Jarvis v. Board of Supervisors

| Miss. | Oct 15, 1873

'IArBeLR, -L,

delivered the opinion of the court.

Mandamus by plaintiffs in error to compel defendants in error to ,l©vy a tax for the payment of warrants issued by the school directors of Warren county, in payment of indebtedness for the erection of school houses. The warrants were issued between Nov. 20, 1871, and April 1,1872, and drawn generally on the school house fund, without the designation of the sub-district in which the school house was built, in payment of which the warrant was issued. Neither does the petition for mandamus show this fact. The writ was denied and the petition dismissed. Thereupon a writ of error was prosecuted to this court.

Several questions are presented by the record.

1. It is insisted that the law approved April 4, 1872, pamphlet Acts, p. 19, restricting boards of supervisors in the. amount of taxes they may levy in any one year, conferred upon the defendants in error a discretion in providing for the public interests and demands, which discretion, in apportioning the county levies, can not be controlled by m,andamus. To this it is replied, that the indebtedness involved was created and the warrants .issued prior to the passage of the law referred to, and that; therefore, it constitutes no bar to the writ.

Upon this point, 4 Wall, 535, and 5 Wall, 705, are cited.

2. Referring to §§ 2014, 2025, and 2053, of the Code, it is urged that the warrants set out in the petition should havé been drawn upon the fund of the respective sub-districts, and not upon the general school house fund of the county.

In reply to this objection, it is averred, in brief, in an amended petition, that the Act approved July 4,1870, was in force at the time the contract for the erection of the school houses, for which the warrants described, was entered into, and hence, that this case ought to be determined by the statute of 1870. Pamphlet Acts, 3870, p. 1, §§ 2 and 32.

3. By § 1384 of the Code of 1871, the courts are opened to those having claims against a county, and its property is thereby subjected to the satisfaction of any judgment obtained. Hence it is contended that the proceeding by mandamus does not lie, and 28 Miss., 38" court="Miss." date_filed="1854-10-15" href="https://app.midpage.ai/document/carroll-v-board-of-police-8256765?utm_source=webapp" opinion_id="8256765">28 Miss., 38; 2 Hill, 45; 10 Wend., 395; 3 Barr, 1207; 15 East., 117; and 1 Cow., 417" court="N.Y. Sup. Ct." date_filed="1823-10-15" href="https://app.midpage.ai/document/ex-parte-nelson-5464011?utm_source=webapp" opinion_id="5464011">1 Cow., 417; are cited in support of this objection. It is replied to this, that by a late statute, school directors have been superceded by the boards of supervisors, upon whom have been conferred all the powers and duties of the former; that the city of Yicksburg constitutes a separate school district, the remainder of the county constituting- another school district, the city not being liable to pay any part of the debt in controversy ; that the plaintiffs in error have not a “ plain, speedy, and adequate remedy in the ordinary course of law,” as they are guaranteed by § 1522, Code of 1871, and hence are entitled to the writ of mandarmos; citing, 28 Miss., 38; 24 ib., 439; 9 S. & M. 77; 40 Miss., 269; 44 ib., 393 ; 45 ib., 614; in support of the positions asserted.

4. By § 1519, Code of 1871, demand of performance is a necessary prerequisite to this writ. Demand is averred in the petition in this case, and is traversed in the answer. On the hearing, a witness was introduced without objection and without the demand of a jury by either party. The Code, § 1520, provides, that “ the pleadings and proceedings ” by mandamus, shall be the same, in all respects, as nearly as may be, * * * as in ordinary action for the recovery of damages.” It is therefore claimed, that there should have been a jury to pass upon the fact of demand, and that the omission to call a jury is a fatal error. The question involved is, what constitutes a waiver of a jury under § 649 of I he Code?

Upon what ground the action of the circuit court was predicated does not appear. Want of consideration is not claimed to exist as a defense to these warrants, nor is fraud averred in their issuance or otherwise. Referring to the several questions presented, it is considered, that one only need be’ now discussed.

It is insisted by the plaintiffs in error, that the action of the school directors and the issuance of the warrants mentioned herein, were in conformity with the law of 1870, under which, it is averred in the petition, the contract for the erection of the school houses, for (he building of which these warrants were issued, was executed. On the part of the defendants in error it is contended, that the proceedings of the school, directors should have conformed to the law of •1871. . .

