Bryant v. Board of Sup'rs

98 So. 148 | Miss. | 1923

Sykes, P. J.,

delivered the opinion of the' court.

From a decree of the chancellor- validating a proposed' bond issue of the Torrance-Scuna road district this decree is here prosecuted.

The facts are as follows: The petition for the establishment of this road district was duly filed with the board of supervisors. Among other territory to be included in this district was “that part of sections 4, 5, 6,' and 7 in township 23, range 6 east, which lies north of Senna river.” The order of the board of supervisors establishing the district as prayed for by the petition includes all of section 6 in this township and range. This proceeding was had under chapter 277, Laws 1920.

The appellant by proper pleadings in the validation proceedings before the chancellor claimed that-the organization of this road district and the order of the board establishing it was void, because the board had exceeded its jurisdiction, and included in it all of section 6, whereas the petition which gave the board jurisdiction only included therein that part of section 6 lying north of Senna river; that it is apparent from this petition that only a part of this section lies north of Scun-a river; therefore that it is equally apparent that the balance or some part of this section also lies south of this river. Appellant also offered to prove this fact in the validation proceeding. The testimony was excluded, and the bonds'were validated.

In the establishment of a road district under this act, the board of supervisors acquired jurisdiction over the proposed territory or the res in question by virtue of the petition. The district created must conform to the one petitioned for. If smaller than the territory included in the petition, it would be void. Bowles v. Leflore County, 85 Miss. 390, 37 So. 707; Word v. Sunflower County, 114 Miss. 446, 75 So. 258. Likewise, if the territory included be greater than that petitioned for, the order of the board would be void, because the order does not conform to the petition, and also because the board is attempting to include within the district territory over which it has not acquired jurisdiction. Evans v. Wright, 126 Miss. 703, 89 So. 226; De Soto County v. Weatherford, 114 Miss. 259, 75 So. 114; Craft v. De Soto County, 79 Miss. 618, 31 So. 204.

It is the contention of the appellee that the order of the board, including within this road district all of this section, is an express adjudication by the board that the entire section lies north of this river. There is no such express adjudication in this order of the board, and the mere fact that it attempts to include all of this section within the district is not such a finding.

In the case of Borroum v. Purdy Road District, 131 Miss. 778, 95 So. 677, it is held that the petition and the orders of the board constitute a- part of the record. It is necessary to consider the petition upon which the order of the board is based, in order to ascertain whether the board acquired jurisdiction of the res. In this case the order does not conform to the petition. Apparently it includes more territory than that petitioned for. Appellant by his pleading and by his proof offered to show that this apparent contradiction is in fact true, and that a part of section 6 lies on the other side of this river, and therefore is not within the territorial limits of the road district. The effect of this proof would be that the hoard of supervisors has exceeded its jursidiction, which is expressly limited to the territory named in the petition, and under the above authorities its order establishing the district would be void. A void order, under the Purdy Road District Case and others above cited, can therefore be attacked in this proceeding. The court erred in not permitting this testimony to be introduced.

Reversed and remanded.