Opinion
No. 32905.
November 22, 1937.
1. SCHOOLS AND SCHOOL DISTRICTS.
A county school board can only act and speak, with respect to certain particulars relating to an attempted organization of a consolidated school district, by the entry on its minutes.
2. SCHOOLS AND SCHOOL DISTRICTS.
Under statutes, in organizing a consolidated school district, the county school board must enter on its minutes the description of boundaries of the proposed district as well as names of sections or parts of sections composing the district (Code 1930, sections 6583, 6584).
3. SCHOOLS AND SCHOOL DISTRICTS.
Under statute, in organizing a consolidated school district, the county school board must publish the order, and its minutes must show the boundaries (Code 1930, section 6584 (a, b).
4. SCHOOLS AND SCHOOL DISTRICTS.
Under statutes, in organizing a consolidated school district, the county school board is required to adjudge that the taking of land and patrons from former districts and adding to another would not impair efficiency of those from which the land and patrons are taken (Code 1930, sections 6583, 6584).
5. SCHOOLS AND SCHOOL DISTRICTS.
Jurisdiction of county school board to organize consolidated school district requires that order of the board adjudicate that ten or more square miles are included within the district, and that the order locate the schoolhouse (Code 1930, sections 6583, 6584).
6. SCHOOLS AND SCHOOL DISTRICTS.
County school board's failure to find that taking of lands and patrons from three school districts and adding to another would not impair the efficiency of the three districts, failure to include in its order an adjudication that ten or more square miles were included within such district, and failure to locate the schoolhouse, rendered attempted organization of consolidated district void (Code 1930, sections 6583, 6584).
7. SCHOOLS AND SCHOOL DISTRICTS.
Statute validating any attempted organization of a school district which has the boundaries set forth in the minutes of the county school board did not validate an attempted organization in which the county school board did not describe the boundaries of new district on its minutes as required by other statutes (Code 1930, sections 6583, 6584; Laws 1936, chapter 263, section 2).
8. SCHOOLS AND SCHOOL DISTRICTS.
County school boards which desire to create a new consolidated school district must be governed by the applicable statutes and must see that the essentials are set forth on their minutes (Code 1930, sections 6583, 6584).
APPEAL from chancery court of Itawamba county. HON. JAS. A. FINLEY, Chancellor.
I.L. Sheffield, of Fulton, for appellants.
It will be noted that this is a collateral attack and not a direct appeal from the action of the school board. If an appeal had been taken from the action of the school board on June 11, 1935, there would be a question as to whether or not the description of the territory sought to be consolidated was legally sufficient but no such appeal was taken and therefore it is a collateral attack and the courts will not go beyond the plain reading of the minutes. But the Legislature of 1936, in order to give effect to the will of the people, passed Chapter 263, House Bill 644, shown at page 516 of the Acts of the Legislature of Mississippi of 1936.
Statutes, as the one above referred to, are construed ordinarily to have prospective operation unless a contrary intention is manifested by clearest expression.
Bell v. Union Planters Bank Trust Co., 137 So. 485, 105 Miss. 485; Rosswell Commercial Alcohol Corp. v. Tennis Sheen Transfer Co., 138 So. 183, 18 La. App. 725.
A validating act may render immaterial procedure required by statute that could have been dispensed with in first instance, although such procedure had been judicially held to be material. Certainly the Legislature in its wisdom could have in the beginning required only the naming of sections and parts of sections and really this is all that is meant when it is considered that the sum of all of the parts equals the whole any way.
Taylor v. Tennessee and Florida Land Investment Co., 72 So. 206, 71 Fla. 651.
The general rule would seem to be that an enabling or a curative law in the exercise of judicial power on the part of the Legislature is in contravention of the constitution as respects the separation of the State Government into three distinct parts, that is, the legislative, the executive and the judicial branches of the government. But this general rule does not prevent the Legislature from confirming particular acts, curing defects in past transactions, and such statutes, so far as they do not deprive any person of any right, are not unconstitutional as encroaching on the prerogative of the judicial department of the government.
