Summary
In Board of Supervisors of Marshall County v. Stephenson, 160 Miss. 372, 134 So. 142 (1930), the Court held that the aggrieved party perfected an appeal from a decision of the board of supervisors on the day the bill of exceptions was filed with the clerk of the board of supervisors.
Summary of this case from City of Jackson v. AllenOpinion
No. 28886.
Suggestion of Error Sustained May 4, 1931. ON SUGGESTION OF ERROR.
(Original opinion appearing in 130 So. 684 is withdrawn.)
1. COUNTIES.
"Next term" of circuit court, to which appeal from decision of board of supervisors must go, is term next after appeal has been perfected (Code 1930, section 61).
2. COUNTIES. Bill of exceptions on appeal to circuit court from decision of board of supervisors should generally be signed during term in which decision was rendered ( Code 1930, section 61).
Such bill of exceptions, however, may be signed after adjournment of term of board of supervisors in which decision was rendered, pursuant to agreement of parties to controversy.
3. COUNTIES. Thirty days within which to procure signing of bill of exceptions after adjournment of term of board of supervisors held not unreasonable time ( Code 1930, section 61).
Agreement was entered into in proceedings before board of supervisors of county that losing party should have thirty days from the final decision of the board in which to prepare and file and have signed by the president thereof a bill of exceptions to cover points raised before the board up to and including the final decision.
4. SCHOOLS and SCHOOL DISTRICTS.
Order of county school board creating consolidated school district must designate location of schoolhouse (Laws 1924, ch. 283, section 100).
5. SCHOOLS and SCHOOL DISTRICTS.
Where order creating consolidated school district does not designate location of schoolhouse, board of supervisors is without power to issue bonds or hold election therefor (Laws 1924, ch. 283, section 100).
6. SCHOOLS AND SCHOOL DISTRICTS.
Term "locate," within statute requiring county school board creating consolidated school district, to designate location of schoolhouse, means to designate site or place, and term "location" is equivalent to site or place (Laws 1924, ch. 283, section 100).
7. SCHOOLS and SCHOOL DISTRICTS. Order creating consolidated school district held not to sufficiently designate location of schoolhouse, and therefore void ( Laws 1924, ch. 283, section 100).
Order of county school board creating consolidated school district located the school house "at the village of Laws Hill on section 12, township 6, range 4 W." Village of Laws Hill is an unincorporated village or neighborhood, boundaries of which were not shown.
8. SCHOOLS and SCHOOL DISTRICTS.
Decision of board of supervisors to issue school bonds could not validate order of school board creating consolidated school district.
APPEAL from circuit court of Marshall county; HON. T.E. PEGRAM, Judge.
E.C. Wright and Lester G. Fant, both of Holly Springs, for appellants.
Mere administrative orders of an inferior tribunal cannot be removed to and be examined by a circuit court on certiorari; but only such as are of a judicial nature.
Forrest Co. v. Melton, 123 Miss. 615.
County school board is not a judicial tribunal. The creation of a school district is a legislative act and not judicial.
School Board v. Reese, 143 Miss. 880.
Contests of election are not by appeal nor certiorari and are governed by statutory procedure. No appeal is provided from election commissioners action.
Hemingway 1927 Code, sections 8027-8077-8078.
Quo warranto proceeding is another remedy.
Section 3237, Hemingway's Code 1927.
Election board is not a judicial tribunal and acts are administrative and not subject to review by certiorari.
Forrest Co. v. Melton, 123 Miss. 615.
The county school board is sole authority empowered to create school districts.
Board v. Reese, 143 Miss. 880, section 38, chap. 283, Laws 1924.
The powers of the board of supervisors are conferred by express legislative enactment and its jurisdictional powers are prescribed and in none of them that we have been able to find is there power to hear appeals from other boards created by the same authority nor to sit in review of their actions.
Lester G. Fant, of Holly Springs, for appellant.
In the state of Mississippi the creation of school districts is left exclusively in the hands of the board of education.
