Opinion
No. 40064.
January 16, 1956.
1. Schools and school districts — quo warranto — to oust school trustee — statutes — time polls to remain open.
In quo warranto proceeding to oust respondent as trustee of a consolidated school district on ground her election was illegal for reason that polls closed at 3:30 p.m., whereas Sec. 9, Chap. 12, Laws 1953, Ex. Sess., required polls to remain open from 2 to 4 in afternoon, wherein respondent contended that cited statute was not applicable to her since controlling statute was sub-sec. (b), Sec. 6422, Code 1942, which section contained no requirement as to the time the polls shall remain open, Supreme Court held that statute governing such election at time of enactment of statutes abolishing all existing school districts but providing that such districts should continue to exist with all existing powers, rights and privileges until prescribed reorganization and consolidation of school districts could be effected controlled the election, in absence of any attempt to abolish, consolidate or reorganize such district. Chap. 12, Laws 1953 (Ex. Sess.); Sec. 6422 (b), Code 1942.
Headnote as approved by Roberds, P.J.
APPEAL from the Circuit Court of Yazoo County; M.M. McGOWAN, Judge.
Henry Barbour, Yazoo City, for appellant.
I. The Trial Court erred in concluding that substantial compliance with the statute prescribing the mode and method of holding the trustee's election was sufficient and in denying the District Attorney his relief of having the office declared vacated and the appellee debarred from exercising the powers of such office.
II. The election was not held in accordance with the applicable statute. Appellant contends that the applicable statute governing the election in question was Section 9, Chapter 12, Laws of 1953, Extraordinary Session. The appellee asserts that the applicable statute is Section 6422, Mississippi Code of 1942.
III. The appellee's position is based squarely upon this Court's opinion in the recent case of Grenada County School Board v. Provine, 224 Miss. 574, 80 So.2d 98, 81 So.2d 694. We concede that, if the 1953 law did not have the effect of repealing the prior laws insofar as the governing of this election is concerned, the applicable law would be Section 6422 of the Mississippi Code of 1942.
IV. The Lower Court properly overruled the appellee's plea to the jurisdiction. State ex rel. Funches v. Keys, 215 Miss. 562, 61 So.2d 339.
Creekmore Beacham, Jackson, for appellee.
I. The election was held strictly in accordance with the applicable statutes. Grenada County School Board v. Provine, 224 Miss. 574, 80 So.2d 798, 81 So.2d 694; Sec. 6422 (b), Code 1942; Chap. 12 Sec. 9, Laws 1953 (Ex. Sess.).
II. Appellee's plea to the jurisdiction should have been sustained. State ex rel. Livingston v. Bounds, 212 Miss. 184, 52 So.2d 660; Warren v. State ex rel. Barnes, 163 Miss. 817, 141 So. 901; Chap. 12 Sec. 9, Laws 1953 (Ex. Sess.).
III. The Trial Court correctly held that appellee was the lawfully elected trustee. Gregory v. Sanders, 195 Miss. 508, 15 So.2d 432; Hunt v. Mann, 136 Miss. 590, 101 So. 369; Traham v. Simmons, 191 Miss. 353, 2 So.2d 575; Walker v. Smith, 213 Miss. 255, 56 So.2d 84; Simmons v. Crisler, 197 Miss. 547, 20 So.2d 85.
This is a quo warranto proceeding, instituted in the name of the District Attorney, to oust Mrs. H.G. Hutto as trustee of Eden Consolidated School District, located in Yazoo County, Mississippi. The petition avers that her election was illegal because the polls closed at three-thirty o'clock, p.m., whereas the applicable statute required the polls to remain open from two to four o'clock in the afternoon. Section 9, Chapter 12, Laws of Miss. 1953, Extraordinary Session.
Mrs. Hutto, in her answer, among other contentions, says that the cited statute was not applicable to her election. She contends that the controlling statute was subsection (b) of Section 6422, Miss. Code 1942, which section contains no requirement as to the time the polls shall remain open.
(Hn 1) In this contention we think she is correct. Said subsection (b) of Section 6422 is the applicable statute unless it was repealed by said Chapter 12. In Grenada County School Board et al. v. Provine et al. 224 Miss. 574, 80 So.2d 798, this Court said:
"Thus the Legislature, in its enactments at the extraordinary session of 1953, wrought a great change in the public school system of the State. It determined that reorganizations and consolidations should be effected as soon as practicable, but at all events by July 1, 1957. In order to carry out the program, it therefore abolished all school districts in existence in the State. But then, in the next breath, in order to prevent chaos in the educational life of the State, it breathed new life into the districts and provided that they should `continue to exist with all the powers, rights, privileges, and prerogatives thereof as now provided by law until such school district shall be reconstituted or the territory thereof consolidated with other territory as is hereinafter prescribed.' Laws 1953 Ex. Sess. c. 12, Sec. 1. All boards of trustees were likewise continued in office until the reorganizations and consolidations were effected, `with all of the existing powers, duties, authority, rights, and privileges thereof * * *.' Laws 1953 Ex. Sess. c. 12, Sec. 7 (a).
"The obvious purpose of the acts was to keep the existing schools in operation, just as they were at the time of the passage of these legislative acts, until the mandatory reorganizations and consolidations have been effectuated. For the intervening time, between the approval of the acts and the consummation of the reorganizations and consolidations, it was the evident purpose of the Legislature to preserve all rights under existing laws. Sections 6333, 6336 and 6352, supra, although expressly repealed, as above mentioned, are therefore in fact preserved in full force and effect during this intervening period, and were available to the appellees in the assertion of their rights and in obtaining the relief which they sought."
It is not contended in the case at bar that any attempt had been made to abolish, consolidate or reorganize Eden Consolidated School District. That being true, subsection (b) of Section 6422 controlled the election at which Mrs. Hutto was elected.
Affirmed.
Lee, Arrington, Ethridge, and Gillespie, JJ., concur.