Opinion
No. 38897.
May 18, 1953.
1. Schools and school districts — annexation to another district — conditional petitions.
The code section which authorizes the annexation of described territory to a consolidated school district on the petitions therein mentioned does not contemplate annexation upon a conditional petition. Sec. 6274(d), Code 1942.
2. Consolidated school districts — annexation to another district — uncertain description.
Under the cited code section a petition for annexation which contains the provision that "We agree for any territory to be released from this petition by persons wishing to be annexed to another school," thereby making it indefinite and uncertain as to the territory to be finally annexed, is insufficient to form the basis of any affirmative action thereon. Sec. 6274(d), Code 1942.
3. Statutes — validating act — consolidated school districts.
The cited validating act applied only to districts created and functioning as one entity brought about by the action validated prior to January 1, 1952, and has no application to two districts when it was undisputed that each of them was acting separately and independently of the other on and prior to that date. Chap. 277, Laws 1952.
4. Statutes — validating act — exception as to pending litigation.
Where a school district validating statute contained the provision that it shall have no application "where litigation is now pending as to the validity of any such district," and a petition was filed with the board of supervisors by certain patrons and electors of one of the school districts above mentioned alleging that for stated good reasons the attempted annexation was void and requesting the board to permit or authorize a suit to test the legality of such action, which petition was pending on the effective date of the validating act, the said petition would be construed as constituting a litigation pending inasmuch as it was necessary that this preliminary step be taken as a prerequisite to the right of the petitioners to file a suit in court. Secs. 2955, 2956, Code 1942; Chap. 277, Laws 1952.
Headnotes as approved by Roberds, P.J.
APPEAL from the chancery court of Simpson County; NEVILLE PATTERSON, Chancellor.
Barnett, Jones Montgomery, for appellants.
I. The order of Sept. 3, 1951, was a legal and valid exercise of the power of the county school board of supervisors of Simpson County and, by it, the Shivers Consolidated School District was lawfully consolidated with and added to the Pinola Consolidated School District.
(A) Legality of organization of Shivers and Pinola, as consolidated school districts admitted. Griffith's Miss. Chancery Practice, 2nd Ed., Sec. 566, p. 588.
(B) Admission that both Shivers and Pinola were lawfully organized and created is admission that the order of creation in each district complied with statutory requirement that the order determine and describe the boundaries thereof and name the sections or parts of sections composing such districts. Secs. 6274(b), 6295(b), Code 1942; Renfro, et al. v. Givens, et al., 207 Miss. 531, 42 So.2d 734; Leech, et al. v. Wileman, et al., 179 Miss. 836, 177 So. 12.
II. The order consolidating the Shivers and Pinola Districts was a valid order entered pursuant to statutory authority and the Shivers Consolidated School District is now consolidated with and is a lawful part of the Pinola Consolidated School District. Sec. 6274(d), Code 1942.
(A) The petitions sufficiently described both the territory to be added and the lands embraced in the Pinola District after the Shivers District had been added to it. Boutwell v. Board of Supervisors of Jasper County, 128 Miss. 337, 91 So. 12.
(B) The Pinola and Shivers petitions were signed by the requisite number of qualified electors residing in each district.
(C) It is undisputed that the Shivers petition and the Pinola petition were both filed with the president of the county school board.
(D) The county school board was under a statutory duty to add the Shivers to the Pinola District and its order was a lawful exercise of its statutory power.
III. If there was any invalidity in the order of Sept. 3, 1951, rendered by the County School Board of Simpson County, that defect was cured and said order was validated by H.B. 705, Laws 1952, approved April 9, 1952.
(A) The Legislature had the power to cure by retroactive statute any defect in following the statute in the consolidation of Shivers with Pinola that it could have dispensed with in advance. Griffith v. City of Vicksburg, 102 Miss. 1, 58 So. 781; Tonsmeire v. Harrison County, 1 So.2d 511; Grant v. Montgomery, 5 So.2d 491; Board of Supervisors of Calhoun County v. State, 40 So.2d 273.
(B) The Legislature had the power to originally authorize county school boards to consolidate existing districts without any petitions whatever. Sec. 4512, Code 1906; Keeton v. Board of Supervisors of Clarke County, 117 Miss. 72, 77 So. 906; Barrett v. Cedar Hill Consolidated School District, 123 Miss. 370, 85 So. 125; Bullock, et al. v. Sanford Consolidated School District, 153 Miss. 476, 121 So. 267; Trustees of Walton School v. Board of Supervisors of Covington County, 115 Miss. 117, 75 So. 833.