6 R.C.L. 162; Boone v. Bowers, 30 Miss. 246, 46 Am. Dec. 159; 69 Miss. 939, 11 So. 111; 6 L.R.A., sections 162-164; 70 A.L.R. 1436.
The petition on the part of the patrons of this territory was signed by one hundred per cent thereof as shown by the record in this case, the answer and cross bill setting this up and the proof showing it. The school board handled the case in the same way and manner in which other districts were created, as shown by the records and minutes of the school board. They did what they thought was the proper thing and complied with the will of the people. The Legislature passed this curative statute knowing that school boards not being experts in writing descriptions would fall into error and so such errors were cured by this act in order that the will of the people might prevail.
I respectfully submit that the curative statute of 1936 validated fully the action of the school board in the creation of this district and that the learned chancellor fell into fatal error in refusing so to hold.
Brown Elledge, of Fulton, for appellees.
The school board at the June meeting attempting to create the Pleasant Grove Consolidated School District, we claim, is void.
The order and the petition is silent as to whether or not the petition was signed by a majority of the qualified electors residing in the proposed district. This fact is jurisdictional and should affirmatively be shown in the proceedings.
Clanton v. Board of Supervisors, 164 Miss. 511, 154 So. 108; Botts v. Prentiss County, 166 So. 398; Section 6584, Code of 1930.
The order does not show that the board adjudicated whether or not the taking of the territory from the Fairview, Clay, and Oakland consolidated school districts would impair the efficiency of these districts. This fact should have been adjudicated by the board and the fact of adjudication shown in the proceedings.
Section 6584, Code of 1930; Belden Consolidated School District v. Lee County, 160 Miss. 157, 133 So. 255.
The order fails to affirmatively show that the proposed district contained ten or more square miles.
Greene v. Sparks, 163 So. 896.
The order does not show the location of the schoolhouse in the proposed district.
Bullock v. Sanford Consolidated School District, 153 Miss. 477, 121 So. 267.
The order is void because the school board failed to fix the boundaries and name the sections and parts of sections, composing the district as required by section 6584, Code of 1930. The school board did not even attempt to fix the boundaries of the proposed district and this fact is conceded by the attorney for the appellants, but it did attempt to name the sections and parts of sections, composing the district, but there are so many patent ambiguities that it renders the order void.
We contend that the order is void because the school board and those interested, resorted to gerrymandering in the creation of the district and by referring to the plat as drawn it will clearly show that gerrymandering was practiced in this case. A principal of gerrymandering has been condemned by the court as unsound in principal.
Gore v. Doolittle, 77 Miss. 620; Myers v. Board of Supervisors School District, 156 Miss. 251, 125 So. 718.
We contend that the order is absolutely void for the reasons above set, and because of other defects appearing in the order of the school board. The school board did not even attempt to follow the law in the creation of this district.
It is contended by the attorney for the appellant that since this is a collateral attack that this case cannot be maintained. We contend that it is a law that any order, which is void, can be attacked collaterally.
Belden Consolidated School District v. Lee County, 160 Miss. 157, 133 So. 255; Green v. Sparks, 163 So. 895.
We are of the opinion that if the school board in creating the Pleasant Grove Consolidated School District had fixed boundaries and set them forth and described them in the minutes that perhaps all of the defects in the order and proceedings would have been cured by the curative act, but since this was not done, this case does not come under the provisions of said act and the order and proceedings creating the district are void, notwithstanding same.
We contend that where the school board fails to set forth the boundaries of the district in its orders and minutes in the creation of a district that the organization of such district is not validated by this curative act.
On carefully reading Chapter 263 of the Laws of 1936, it appears that the Legislature thought that many kinds of districts had been created for the purpose of securing aid from the government with authority of law. It was the purpose of the Legislature in passing this act to confirm and ratify the acts of different boards in creating these kinds of districts, and was directed largely to other districts than school districts, because the Legislature had heretofore set out how school districts could be created.
