Dye v. Mayor, 80 So. 761

80 So. 761 | Miss. | 1919

SteveNS, J.,

delivered the opinion of the court.

Appellants, as complainants in the trial court, sought by their bill in equity to enjoin the mayor and board of aldermen of the town of Sardis from issuing and selling thirty-five thousand dollars of the bonds of the Sardis separate school district. The bill charges that the Sardis separate school district is illegally organized, and that the bonds of said district have not been legally authorized in that- certain irregularities existed in the holding of the election authorizing the bonds. The defendants answered' the bill, and upon issue joined proof was taken, the cause submitted for final hearing and a decree rendered dismissing the bill. The complainants as citizens and taxpayers of the separate school district attempted by this proceeding to show that a majority of the qualified electors residing in the territory added to the separate school district did not in fact join in the petition to the county school board praying that territory be added. They also attempt to show that certain illegal votes were cast in the bond election, in that certain electors were not legally registered. They also contend that two of the judges appointed by the mayor and board of aldermen to hold the election were not legally appointed judges.

In disposing of the present appeal, it is unnecessary to relate fully the history of the Sardis separate school district as originally created and as afterwards enlarged. By an act of the legislature in 1888 (Laws 1888, chapter 293), the municipality of Sardis was constituted a separate school district, and ever since the said town and certain adjoining territory has been operated as a separate school district, owning a school building, and annually levying a tax for the support of the school. In 1.917 the mayor and board of aldermen, acting for the Sardis separate school district, planned the erection of a new school building, and for this purpose gave notice of its intention to issue thirty-five thousand dollars of school bonds to erect a building and purchase additional school lands. There was, upon protest, an election upon the question of the issuance of these bonds, and the returns of the election were in favor of the bonds. But the first issue contemplated by the fiscal officers of the district was not in fact issued. It is stated by counsel that in preparing the transcript of the record of this first issue it was discovered that no proper record had been made of the taking in of fifteen sections of land lying outside of the corporate limits of Sardis. It does appear that in May, 1917, a petition was presented to the county school hoard asking that certain territory be added to the Sardis separate school district; that this petition came on for hearing before this county school hoard, and the hoard entered its order adding the proposed -territory. There was no appeal from this order of the county school board.

The mayor and hoard of aldermen of the town, acting for the separate school district as thus formed, again gave notice of its intention to issue thirty-five thousand dollars of bonds for the erection of the school building and the purchasing of additional lands. There was a counter petition, and upon this protest the board ordered an election. For the purpose of holding the election the board appointed three managers of the election, and the election was held upon the day fixed, the votes canvassed and the result declared in favor of the bonds. Thereupon followed the present litigation.

The contention is made, and correctly so, we think, that the Sardis separate school district has been created under legislative authority, and as such becomes an instrumentality of the government for school purposes; that being a governmental arm of the state, the legality of its organization cannot be inquired into or attacked in the present proceeding. The bill in this case presents purely a collateral attack upon the organization of the district. As stated in Am. & Eng. Enc. of Law (2d Ed.), vol. 25, p. 34:

“The regularity of the formation and organization of a school district cannot be called in question in a merely collateral suit.”

This question has been many times presented to the courts of other states and the point ruled adversely to the contention made by the complainants in their bill. In Stewart v. School District, 30 Mich. 69, the court, by Cooley, J., well observes:

“If every municipality must be subject to be called into court at any time to defend its original organization and its franchise at the will of any dissatisfied citizen who may feel disposed to question them, and subject to dissolution, . . . or to be crippled in authority and power if defects appear, however complete and formal may have been the recognition.of its rights and privileges, on the part alike of the state and its citizens, it may very justly be said that few of our municipalities can be entirely certain of the ground they stand upon, and that any single person, however honestly inclined, if disposed to be litigious, or overtechnical and precise, may have it in his power in many cases to cause infinite trouble, embarrassment, and mischief.”