(C) The Legislature having had the power to authorize the County School Board of Simpson County to add Shivers to Pinola without petitioner or other statutory restrictions, it had the power to validate the action of said board in so consolidating said districts, even if the board failed to follow the statutory procedure for so consolidating and the order of said board so consolidating said districts became and was made valid by H.B. 705, Laws 1952.
(D) There was no litigation pending at the time of the approval by the Governor of H.B. 705, Laws 1952. In re Londenslager's Estate, Prerog., 113 N.J. Eq. 418, 167 A. 194-5; Summerour v. Fortson, 174 Ga. 862, 164 S.E. 809.
A.K. Edwards, for appellees.
I. Order of school board is void. Tishomingo County School Board v. Crabb, 170 Miss. 146, 154 So. 345; Renfro, et al. v. Givens, 42 So.2d 734; Yeager v. Meritt, 153 Miss. 64; Blue, et al. v. Board of Supervisors of Calhoun County, 111 So. 737; Lamb, County Superintendent of Education v. Morgan, et al., 120 So. 745.
House Bill 705, Laws 1952, has no application to the case at bar.
II. Pending litigation. Storey v. Rhodes, et al., 178 Miss. 776; Tucker v. Daniels, 50 So.2d 896; 11 Am. Jur. 916, Sec. 211.
Appellants in reply:
I. Answer to appellees' point that it was necessary under the statute to first abolish the Shivers District before the territory embraced in the Shivers District could be lawfully added to the Pinola District.
(A) There is no proof in the record that the school board did not abolish the Shivers District before adding its territory to the Pinola District. Sec. 6274(d), Code 1942; Secs. 100, 110, 113, Chap. 283, Laws 1924; Sec. 15, Act of Adoption of Code of 1930; American Oil Co., et al. v. Interstate Wholesale Grocers, Inc., 138 Miss. 801, 104 So. 70; Tepper Brothers v. Buttross, 178 Miss. 659, 174 So. 556; State v. Saenger Theatre Corp., 190 Miss. 391, 200 So. 442.
II. Answer to appellees' argument that petitions to add Shivers to Pinola were not sufficient because the petitions were conditions upon Shivers failing "to function as a school in 1951-52." 47 Am. Jur. 297, Sec. 2.
III. Answer to appellees' argument that H.B. 705, Laws 1952 (Ch. 277, Laws 1952), did not validate the addition of Shivers to Pinola.
(A) H.B. 705, Laws 1952 (Ch. 277, Laws 1952), applies to the addition of Shivers Consolidated School District to the Pinola Consolidated School District and cures all defects, if any there be, in the addition of Shivers to Pinola. Cahoon v. Scarborough, 159 Miss. 5, 131 So. 431; Yow v. Tishomingo County School Board, 177 Miss. 821, 172 So. 303.
IV. Answer to appellees' argument that action was pending when Chap. 277, Laws 1952, was approved on April 9, 1952. Sec. 2932, Code 1942; Miss. Road Supply Co. v. Hester, 185 Miss. 839, 188 So. 281, 124 A.L.R. 574; McLean v. Love, 172 Miss. 168, 157 So. 361.
V. Answer to appellees' argument that to hold that Chap. 277, Laws 1952, validated the order of September 3, 1951, would deprive appellees of their property without due process of law.
The question for decision herein is the legality of the merger into Pinola Consolidated School District of the territory embraced within the Shivers Consolidated School District, both districts being located in Simpson County, Mississippi. The chancellor held there was not a legal merger, or annexation, from which decree the members of the County School Board of said County appeal.
The problems involved will be revealed by a recital of the proceedings and essential facts.
Both districts had been created and in existence and operation for many years before this contest arose.
On August 19, 1951, the Trustees of the Shivers District entered into a written agreement with the Trustees of Newhebron Consolidated Line School District, located in Lawrence County, under which the school children in the Shivers District had the privilege of attending the Newhebron School for the school year 1951-52. This agreement was also approved and signed by the superintendents of education of said counties. The agreement obligated the Shivers District to pay the Newhebron tuition for the foregoing privilege to be raised by ad valorem tax to be levied upon the land in the Shivers District, and also a percentage of rentals and bonuses to be realized under oil and gas leases on 16th section school lands located in the Shivers District. The contract also provided that any of the Shivers children who desired to do so might go to Pinola, their tuition to be paid in the same manner, although the agreement was not signed by the Trustees of the Pinola District.
Shortly before September 3, 1951, (the exact date not being shown), sixty-one percent of the qualified electors of the Shivers District filed with the County Board of Education of Simpson County a petition asking the Board "* * * to annex said District to Pinola Consolidated School District, should Shivers School fail to function as a school in 1951-52. We agree for any territory to be released from this petition by persons wishing to be annexed to another school."