If the court should hold that the curative act referred to above cured all defects in the organization of the school district under consideration and that the district came under the provisions of said act and now was a valid district, then we would have a school district without any fixed boundaries, and a district where the true boundaries cannot be ascertained. We cannot believe that it is the intention of the Legislature to validate such districts. The Legislature intended to validate the districts which had fixed boundaries set forth in the order and minutes creating same.
There is no reason why the school boards should not be required to follow the law as set out for the organization of school districts and if it is the policy of the Legislature to pass curative acts as in this case, which would cure the organization of the district in question, then the school board can act as it pleases, and there will be no restraint on them in the creation of the school districts, and they can deal as they please with the property of the people in school matters.
The appellees, W.E. Wileman et al., as trustees of, and taxpayers in, the Fairview Special Consolidated School District, C.L. Bowen et al., as trustees of, and taxpayers in, the Clay Consolidated School District, and J.E. Hughes et al., as trustees of, and taxpayers in, the Oakland Consolidated School District, filed their bill against D.E. Leech, county superintendent of education of Itawamba county, the school board thereof, and the trustees of Pleasant Grove Consolidated School District, in which they alleged that on June 11, 1935, the county school board, upon the petition of A.D. Tucker et al., undertook to create the Pleasant Grove Consolidated School District, and in so doing added thereto certain territory from each of the other districts named. The order of the board creating the Pleasant Grove Consolidated School District was made an exhibit to the bill. The bill further charged that the order was void for the reason that the territory as added to and constituting the new district was not alleged to have constituted ten square miles; that the district was gerrymandered so as to include certain persons and exclude certain persons; that the minutes of the board did not show that the school board affimatively found that a majority of the qualified electors had signed the petition for the creation of the district; that said order did not define the boundaries of said proposed district; that said order did not locate the schoolhouse in said proposed district; that said order did not affirmatively find that the transferring of the territory from the Fairview, Clay, and Oakland districts would not seriously interfere with or impair the efficiency of the said districts. The bill stated that for these and other reasons the district was void, and that it would impair the efficiency of the other districts, and that taxpayers living in the district would be subject to pay taxes for a bond issue in the former district and to pay such additional taxes as might be levied for the operation of the new district; that it would be inconvenient to the school children and would disrupt each of the three districts affected.
It was further charged that the trustees of the Pleasant Grove Consolidated School District should be enjoined from making appropriations and dispensing the funds for the operation of the district. The prayer of the bill was to the effect that the status quo existing before June 11, 1935, with reference to the districts and the patrons thereof and the school children therein, be restored by the court; that the order creating the Pleasant Grove Consolidated School District be declared void, and that the children be allowed to attend the schools to which they had been assigned prior to the order.
A demurrer to the bill was sustained on the ground of multifariousness. Thereupon separate bills to the same effect were filed by the trustees and taxpayers of each of the named districts. A special plea was filed by the county school board et al., setting up that the organization and creation of the district had been validated by chapter 263, Laws 1936. The county school board et al., filed a separate answer to each bill denying the conclusion of the pleader in the original bill that the organization of the Pleasant Grove Consolidated School District was void for any of the reasons set forth. On the hearing of the cause the minutes of the school board were offered in evidence, as was some oral testimony in connection therewith. The county school board offered witnesses to show that certain jurisdictional facts actually existed. The court excluded this testimony.
The decree of the chancellor sustained the allegations of the bill and, in effect, declared the organization of the Pleasant Grove Consolidated School District void and restored the status quo of the several districts as they had existed prior to the order of June 11, 1935.
The main assignment of error presented to this court is that the court below should have sustained the appellants' contention that the irregularities and defects in the organization of the Pleasant Grove Consolidated School District were cured by chapter 263, Laws 1936. As we understand it, the only questions presented to us are whether or not the order creating the district was void, and, if void, whether the organization of the district was validated by chapter 263, Laws 1936.
The minutes of the county school board show only these facts with reference to the organization of the district in question:
"Order granting the petition of A.D. Tucker, et al., consolidating certain territory as follows: . . .
