Opinion
No. 37474.
November 14, 1949. Suggestion of Error Overruled January 23, 1950.
1. Municipalities — donation of land owned by city.
Where the city owned a valuable lot purchased by it out of the funds of the municipal separate school district, the conveyance of the lot by the city to the county in consideration of one dollar and the further consideration that the county would erect, operate and maintain thereon a modern health clinic amounted to a donation and being without legislative authority was ineffective to convey title.
2. Appeal — advisory opinions not given.
When on a bill by the county to remove a cloud to its title to a lot purchased by the city out of the funds of its separate school district, and later donated to the county by the city without legislative authority, the Court, upon declaring the conveyance ineffective, would not render any opinion as to the rights of the trustees of the municipal separate school district, since this would be beyond the scope of the suit, and would be merely advisory.
Headnotes as approved by Alexander, J.
APPEAL from the chancery court of Harrison County; D.M. RUSSELL, Chancellor.
Thos. J. Wiltz, for appellants.
There was a failure of the trustees to join in the deed of conveyance, although they gave their assent to such conveyance by resolution, duly adopted in connection therewith. However, in connection with the sale of the property there was no compliance by the trustees of the Biloxi Municipal Separate School District with Chapter 404 of the Laws of 1946, and that this noncompliance would have the effect of invalidating the sale to Harrison County, Mississippi, and consequently the court erred in entering a decree confirming the title to the property involved in the suit in Harrison County, Mississippi.
Chapter 404 of the Laws of 1946 provides as follows, to-wit: That when trustees in a Municipal School District shall have title to school property which is no longer needed for school purposes, the said trustees by and with the consent and approval of the governing authorities of such municipality may sell and convey such property no longer needed for school purposes, the consideration therefor to be in cash and paid into the treasury of such municipality. In the event that the value of such property which is no longer needed for such purposes shall exceed the sum of five hundred dollars ($500.00), said property shall be sold only after legal advertisement of said sale of three weeks in a newspaper published in the county in which such property is located, and receipt of sealed competitive bids therefor; or such property may be sold at public outcry to the highest bidder, after due and legal advertisement published for three weeks in a newspaper published in the county.
The record in this cause affirmatively reflects that there was no compliance whatsoever with said statute in effecting the sale of the property to Harrison County, Mississippi, said property having been conveyed to Harrison County, Mississippi, by the City of Biloxi for a nominal consideration as will be reflected by the deed to Harrison County, Mississippi, attached as exhibit to the bill of complaint, and which deed has attached thereto the resolution of the City of Biloxi, and the Biloxi Municipal Separate School District, authorizing the conveyance. The deed is executed by the City of Biloxi only, by its Mayor and City Clerk with the seal of the city affixed. The value of said land is fixed by the Mayor and Board of Councilmen of the City of Biloxi at eighty-five hundred dollars ($8,500.00). It, therefore, appears that value of the property exceeding five hundred dollars ($500.00) in effecting the conveyance of said property, there should have been a compliance with said statute.
The appellee in this cause presumably will take the position as it did in the court below, that the statute is inapplicable inasmuch as the title to the property was not standing in the name of the Biloxi Municipal Separate School District, or rather the trustees thereof and, therefore, there was no necessity for a compliance with such statute. However, in this connection it is pointed out that said land was purchased by the City of Biloxi from funds which had been allocated to the Biloxi Municipal Separate School District. It, therefore, appears that the Biloxi Municipal Separate School District, or the trustees thereof, were in fact the beneficial owners of said land, and the land was either held in trust by the City of Biloxi for the trustees of the school district or the title to same should have been vested in the trustees in the first instance inasmuch as it is a well-established principle of equity that "equity regards substance rather than form" and "equity considers that done which should have been done" and it is, therefore, urged from the foregoing facts that there should have been a compliance with said statute.
Jo Drake Arrington, and Jacob D. Guice, for appellee.
(a). Chapter 404 of the Laws of 1946 of the State of Mississippi do not apply, unless the title to the land is in the trustees of the Separate School District. It is well settled in the jurisprudence of Mississippi that a municipal separate school district should not properly hold title to land used for school purposes. See Sheedy v. State, 152 Miss. 82, 118 So. 372.
