Opinion
No. 30430.
February 20, 1933.
1. CERTIORARI.
Inferior tribunals' administrative and legislative orders cannot be removed to and re-examined by circuit court on writ of certiorari (Code 1930, section 73).
2. CERTIORARI.
Writ of certiorari will not lie to circuit court from school board's order eliminating territory from school district; such order being legislative and judicial (Code 1930, section 73).
APPEAL from circuit court of Franklin county. HON. R.L. CORBAN, Judge.
C.F. Cowart, of Meadville, for appellant.
The court erred in dismissing the petition for the writ of certiorari.
Certiorari is the proper remedy in this case, section 73, Code of 1930. This action was for the purpose of having the order of the county school board reviewed.
The authority granted for releasing territory from a rural separate school district is found in section 6669 of the Code of 1930.
The county school board took the position that paragraph (e) section 6584 provides the method. Since section 6669, and section 6584 conflict the circuit judge dismissed the petition.
The court was in error in dismissing the petition because if 6669 does not control then the order of the board is null and void, because,
First, One of the requirements of paragraph (e) section 6584 is that the board must "adjudge that taking such territory from such existing school district will not seriously interfere with or impair the efficiency of such school district.
Second, The order is null and void because it failed to recite that the board verified the majority required under said paragraph (e) section 6584. Both of the above are statutory requirements and since the board is one of limited and special jurisdiction every statutory requirement must appear.
Wentworth v. Flowers, 139 So. 624.
V.H. Torrey, of Meadville, for appellee.
A writ of certiorari was not the proper remedy, but an appeal should have been taken.
The county school board is not a court of record and is only required in its order to state facts and its action thereon reciting that "after due consideration of the petition" the prayer of the same was granted or rejected as the case may be.
An order of the appellee eliminating the territory from a rural separate school district was brought to the court below by a writ of certiorari; and the appeal is from a judgment of that court dismissing the writ.
Administrative and legislative orders of inferior tribunals cannot be removed to, and re-examined by, a circuit court on the writ of certiorari authorized by section 73, Code 1930. Board of Supervisors v. Melton, 123 Miss. 615, 86 So. 369. The order of the school board here in question is similar to, and of the same nature as, orders made by such a board in establishing and defining the boundaries of school district, which, in Amite County v. Reese, 143 Miss. 880, 108 So. 439, were said to be legislative and judicial; consequently a writ of certiorari will not lie therefrom. This court so held in Board of Supervisors v. Stephenson, 130 So. 684, in an opinion that was afterwards withdrawn, 160 Miss. 372, 134 So. 142, but not for the reason that its holding was erroneous, but for the reason that the case could and should be decided on another ground with reference thereto.
Affirmed.