"The petition was considered and it is ordered that the following territory be and is consolidated into a consolidated district by the name of Pleasant Grove to-wit: [Then follow about forty lines of descriptions of separate tracts of land, a number of which were void for uncertainty.]"
We shall consider no other questions than the ones raised here by the briefs of counsel. The original organization of this district was void. The school board can only act and speak, in the particulars hereinafter pointed out, by the entry on its minutes. Botts v. Prentiss County Board, 175 Miss. 62, 166 So. 398. By sections 6583 and 6584, Code 1930, it was the duty of the board to enter on its minutes a description of the boundaries of the proposed district, as well as name the sections or parts of sections composing the district. This the county school board failed to do. The county school board attempted to organize a district upon petition without the necessity of subsequent publication of the order, as provided for in paragraph (a) of section 6584 of the Code. The minutes show no boundaries as required by paragraph (b) of section 6584 of the Code.
It was essential that the county school board should affirmatively find that the taking of land and patrons from the three districts and adding to another would not impair the efficiency of the three districts. The statute requires that the county school board shall so adjudge. Belden Consolidated School District v. Lee County, 160 Miss. 157, 133 So. 225. The order of the school board does not adjudicate that ten or more square miles were included within this district. This is also essential and jurisdictional. Green v. Sparks, 174 Miss. 71, 163 So. 895. The order did not locate the schoolhouse. This is required by section 6584, Code of 1930, and is jurisdictional, as this court held in Board of Supervisors v. Brown, 146 Miss. 56, 111 So. 831; Barrett v. Cedar Hill Consolidated School District, 123 Miss. 370, 85 So. 125. The organization of the district was void for these and perhaps other reasons.
Did chapter 263, Laws 1936, validate the organization of the school district in question? Section 2 of that act is as follows: "That in all cases where the county school board or board of supervisors of any county in this state or the governing board of any city or town of this state have heretofore organized or attempted to organize a district under any of the laws of this state such district, with the boundaries set forth and described in the minutes of such county school board, board of supervisors or governing board of the city or town, be and the same is hereby declared to be a valid district, and the organization and creation thereof and all orders, resolutions and proceedings of such board in connection with such organization and creation be and they are hereby ratified, approved, confirmed and validated."
The language is clear, plain, and unambiguous that the effort of that chapter was to validate those school districts which had been theretofore organized or attempted to be organized in which the boundaries thereof were set forth and described on the minutes of such county school boards. In the case at bar the order organizing this district ignored the provisions of the controlling statute as to setting forth the boundaries. An examination of that entire act, as well as the title thereto, shows that it was the purpose of the Legislature to validate only those districts which had been attempted to be organized with the boundaries set forth and described on the minutes of the county school board. We do not think the doctrine relied on by counsel — "that is certain which can be made certain" — can be invoked here. The county school board did not undertake to describe the boundaries on its minutes, and therefore the order is void. The purpose of the act was to permit a district which had set forth its boundaries on the minutes of the creating board to secure loans and certain advantages from federal agencies. The Legislature conceived, as we think, that the federal agencies would not favorably consider a district which had not defined its boundaries on the minutes of the board. By the terms of the validating act the organization of this district was hopelessly incurable.
We conclude this opinion with the statement that county school boards which desire to advance the educational interests of their counties by the creation of these districts, as well as all other such creating bodies organizing districts which shall be subject to taxation, would do well to consider the controlling statute which empowers them so to do; be governed thereby, and at least undertake to follow the plain provisions of the statute in establishing such districts. The cases cited, supra, demonstrate the necessity for the school boards to be governed by the statute under which they propose to exercise authority, and to see that the essentials are set forth on their minutes. It is with reluctance that this court is compelled in this, as well as in other cases, to declare the organization of such districts void, but we have no alternative, and, so long as the provisions of the empowering statutes are ignored, just so long will confusion continue; and while so declaring it does seem to us that the Legislature might in its wisdom abridge, simplify, and clarify the existing school laws and remove therefrom any unnecessary restrictions placed upon these boards, consistent with the public good and the final attainment of the object sought — the education of the children of the state.
Affirmed.