93 So. 2d 446 | Miss. | 1957
This is a controversy over the organization of an electric power district in De Soto County. By resolution of June 8, 1955, the Board of Supervisors of De Soto County created and incorporated appellee Mississippi Power District. There was a hearing before the board of supervisors prior to the resolution creating the district, at which appellants, Mississippi Power & Light Company, A. S. Henley, and nine other citizens of De Soto County appeared, protesting organization of the district. From the order creating the district, appellants, with a bill of exceptions, appealed to the circuit court. Code of 1942, Section 1195. That tribunal on April 25, 1956, approved and affirmed the board’s order of June 8. The circuit court was of the opinion that the organization of the district was in substantial compliance with the statutes. From that judgment this appeal was taken.
1.
Appellee -was organized under the Power District Act of 1936. Miss. Laws 1936, Chap. 187, Miss. Code of 1942, Sections 5439-5462. In brief, this act establishes procedures for the creation and incorporation of an electric power district, its method of government, its dissolution, its corporate powers, and financing. Under Code Section 5441 (3) (9), at least ten per cent of the qualified voters in any election unit may present a petition to the board of supervisors declaring ‘ ‘ that in the opinion of the peti
Qualified electors of the election district in which the proposed power district is to be created vote on the issue. The election is held and conducted in accordance with the general election Iuavs. Code Section 3204, et seq. After the election, the county board of election commissioners must canvass the returns, declare the results of the election, and within ten days file the report Avith the clerk of the board of supervisors. The board of supervisors must promptly canvass the report, and if a majority of those voting were in favor of creation of the power district, the board “shall order and declare the district created.” The board of supervisors then files in the office of the Secretary of State a certified copy of its order creating the power district. After this is done “the creation of such district shall be deemed complete. ’ ’
The act contemplates the use of public funds by a power district in two respects. Code Section 5441 (8) provides: “All costs properly incurred by the boards of supervisors and the boards of election commissioners of the respective counties in publishing notice of the election, in employing persons to conduct the same, or in performing other duties imposed by the provisions of this Act, shall be paid as other similar expenses of such boards are paid and shall be and become a charge in favor of such boards against the district, to be repaid upon the presentation of proper vouchers therefor to such district, when and as such district has funds available for that purpose.”
Section 5456 states: “Any municipality situated within the territorial limits of a district and any county a part of which is so situated, may advance funds to such distinct to pay the preliminary organization and administration expenses thereof, on such terms of repayment as the governing body of such municipality or county shall determine. Notwithstanding the provisions of any law to the contrary, any such municipality or county is authorized and empowered to borrow money for a period not to exceed one year from the date of such borrowing, for the purpose of making such advances.”
2.
On May 2, 1955, a petition signed by forty-six citizens of the Pleasant Hill Election District or precinct was filed with the Board of Supervisors of De Soto County. The petition asked for the creation of the Mississippi Power District under the 1936 Act, and that the boundaries of the proposed district should he made coterminous with the boundaries of the Pleasant Hill Election District, describing the same. The petition requested that an election he called for the purpose of determining whether such power district should be created.
On May 2, 1955, the hoard of supervisors entered an order calling an election for the purpose of submitting-to a vote the question of the creation of the Mississippi Power District in the Pleasant Hill Election District. The order fixed May 28, 1955, as the date for the election, and directed publication of notice of the election as required hy statute. The form of notice was recited in the order of May 2.
On May 6, 1955, appellant, Mississippi Power & Light Company, filed a protest against calling the election, and a petition to vacate and set aside the hoard’s order of May 2 calling the election. Also on May 6 the other appellants, taxpayers, filed a similar protest and petition to vacate the order of May 2. On May 11, 1955, the
On May 28, 1955, the election was held. The report of the county election commissioners reflected that there were 123 qualified voters in the Pleasant Hill District; that 64 voted in favor of creation of the power district, and 7 against; and that therefore the election was carried for creation of the power district.