• By section 2, of the law of 1870, ch. 1, p. 1', each county in the State is declared to constitute one school district, ex^ cept, that any incorporated city containing more than five thousand inhabitants, shall constitute a separate school dis* trict. Under the operation of this statute,. Warren county was divided into two districts, the city of Vicksburg'forming one, and the remainder of the county the other district! Section 23, of this law, required 'the board of county supervisors, and the city council of Vicksburg, to appoint each!, a board of school directors, for their respective districts, the one for the city, and the other for the remainder of .the .county. The boards of school directors were, by section 27, declared to be bodies corporate, with power to sue and be sued!

■ These boards were empowered by section 28, to make all needful rules necessary to aid in the discharge of the duties of their offices; to divide their respective districts into sub¡districts for the accommodation of the children to be educated ;■ to procure grounds and buildings; to.hire teachers; and to establish graded schools.

• By section 31, the school directors were required to report to the board of supervisors an estimate of the cost of sites and buildings “ for each and every sub-school district in the county or city.” >

So much of section 32 as bears upon this case is as follows: “That it shall be the duty of the board of county supervisors thereupon, to levy a tax upon the taxable property in each district, sufficient to defray such estimated costs and expenses for said district; Provided, That no more thafi ten mills on the dollar shall be levied for school house purposes, * * *. The tax thus levied shall be collected in the same manner as other county taxes are by law collected; and shall be paid to the county treasurer, who' shall keep a separate account with each district in the county, and shall credit each district with the amount thus collected and paid. All moneys thus raised shall be held as separate funds, to be known and called the £ School House Fund,’ or ‘ Teacher’s Fund;’ Provided, That any funds now due, or that may become due before the first day of January,'1871, arising from the interest on the proceeds of any lands heretofore, and especially reserved and appropriated by act of Congress, for the use of the schools in any township, may be appropriated for purchasing school sites, or constructing school houses, within such townships or counties.”

The provisions of the Code are in the main similar to to those of 1870. Section 2053, of the former, corresponding with section 32 of the latter, has this important qualification, viz: “ Provided, that the tax levied for school house purposes shall be levied.upon the property of the sub-district in which the school or schools shall be established.”

The petition in this case does not set out the sub-districts in which the- school houses were erected, for which these warrants were issued. That this was necessary, would seem to .follow from the following considerations:

1. The averment that the contract for the building of the school houses was entered into under the law of 1870, is indefinite, vague and uncertain. !

2. The requirement of the law of 1871, “ that the tax levied for school house purposes shall be levied Upon the property of the sub-district,” affects the remedy only, and not the contract.

3. Section 31, of the law of 1870, devolves upon the school directors the duty of submitting to the board of- supervisors an. estimate of “ the cost of school sites, construction. and rental of such number of suitable school buildings as may be necessary to afford school facilities for each- and every sub-school district in the county or city? and also for repairs upon school buildings.

. Section 32 makes it the duty of the supervisors, “ thereupon to. levy a. tax, upon the taxable property in each district, Sufficient to' defray such estimated costs and expenses for said district,” and it provides for. the appropriation, of moneys arising from the interest on the proceeds of any lands heretofore granted by act of Congress, to the purchase of sites or the construction of school houses within the township, for the use of which such lands were reserved.

It is made the duty of the county treasurer, by section 40, of the law of 1870, to “ require all orders upon him for the payment of school moneys, to specify the fund on which it is drawn, and the specific use to which it is applied?'

Hence, justice requires, that, in the execution of the law of 1870, if that law governs this case, the tax under section 32 should be levied upon the sub-districts mentioned in section 31, and not in solido upon the “ district,” as defined in section 2, The duty required in section 32, to levy the tax, is in pursuance of the estimates “for each and every sul~ school district in the county or cityf according to section 31.

If a case were otherwise made out for the writ, the court could not make the necessary order upon the supervisors for a levy of the desired tax, in the absence of information as to the sub-districts and the cost of buildings in each. For this omission on the part of the petitioners, the judgment will be affirmed. No application to further amend the petition to obviate the objections of the court below or those herein expressed, is shown by the record, but other facts and considerations are relied on to overcome these views.

Judgment affirmed.