Trustees of Walton School et al. v. Board of Supervisors of Covington County, 115 Miss. 117.
The powers conferred by said statute upon the county boards of education to organize consolidated school districts are not judicial powers in the sense that due process is required for those thereby affected. Such proceedings are administrative in character.
King et al. v. Board of Supervisors, 97 So. 811.
The order of the county school board stated the jurisdictional facts, and under statutory schemes creating such districts as the one here involved the court is only concerned with the question as to whether the board had proper jurisdiction of the matter before it. The power partakes of the legislative character to be exercised by the board upon the existence of certain conditions prescribed by law; and, where the jurisdictional facts are shown to exist, the board's finding is conclusive, unless the court has been specifically given power to review such question.
Liddell v. Noxapater, 129 Miss. 513.
The order of the board of education is found in the minutes of the board, and the minutes of the board show that a majority of the patrons of the school signed the petition, and there being no attempt to show fraud, there being no proceedings in a chancery court, the only court that would have jurisdiction over setting aside fraudulent actions of the board. The only appeal then is by writ of certiorari, and the certiorari only looks for defects that the record of the board of education would show. This record could not show any defects that the record of the board of education would show. This record could not show any defects except those that would be patent on the face of the record.
School Board v. Reese, 143 Miss. 880.
Smith Smith, of Holly Springs, for appellees.
The county board of education is an inferior tribunal having judicial or at least quasi judicial powers, and from their judgment an appeal to the circuit court by certiorari proceedings is authorized.
Lidell v. Noxapater, 92 So. 631, 129 Miss. 513; Alexander v. State, 127 So. 696; Lee v. Bassett, 121 So. 842, 153 Miss. 854; Power v. Robertson, 130 Miss. 188, 93 So. 769; Ferguson v. Monroe County, 71 Miss. 424, 14 So. 81; Board of Supervisors of Forrest County v. Milton, 86 So. 369, 123 Miss. 615; Gilbert v. Scarbrough, 131 So. 876.
Mere irregularities in proceedings establishing consolidated school districts cannot be inquired into, in absence of appeal to the board of supervisors.
Board of Supervisors of Marshall County v. Brown et al., 111 So. 831, 146 Miss. 56.
A protest was filed originally and independently before the county board of supervisors protesting against the board of supervisors granting the petition to call an election in the school district for the purpose of determining whether or not to issue bonds.
The appellees also appealed from the county board of education. Upon the overruling of the protest and appeal, an appeal to the circuit court was proper.
Board of Supervisors of Marshall County v. Brown, 111 So. 831, 146 Miss. 56.
The county board of education may administer schools and consolidate them and such act is administrative. But when such consolidation is brought about by a petition of the school patrons for the purpose not only of forming a consolidated school district but also a taxing district, whereby tax payer's property is taken, the jurisdictional fact of legal signatures of a majority of the patrons must be determined, not as a mere administrative act, but as a judicial act.
Alexander v. State, 127 So. 696; Power v. Robertson, 130 Miss. 188, 93 So. 769; Ferguson v. Monroe County, 71 Miss. 424, 14 So. 81.
Judicial powers of an inferior board can be separated from administrative power and orders and the writ of certiorari had as to such as are of a judicial, or quasi judicial nature.
Forrest County v. Milton, 86 So. 369.
The distinction between ministerial and judicial, and other official acts seems to be that where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial; but where the act to be done involves the exercise of discretion or judgment in determining whether the duty exists, it is not to be termed merely ministerial. When considering whether a particular act of a court, or an officer charged with judicial or quasi judicial functions, is judicial or ministerial the exercise of judgment and discretion is determined as the distinguishing test.
34 Corpus Juris, 1179.
Certiorari is a proper remedy from the circuit court to the county board of education, whereby may be brought up for review by the circuit court the action of the county board of education.
Liddell v. Noxapater, 92 So. 631, 129 Miss. 513; Board of Supervisors of Calhoun County v. Young, 126 So. 469; Crownen, County Supt., v. Young, 126 So. 470.