The Board considered that petition at its September 3, 1951, meeting. Its order of that date refers to the petition as one "* * * to consolidate said District with Pinola Consolidated School District," and then continues further consideration of the petition "* * * in order to allow time for a petition of acceptance to be filed by the qualified electors of the Pinola Consolidated School District." At a recessed meeting, held September 5, 1951, the order recites that there came on for hearing by the Board a petition of "a majority of the qualified electors of the Pinola Consolidated School District asking that the territory embraced within the Shivers District * * *" be consolidated with the Pinola District, and also came on for consideration a petition of sixty-one percent of the qualified electors of the Shivers District asking that the territory of that District "be added to" the Pinola District. The order then finds "* * * that the best interest of the children will be served by the consolidation and that said consolidation will not inconvenience any." It then orders "* * * that the land comprising the Shivers Consolidated School District be, and the same is hereby annexed to the Pinola Consolidated School District but that this order shall in nowise interfere with the provisions for the 1951-52 session made by the trustees of the Shivers School."
On February 1, 1952, certain school patrons and electors of the Shivers District, for themselves and such others as desired to join with them, filed a petition with the Board of Supervisors of Simpson County, alleging that, for stated reasons, the action of the Board of Education of Simpson County in attempting to annex to Pinola the Shivers territory was void, and asking the Supervisors to permit and authorize proper suit to test the legality of such action. The supervisors declined to act upon that petition until July 7, 1952, when it refused to institute such action or give its consent for that to be done; whereupon, on the same day, petitioners filed the bill herein. A total of one hundred and nine persons finally joined therein.
The bill alleged that the action of the Board of Education was illegal and void for these reasons. First, because the Shivers petition was conditional in that it prayed the Board to annex the Shivers territory to Pinola "should Shivers School fail to function as a school in 1951-1952," and it is alleged that Shivers did function as a school during that time; second, because the Shivers petition was uncertain, vague and indefinite in that it contained this statement: "We agree for any territory to be released from this petition by persons wishing to be annexed to another school"; third, that the order of the Board was not responsive to the Pinola or the Shivers petitions; fourth, that neither petition described the territory ordered to be annexed to Pinola, nor did the order of the Board describe the total area after such attempted annexation.
The answer took issue with these legal conclusions, and further asserted that if any or all of them are well taken they are cured by Chapter 278, Miss. Laws 1952, which purports to validate school districts created prior to January 1, 1952.
We think the first two contentions are well taken and, therefore, do not pass upon the other two invoked by complainants.
And as to the Shivers petition being conditional: It asked that Shivers territory be annexed to Pinola if the Shivers school failed to function in 1951-52. Under this record Shivers did function as a legal entity during that time. It had sixty children who attended school. Some fifty-seven of these went to Newhebron; two or three went to Pinola. The trustees of Shivers signed the Newhebron contract in their official capacity. It was approved by the county superintendents of education. The trustees paid Newhebron and also Pinola tuition for the respective number of children who went to each of those schools. That was paid out of funds belonging to Shivers school. The trustees of Shivers transported the children to Newhebron by busses belonging to the Shivers district.
But, aside from the testimony, the question is foreclosed by the pleadings and agreement of counsel. The bill was filed July 7, 1952. That was after the 1951-1952 school session. It alleges that the Shivers District was created August 7, 1925, "and is now a legally created school district of said county and has been since its creation; that it has been legally functioning as a consolidated school district since its creation, carrying on all the functions of a school," detailing them, and has enjoyed the rights and benefits of a legally constituted and functioning school district. Again, that said school is "still a legally existing and functioning school district with all the rights, powers and privileges of a school district and is still a legal entity under the laws of the State of Mississippi." The answer says "Defendants admit that said Shivers Consolidated School District did function from the time of its organization by the County School Board until the close of 1951-52 session thereof as a legally existing consolidated school district entitled to perform all of the functions of a consolidated school district under the laws of the State of Mississippi, and that it did so." This agreement of counsel, dictated by counsel for appellants, appears in the record: "It is agreed by and between counsel for the complainants and for the defendants that the defendant's answer is effective to operate as an admission of all the allegations of the material fact contained in the original bill of complaint and that no proof of any of such facts be required on the trial of this case." All parties assume that the action and proceedings taken by the Board of Education were under Section 6274 (d), Miss. Code 1942. That section provides:
"Whenever a petition signed by a majority of the qualified electors of an existing consolidated school district * * * shall be filed with the president of the county board, requesting that certain territory, fully described therein, be added to such district, and a petition signed by a majority of the qualified electors residing in the territory to be added to such district is filed with the president of the school board, then the school board shall add such territory to such school district." (Hn 1) This section does not contemplate action upon a conditional petition such as we have in this case. The annexation of the Shivers territory to Pinola being conditional upon the non-functioning of Shivers for 1951-52 school year, and the undisputed and admitted fact being that Shivers did function during that period, the petition constituted no legal foundation for the Board to annex the Shivers territory to Pinola.