This language of the supreme court of Michigan was quoted wfith approval by the supreme court of 'Wyoming in School District No. 21 v. Board of Commissioners, 15 Wyo. 73, 86 Pac. 24, 11 Ann. Cas. 1058. Paragraph 2 of the headnotes of the case mentioned (86 Pac. 24 [15 Wyo. 73, 11 Am. Cas. 1.058]) states the conclusion there reached by the court, and indicates clearly the general rule as follows:

“For the purposes of a suit to enjoin payment of a special school tax to a school district, the district must be presumed legally organized and existing, as its existence can be inquired into only in direct proceedings.” '

In State v. Ryan, 41 Utah, 327, 125 Pac. 666, the principle was applied to the extent of denying a resident and taxpayer the privilege of bringing an action of quo warranto to test the legality of a school district when the attorney general had. refused to institute the proceedings; the court saying:

“Such a corporation is, nevertheless, > one that is created by the laws of this state, and is an arm of the state through which the state government, to some extent at least, is benefited. What right has a private individual, without some special interest, to rush into the courts of the state, and ask to dissolve governmental agencies of the state? Although the organization of such an agency may be very irregular, yet the. state, whose agent it is, for very good and sufficient reasons, may not desire the agency to he dissolved.”

In El Paso v. Ruckman, 92 Tex. 89, 46 S. W. 26, the court, by Gaines, C. J., said:

‘ ‘ The rule is well established that when the creation of a public corporation, municipal oí gwasi-municipal, is authorized by statute and a corporation has been organized under the color of such authority, its corporate existence cannot be inquired into by the courts' in a. collateral proceeding.”

This language was quoted with approval in Coffman v. Goree Independent School Dist. (Tex. Civ. App.), 141 S. W. 132. This subject was considered and conclusions in harmony with the present holding announced in the following cases: People v. Powell, 274 Ill. 222, 113 N. E. 614; Connine v. Smith, 190 Mich. 631, 157 N. W. 450; Shriver v. Day, 276 Ill. 403, 114 N. E. 818; Wood v. Calaveras, 164 Cal. 398, 129 Pac. 283. Other cases in point axe cited in the briefs.

There can be no contention in this case that the creation of the Sardis separate school district is a nullity. Eegardless of any attempt, however futile, to add outlying territory, the municipality of Sardis was originally created a separate school district, and certainly the territory embraced within this municipality has continued to be a separate school district. The mayor and board of aldermen, acting for the district, are now attempting to issue and sell the bonds of the district as such, and certainly it cannot be contended that no district at all exists. The learned chancellor held that it was incompetent to attack the district in the present proceeding, and his ruling on this point is , accordingly affirmed.'

There is a further contention that the bond election is void because certain persons living outside of the town of Sardis, but within the separate school district, were permitted to vote without being properly registed. The clerk of the board of aldermen was directed by order of the board to register those voters who lived within the district but outside the corporate limits of the town, and who desired to register and participate in the election. In doing this the clerk, it appears, procured and used a blank book upon which he registered all persons duly presenting themselves for registration, and whom he decided were qualified electors and entitled to participate in the bond election. There was an effort to show that this registration was irregular in that the proper books were not used by the clerk and the proper oath administered. Those favoring and those opposed to the bond issue took part in the election. Many of the voters were challenged, but it seems that the legality of the registration was not raised until the present litigation. There was no showing that any of the voters who registered and took part in the election were not qualified electors under the general election laws of the state. On the contrary they were duly registered in the county, and were qualified generally as voters, and the election officers had before them the regular municipal and precinct registration book as well as the special registration. Complainants failed to show that any person was permitted to vote who was not a bona-fide resident of the Sardis separate school school district and otherwise qualified generally as a legal voter. They also failed to show that the result of the election would have been against the bonds in event certain voters had not been permitted to participate in the election. There is no charge of fraud, and the returns of the election were not contested except by the present bill. It follows that under the facts and circumstances shown by the present record complainants utterly failed to make out a ease.

There is no merit in any ground of attack presented by the bill. The purposes of the present bond issue are laudable and worthy. The old schoolhouse has served well its day; it stands now as silent but sure evidence of the mutability of nature. Its walls, streaked and scarrel by time and the mischievous assaults of the irrepressible school boy, must fall before a modern and more commodious building.

On all points raised, the decree of the learned chancellor is affirmed.

Affirmed.