Section 1 of Section 6434-01, of the Mississippi Code of 1942, being Section 1 of Chapter 404 of the Laws of Mississippi of 1946, provides as follows: "1. When trustees in a municipal school district shall have title to school property which is no longer needed for school purposes, the said trustees by and with the consent and approval of the governing authorities of such municipality, may sell and convey such property no longer needed for school purposes, the consideration therefor to be in cash and paid into the treasury of such municipality."
It is to be noted that this section is applicable only where title is in the trustees of a Municipal Separate School District. It is the contention of the appellee that this section is a remedial section, designed to cure an erroneous situation where the title has been conveyed to the trustees of a Municipal Separate School District. When the title is properly in the name of a city, such as is the present case, there arises no question as to how the property shall be conveyed, for the municipal authorities are given plenary powers in dealing with real estate.
It is further to be noted that the money derived from this sale is to be paid into the treasury of such municipality. The law doesn't say into the school fund of the municipality, or anything of that sort.
It is also true under the laws of Mississippi that the board of trustees of the school have nothing whatsoever to do with the raising of the funds which the board needs and uses, it being the duty in this case of the Mayor and Board of Councilmen to raise such funds as the board of trustees provides in its budget, insofar as it does not exceed any legal limits, or is not objected to by its citizens. Here again is an inference that this statute is purely a curative one to be used in a situation where the trustees have title.
Further, the statute clearly and expressly refers only to a situation where the title is in the trustees of a municipal school district. The Legislature could well have taken into consideration the law as handed down by the Supreme Court that the proper way to have title is in the municipality, and if it meant for this section to cover cases where title was in the municipality, it could have easily expressed it in plain and direct language, and the court, or others, trying to discern the meaning of this statute would not have had to rely on some of the laws of implied trust of lands, the title to which was in the municipality, and that the equitable interest was in the trustees of the Municipal Separate School District, which would require that the provisions as provided by this section apply in both cases.
No, the Legislature stated exactly what it meant. In the present case, there is no question but that the title is in the City of Biloxi. To say otherwise, would be judicial legislating, which is as a custom frowned upon and which is not necessary in the present case.
(b). The use of the land herein in question for a modern, up-to-date health clinic is a school purpose and such use satisfies and executes any implied trust in such land.
This Supreme Court has held, in the case of Hartman v. May, 168 Miss. 477, 151 So. 737, that municipalities and trustees of municipal separate school districts may require that students be vaccinated. This being the case, it is persuasive that the board of trustees of the municipal separate school district may require this provision by assisting in providing adequate and proper means by which these school children be vaccinated. The erection of this fine health center in our city affords the school board a means by which it can carry out this provision of vaccination. The existence of such a health clinic certainly helps control contagious diseases and affords the school children, of whom in Biloxi there are not few, who are unable to pay for their own medical services, a clean, proper and sanitary place to receive such medical services as the Harrison County Health Department may give them.
While it has not been settled in the jurisprudence of this state that the school board could erect a health center of its own, it has been decided in the State of Texas, in the case of Dallas v. Mosely, 286 S.W. 497, where the Texas court decided that without any statutory authority a school district could erect a health center. Certainly, if the school district could not erect such a health center on this land, it would be carrying out the purposes of any trust in the land by having some other body, with suitable funds, to erect the health center on its land and use the same for the same purposes for which it would necessarily use the land.
Further, this honorable body is but a reviewing board, and the trustees of the Biloxi Municipal Separate School District, in their resolution, provided that the use of the land for this purpose would be using it for a lawful school purpose, and in this conclusion, the chancellor of the chancery court of Harrison County, Mississippi, agreed, by having in its final decree in this cause the provision in finding "that the conveyance by the City of Biloxi, with the consent of the trustees of the Biloxi Municipal Separate School District, effectually accomplished any possible trust that would exist in the use of the above described property for school purposes".
In this cause there has been no evidence of a contrary nature, and under the usual rules of review, this court has no basis for dismissing such a finding. In fact, everything stated in this case persuades that this use of this land for a modern, up-to-date health clinic would effectually carry out any possible trust that could be implied by Chapter 404 of the Laws of 1946 of the State of Mississippi.