These contestants had a right to take a direct appeal from the decision of the board of supervisors to the circuit court, and the jurisdiction of the board of education could be brought into question before the board of supervisors, and the order of the board of education being void for lack of jurisdiction, the order of the board of supervisors predicated on a void act of the board of education was void, and both subject either to direct or collateral attack.
Williams v. Lee, 132 Miss. 499, 97 So. 14, 96 So. 401, 132 Miss. 739.
Section 60, Hemingway's Code 1927, provides for the appeal from the board of supervisors to the circuit court, and provides further that if the court reverses the judgment of the board court shall render such judgment as the board ought to have rendered, and certify the same to the board of supervisors, and a bill of exceptions may be signed in vacation by agreement.
McGee v. Jones, 63 Miss. 453.
ON SUGGESTION OF ERROR.
The judgment of the court below herein was reversed on a former day, and it appears from a suggestion of error thereafter filed that we erred in so doing for a reason not discussed in the former opinion, 130 So. 684, and having no bearing on the question "there" to be discussed. The statement of the case will therefore be limited to facts bearing on that question, and the opinion hereinbefore rendered will be withdrawn.
On June 1, 1929, a petition was filed with the board of supervisors of Marshall county for the issuance of bonds of the "Laws Hill Consolidated School District;" and on the 3d day of June the county superintendent of education certified to the board of supervisors a copy of the order of the county school board creating the school district. Several written protests against the issuance of these bonds were filed by interested parties, which protests were overruled at the July meeting of the board of supervisors, and an election for the issuance of the bonds was ordered.
This election resulted in favor of the issuance of the bonds, and on the 9th day of August thereafter the board of supervisors, over the protest of interested parties, including the appellees, ordered the bonds to be issued, setting forth in its order that the "objectors and protestants . . . excepting in open court, prayed an appeal from the said order to the circuit court of Marshall county, Mississippi, which appeal was granted."
On September 3d the president of the board of supervisors signed a bill of exceptions setting forth the proceedings before the board of supervisors at its August meeting. This record was filed by the clerk of the board of supervisors with the clerk of the court below on the 10th day of February, 1930. When the cause came on for trial in the court below the appellants moved the court to dismiss the appeal, for the reason that it was not perfected within the time provided by law. This motion was overruled. The court then heard the case, and held that "the order of the board of supervisors . . . creating the Laws Hill Consolidated School District is void," and reversed the order of the board of supervisors, directing the issuance of the bonds.
One of the objections to the issuance of the bonds set forth by the protestants is that the order of the county school board creating the district did not "designate the location of the school house," as required by section 100, chapter 283, Laws of 1924.
The assignment of errors brings under review, among other rulings of the court below, first, the overruling of the motion to dismiss the appeal from the order of the board of supervisors directing the issuance of the bonds; and, second, the ruling that the order of the county school board creating the school district is void.
The statute governing appeals from boards of supervisors to the circuit court is that which now appears as section 61 of the Code of 1930, and provides that: "Any person aggrieved by a judgment or decision of the board of supervisors, or the municipal authorities of a city, town, or village, may appeal to the next term of the circuit court of the county, and may embody the facts and decisions in a bill of exceptions, which shall be signed by the person acting as president of the board or of the municipal authorities; and the clerk thereof shall transmit the bill of exceptions to the circuit court on or before the first day of the next succeeding term, or at once if the court be in session."
The term of the circuit court next after the term of the board of supervisors at which the final order directing the issuance of these bonds was entered was due, under the statute, to convene on the fourth Monday of August, 1929; and the appellant's contention on the motion to dismiss the appeal from the board of supervisors to the circuit court is that the appeal should have been to that term of the circuit court.
The bill of exceptions recites that: "The foregoing constituted the exceptions filed by the exceptors and protestants in the supervisors court, filed out of time by agreement, which agreement the clerk will here set out."