(Hn 2) The Shivers petition is qualified and rendered uncertain by this provision: "We agree for any territory to be released from this petition by persons wishing to be annexed to another school." Obviously that leaves indefinite and uncertain the territory to be finally annexed to Pinola. Any portion, or even all, of such territory might be withdrawn from the petition. The statute required a description of the land to be annexed. Here any landowner could withdraw his land. That leaves both the land and the number of signers indefinite.
In determining the evil effect of such a provision, it is clear in reason that this provision would, and, no doubt did, induce persons to sign the petition who otherwise would not have done so. The defect has special weight here because Pinola's petition did not propose in affrmative terms, to take the Shivers territory. It was in the form of an acceptance of a proposal by Shivers. The Pinola petition said the signers thereof "do hereby agree to accept the Shivers Consolidated School District into our District." They were accepting all of the territory — not a part of it if some owner or owners cared to withdraw land therefrom. But the acceptance was necessarily according to the terms of the Shivers proposal and that proposal was that any owners could withdraw, which left the amount of territory and the numbers of signers uncertain and indefinite.
But it is urged by appellants that Chapter 277, Laws of 1952, validated this illegal proceeding. We do not think that statute applicable to this proceeding for two reasons:
(Hn 3) First, that statute applies to districts created and functioning as one entity, brought about by the action validated, prior to January 1, 1952. The purpose of the action here was to combine Shivers and Pinola into one legal entity. But it is undisputed, as shown above, that each district was acting separately and independently from the other on and prior to January 1, 1952. No one claims that on or prior to January 1, 1952, the two districts were performing as one district — as a unit. Pinola's trustees were operating the Pinola School and the Shivers' trustees were operating the Shivers School.
(Hn 4) And, secondly, we think the validating act was not applicable here because, in our opinion, there was a contest pending, within the meaning of the Act, when it became effective April 9, 1952. By its terms it has no application "where litigation is now pending as to the validity of any such district." As heretofore stated, certain electors, on February 1, 1952, filed with the supervisors a petition, asking it to institute this action or permit petitioners to do so. The Board did not act upon this petition until July 7, 1952; therefore, the petition was pending April 9, 1952. The preliminary petition was a prerequisite to the right of the petitioners to file this suit. Sections 2955 and 2956, Miss. Code 1942; Storey v. Rhodes, 178 Miss. 776, 174 So. 560. We realize, as urged by able counsel for appellants, that an acceptable definition of litigation, could be "* * * a contest in a court of justice, for the purpose of enforcing a right, a judicial contest, a judicial controversy, a suit at law." In re: Londenslager's Estate, 113 N.J. Eq. 418. However, we do not think the word litigation, as used in the validating Act, should be given a strict definition, or even the usual definition. It should be given a liberal interpretation to effectuate the purpose of the Legislature. That purpose was to preserve to parties the right to have tested in the courts the validity of actions then being legally contested, in good faith, in the manner and in the tribunal provided by law. Here the law required that this preliminary step be taken by appellees before the tribunal whose action they sought to invoke. It was not the purpose of the Legislature to arbitrarily cut off and deny its electors the opportunity, under the foregoing circumstances, to assert their rights in the courts of the land.
Affirmed.
Lee, Kyle, Ethridge and Lotterhos, JJ., concur.
ON MOTION OF APPELLEES TO DISMISS SUGGESTION OF ERROR
July 3, 1953 35 Adv. S. 4 65 So.2d 838
An opinion was rendered by us in this cause on May 18, 1953, affirming the decree of the lower court. The appellants thereafter filed a suggestion of error. Before the suggestion of error had been acted upon by the Court, appellees' attorney filed a motion to dismiss the suggestion of error on the ground that after the rendition of the judgment of this Court on May 18, 1953, the County School Board of Simpson County had taken other action with reference to the territory embraced and included in the Shivers Consolidated School District, which made it unnecessary for this Court to consider the suggestion of error. A certified copy of the orders of the County School Board adopted on June 8, 1953, was attached to the motion to dismiss the suggestion of error.
This Court cannot entertain the motion to dismiss the suggestion of error on the ground alleged in the motion; neither can this Court consider on this appeal any of the exhibits attached to the motion. The motion is therefore denied.
The suggestion of error has been carefully considered by the Court on its merits, and in our opinion, the same should be overruled.
Motion to dismiss suggestion of error denied, and suggestion of error overruled.
Roberds, P.J., and Lee, Ethridge, and Lotterhos, JJ., concur.