On June 6, 1955, appellants filed protests against creation of the Mississippi Power District. The board of supervisors held a hearing on these petitions and protests of appellants. At its conclusion, the board, on June 8, 1955, entered an order overruling appellants’ protests and petitions, and declaring the creation of the Missisippi Power District. From this order of the board of supervisors of June 8, appeals were taken to the circuit court and then to this Court.
3.
Appellee argues that the appellants have no right, and have shown no interest, as affected parties which would warrant them in contesting the board’s order. Code Section 5441 (9), quoted above, provides that informalities “not substantially affecting adversely the legal rights of any citizen” do not invalidate the creation of a district, and that any proceedings contesting the validity must be commenced within thirty days from the date of filing the order creating the district with the Secretary of State. Mississippi Power and Light Company is a Florida corporation, qualified to do business in this State, and with a considerable investment in electric distribution lines in De Soto County, including the Pleasant Hill District. Appellee says that the company is not a citizen authorized to appeal such an order, and has shown no resulting damages. We cannot agree. The statute clearly contemplates the availability of judicial review by a person adversely affected
4.
After careful consideration, we have concluded that, because of a serious and fatal jurisdictional defect in the order of June 8,1955, the creation of appelleedistrict must be declared invalid and void. Hence we do not reach the numerous other questions raised in appellants’ briefs. A board of supervisors is a tribunal of limited jurisdiction, and its jurisdiction must affirmatively appear on the minutes of the board. Yet the order of June 8 creating the district fails to affirmatively adjudicate that any notice of the election was published, and if so, how, -where and when it was published. Nor does the record reflect any other order of the board on its minutes so adjudicating. Code Section 5441 (4), quoted above, requires the board of supervisors to give notice of the election, specifies what the notice shall contain, and provides for the method of its publication.
The record reflects that on May 30, 1955, there was filed in the records and files of the board of supervisors a proof of publication of notice of the election in a newspaper on May 5, 12, 19 and 26, 1955. This proof of publication is not in the minutes of the board of supervisors, and the board has made no affirmative adjudication that such notice was given.
It is well established that a board of supervisors is a tribunal with limited jurisdiction; that it must adjudicate in its minutes every essential jurisdictional fact; and, unless this is done, it has no jurisdiction to proceed, and any action in such matter is void. If notice of the election was not published, the board could not create the district. Publication of notice is a fundamental requirement of the statute. And such jurisdictional fact must be specifically adjudicated in the minutes of the board. The cases so holding are
In Henderson Molpus Company v. Gammill, 149 Miss. 576, 115 So. 716 (1927), appellant successfully attacked a tax sale. The minutes of the board of supervisors failed to adjudicate or affirmatively show the publication of any notice to taxpayers concerning the filing of the assessment rolls and their being open to public inspection and objections. It. was stipulated that in fact the tax assessor gave proper notice by publication in a newspaper. This was held to be insufficient. It was necessary that all jurisdictional facts appear affirmatively.
Appellee says that the PoAver District Act simply proAddes for the organization and incorporation of a poAver district, and does not deal Avith the use of public funds ; and that therefore these cases should not apply. Nevertheless, under Section 5441 (8), the cost of the election
Nor do the statutory provisions in Sections 5441 (9) and 5460, directing a liberal interpretation of the Power District Act, warrant the omission of these due process, procedural and jurisdictional requirements for boards of supervisors in the organization of a power district. The Act expressly requires publication of notice of the election. It does not change the jurisdictional requirements for actions of the board.
For these reasons, the order of the board of supervisors of June 8, 1955, creating appellee Mississippi Power District is invalid. The judgment of the circuit court is reversed and judgment is rendered here for appellants. Since this decides the case, and since it cannot be remanded for further proceedings (judgment being rendered here), it is not necessary or proper to pass upon the other issues raised in appellants’ briefs.
Reversed and judgment rendered for appellants.