district."

Under the limitation of this provision the board has no authority to issue bonds of a school district to an amount which, added to the outstanding bonded or floating debt of such district, will amount to more than fifteen per cent. of the assessed value of the taxable property of the district, and that the bonds proposed to be issued, when added to such outstanding bonded or floating debt, will not in fact amount to more than fifteen per cent. of the assessed value of the taxable property of the district, is a jurisdictional fact which must appear on the face of the record. In the order directing the issuance of the bonds in the case at bar, the board adjudicated that the bonds proposed to be issued did not exceed five per cent. of the assessed value of the taxable property of the district, but this is in no sense an adjudication that these bonds, when added to the outstanding bonded and floating debt of the district, will not amount to more than fifteen per cent. of the assessed value of the taxable property of the district. It nowhere appears on the face of the record what, if any, the amount of this outstanding debt is, or that this debt, when added to the proposed bonds, will not amount to more than fifteen per cent. of the assessed value of the taxable property of the district, and in the absence of an adjudication of this necessary jurisdictional fact the board of supervisors was without authority to proceed to direct the issuance of the bonds.

The suggestion of error is overruled.

Overruled.