This agreement is: "That whichever side loses before the board of supervisors may have thirty days from the final decision of said board in which to prepare, file, and have signed by the president thereof a bill of exceptions, to cover points raised before said board on said matters, up to and including said final decision, and to file petition for appeal."
There is also indorsed on the bill of exceptions, immediately following the signature of the president of the board of supervisors, a stipulation by counsel representing the "proponents of the district and the bond issue," and "the objectors and exceptors," that "it is agreed that the above may be signed by W.H. French, President of the Board of Supervisors, for the reasons and purposes therein set out. This the 3rd day of September, 1929."
This bill of exceptions was filed with the clerk of the board of supervisors on September 4, 1929. It does not appear from the record that the August, 1929, term of the circuit court, was held, and, if held, whether it was then in session on the 4th day of September. If it was then in session, the appeal was perfected, as will hereinafter appear, in time for that term of the court, and should have been filed at once therein by the clerk of the board of supervisors. We will assume, for the purpose of the argument, however, that the circuit court was not in session when the bill of exceptions was filed with the clerk of the board of supervisors.
While the question is not without difficulty, it seems reasonably clear, when the statute is construed as a whole, that the next term of the circuit court to which an appeal from a decision of the board of supervisors must go is the term thereof next after the appeal has been perfected by the signing of the bill of exceptions by the president of the board of supervisors. This bill of exceptions should ordinarily be signed during the term of the board of supervisors at which the decision complained of was rendered, but may be signed after the adjournment of the board by agreement of the parties to the controversy in which the decision was rendered. McGee v. Jones, 63 Miss. 453.
It may be that the time within which the bill of exceptions may be signed by agreement after the adjournment of the board must be reasonable; but if so, as to which we express no opinion, thirty days is not an unreasonable time for the perfecting and signing of such a bill of exceptions. The court below committed no error in overruling the motion to dismiss the appeal from the board of supervisors.
Section 100, chapter 283, Laws of 1924, requires the county school board, in creating a consolidated school district, to designate the location of the schoolhouse. This requirement of the statute must be complied with before an election is held for the issuance of bonds of the school district; and, if it has not been complied with, the board of supervisors is without power to issue such bonds. Board of Supervisors v. Brown, 146 Miss. 56, 111 So. 831.
The order here made by the school board located the schoolhouse "at the village of Laws Hill on section 12, township 6, range 4 west." Laws Hill is an unincorporated village or neighborhood, the boundaries of which, if such there are, do not appear.
In Parnell v. Trustees of Orange Lake Consolidated School District, 157 Miss. 276, 127 So. 280, it was held that an order locating the schoolhouse "in the Southeast quarter of Southeast quarter of Section 14, Township 7, Range 5," "does not meet the requirement of the statute." The location of the schoolhouse here seems to be no more definite than was the location of the schoolhouse there. The word "locate" means "to designate the site or place of," Webster's New International Dictionary; 38 C.J. 131, and the word "location," as used in the statute, is equivalent to "site or place." This order of the school board would permit the schoolhouse to be erected anywhere within the village of Laws Hill, and therefore does not locate it with sufficient definiteness.
We do not mean to hold that the order of the school board should specifically describe the land to be covered by the schoolhouse, but it should describe the land intended to be occupied by the school, which may embrace, within limitations not necessary to be herein set forth, more land than necessary for the erection of a school building.
But it is said, in effect, by counsel for the appellant, that the appellees have lost the right to complain of the validity of the order of the school board, for the reason that that question was presented to, and decided by, the board of supervisors at its July meeting, from which no appeal was taken.
The decision of the board of supervisors to issue the bonds did not, and could not, validate the order of the school board, and it was the duty of the board, at its August meeting, to decline to issue the bonds, although authorized by the election held for that purpose.
The appeal in Board of Supervisors v. Brown, supra, was from the final order of the board of supervisors, made after the bonds of the school district had been authorized by an election held for that purpose, and, if authority is necessary therefor, governs here.
The judgment hereinbefore rendered will be set aside, and the judgment of the court below will be affirmed.