Appellants are the Trustees of the Biloxi Municipal Separate School District. Suit was filed by the County of Harrison to remove the claim of such trustees and of the City of Biloxi as clouds upon the title of complainant.
The relevant facts are as follows: the land in question is a vacant lot within the limits of the municipality of Biloxi. It was purchased by the city on March 29, 1940. Payment in the sum of $2,500 therefor was made "from funds which had been allocated to the Biloxi Municipal Separate School District", according to the original bill. It is further alleged that on May 5, 1948, the City of Biloxi executed a deed thereto to the county. The recited consideration was set out as "One Dollar ($1.00) cash in hand paid . . . and the agreement by Harrison County, Mississippi, to erect, operate, and maintain on the hereinafter described property a modern up-to-date health clinic, and other good and valuable considerations . . .". It is not shown that the "other considerations" went beyond a purpose to make available to the public by and with the anticipated assistance of the State and the United States, a public health clinic. It is alleged that the lot is separated by other property, from Howard No. 1 Primary School, and that it would be of benefit to the people of the city, including the school children. Further, it is asserted that the property is not now, and has never been used for school purposes.
[1] The transfer of this property by the city can not be viewed otherwise than a donation. Regardless of its evident altruistic purpose and commendable resourcefulness, the city was without power to make such donation. Trowbridge v. Schmidt, 82 Miss. 475, 34 So. 84; Marshall v. City of Meridian, 103 Miss. 206, 60 So. 135; McQuellen, Mun. Corp'ns, (Rev.), Sec. 380. Compare Adams v. Helms, 95 Miss. 211, 48 So. 290; Brister v. Leflore County, 156 Miss. 240, 125 So. 816; Adams v. Jackson Electric Ry., Light Power Co., 78 Miss. 887, 30 So. 858; Carothers v. Town of Booneville, 169 Miss. 511, 153 So. 670; First National Bank, etc. v. Walker County Board of Education, 243 Ala. 576, 11 So.2d 297; City of Little Rock v. Community Chest, etc., 204 Ark. 562, 163 S.W.2d 522, 142 A.L.R. 1072; Russell v. Tate, 52 Ark. 541, 13 S.W. 130, 7 L.R.A. 180, 20 Am. St. Rep. 193; Schneck v. City of Jeffersonville, 152 Ind. 204, 52 N.E. 212; 42 Am. Jur., Public Funds, Sec. 79; 47 id., Schools, Sec. 92. Rare exceptions do exist but special circumstances support them. Donations under legislative authority are beside the point. For example, Carothers v. Town of Booneville, supra; Albritton v. City of Winona, 181 Miss. 75, 198 So. 799, 115 A.L.R. 1436; Craig v. North Mississippi Community Hospital, Miss., 39 So.2d 523; American Oil Company v. Marion County, 187 Miss. 148, 192 So. 296.
[2] We have not overlooked the implication of a transfer of property purchased for school purposes and with school funds. To explore the probable consequences of a resulting trust in favor of the school trustees would involve an interpretation of the clause "from funds which had been allocated to the . . . School District." This could imply funds appropriated from the general fund or the avails of a school levy or bonds. To resolve this question may be incidentally helpful to the trustees in deciding they had such "title" to the property as required compliance with Chapter 404, Laws of 1946, Code Suppl., Sec. 6434-01, which prescribes the procedure for the sale of property no longer needed for school purposes. To do so, however, would be merely advisory. It is true that the school trustees undertook by resolution to assent to the transfer, but since, under either of two theories, that is, (1) the city had fee-simple title; or (2) the city held such land as trustee for the school district, the same result would be reached, namely that neither could make a donation thereof. Since the bill seeks only a removal of the cloud arising out of the status of the title claimed by the city and the school trustees, this is as far as we need proceed.
It was error, therefore, to confirm the title in the county. The bill ought to have been dismissed.
Reversed and decree here.
On Suggestion of Error
Jo Drake Arrington for appellee and Satterfield, Ewing Hedgepeth, as amici curiae, filed and briefed suggestion of error in which, for the first time, it was urged that legislative authority for the conveyance from the City of the County is found in Chap. 435, Laws 1948. The suggestion of error was overruled, without an opinion in response.