Opinion
No. 41140.
March 23, 1959.
1. Validation of bonds — proceeding for — publication of notice to taxpayers is process.
Publication of notice to taxpayers is process which requires their appearance if they have any objections to validation of bonds. Secs. 4314 et seq., 4318, Code 1942.
2. Validation of bonds — proceeding for — case in court with adverse parties.
Proceeding for validation of bonds is a case in court with adverse parties — the issuing district on the one hand, and the taxpayers on the other. Secs. 4314 et seq., 4318, Code 1942.
3. Validation of bonds — costs — requiring taxpayer to post bond to secure costs prior to hearing of objections — error.
In school bond validation proceeding, Chancellor could exercise discretion as to taxing of costs, but from nature of proceeding he could not exercise that discretion until after objections had been heard; and it was unfair for Chancellor to grant, prior to hearing on objections, motion to require objector to post bond to secure costs, especially where amount of bond was such that to all practical purposes taxpayer was refused right, given by law, to object to validation of bonds. Secs. 4314 et seq., 4318, Code 1942.
4. Appeal — validation of bonds — proceeding for — dismissal of taxpayer's objections was final decree from which appeal would lie.
Dismissal of taxpayer's objections to validation of school bonds was a final decree from which an appeal would lie.
5. Validation of bonds — right of taxpayer to have his objections heard — not affected by delivery of bonds.
Any right of taxpayer to have his objections to validation of school bonds heard would not in any way be affected by delivery of bonds. Sec. 4314, Code 1942.
6. Statutes — validation of bonds — proceedings for.
Statute requires that when objections to validation of bonds are filed a hearing must be had within ten days, at which time any competent, material, and relevant evidence may be heard, so as to inquire into validity of bonds. Sec. 4314, Code 1942.
Headnotes as approved by Gillespie, J.
APPEAL from the Chancery Court of Perry County; THOMAS D. OTT, Chancellor.
Scott Scott, Laurel, for appellant.
I. The Lower Court committed reversible error when it entered an order requiring Dr. N.W. Mills, taxpayer and objector in said cause, to post a $5,000.00 bond for costs before the objections duly and timely filed in said matter would be heard and refusing to have said cause set over for a hearing not later than ten days from the time of the first validation hearing and to notify the State Bond Attorney to be present at said hearing as provided by Section 4314 of the Mississippi Code of 1942, and dismissing the objections in said cause and entering a final decree validating the bond issue in question all in the face of objections made by appellant through his attorneys in open court as is shown by the record made in this cause. Love v. Mayor and Board of Aldermen of Yazoo City, 162 Miss. 65, 138 So. 600; Miller v. Silver Creek Separate School Dist., 131 Miss. 702, 95 So. 688; Sec. 316, Code 1930; Secs. 4314, 4318, Code 1942.
S.B. Majure, Richton, M.M. Roberts, Hattiesburg, for appellee.
I. At the beginning of the hearing there was filed by the attorney for the Town of Richton and the Richton Separate School District a motion for security for costs which was first presented orally to the Court. The Court entered an order fixing the security therefor at $5,000.00. This was in the sound discretion of the Chancery Court. When there was a refusal to give the bond the Court proceeded with the validation hearing and to decree validation. The appeal, is directed only to the refusal of the Court to set the cause over for hearing after the objector Mills had refused to post the cost bond. There is no merit in objector's contention. Sec. 4318, Code 1942.
The State's Bond Attorney filed his opinion and all legal papers in connection with the issuance of school bonds of the Richton Municipal School District with the chancery clerk as required by Section 4314, Code of 1942. Upon notice to him of this fact, the chancellor set the matter for hearing on November 1, 1958, and the chancery clerk then gave the proper notice to taxpayers to file their written objections, if any, on or before the date set by the chancellor. Appellant filed his written objections in due time, claiming that the bond issue election was illegal and fraudulent. On November 1, 1958, the proponents of the bond issue filed a motion for an order requiring appellant, the objector, to file a bond to secure court costs. Over objection of appellant, the court ordered appellant to post a $5,000 bond to secure the costs. Appellant declined to post the bond. The court then entered a decree validating the bonds and dismissing appellant's objections. This appeal is from the final decree validating the bonds wherein appellant's objections were dismissed without a hearing on the objections.
(Hn 1) The question is whether the chancellor erred in requiring the appellant to post the $5,000 costs bond.
Prior to the enactment of Chapter 32, Laws of 1928, the issuing district was liable for all costs of the validation proceedings, even when objections were filed. Miller v. Silver Creek Separate School District, 131 Miss. 702, 95 So. 688. Under Section 4318, the taxation of costs in such proceedings is discretionary when objections are filed.
The publication of notice to taxpayers is process which requires their appearance if they have any objections to the validation of the bonds. (Hn 2) The proceedings under Section 4314, et seq., is a case in court with adverse parties, the issuing district on the one hand and the taxpayers on the other. See Love v. Mayor and Board of Aldermen of Yazoo City, 162 Miss. 65, 138 So. 600.
(Hn 3) There is no statute and no precedent to sustain the action of the chancellor in requiring the cost bond in this case. There are statutes requiring a plaintiff or complainant to secure the costs either before suit is commenced or after the suit has been filed. We are unable to find, and counsel for appellee has not cited, any statute or precedent whereby a person who has been summoned into court may be required to secure the costs before he files his answer or objections. In the present proceedings, the chancellor may exercise discretion as to the taxing of costs, but from the nature of these proceedings he could not exercise that discretion until after the objections were heard. Moreover, the amount of the bond in this case is such that to all practicable purposes the taxpayer was refused the right, given by law, to object to the validation of the bonds. We hold that the chancellor erred in requiring the cost bond.
(Hn 4) Appellee says that the appeal is not from a final decree. We fail to see any merit whatever in this contention. The dismissal of appellant's objections was final. (Hn 5) And there is just as little merit in the contention that the question is moot because the bonds were delivered to the purchaser on November 3, 1958. Any right of the appellant to have his objections heard would not in any way be affected by the delivery of the bonds.
(Hn 6) Appellee also contends that the objections filed by appellant were insufficient at law. Appellee did not test the legal sufficiency of the objections. If appellee had demurred, appellant would have had the right to amend if his objections were not sufficient. If a motion to strike had been made, the chancellor should have allowed an amendment if tendered. In Lee v. Hancock County, 181 Miss. 847, 178 So. 790, this Court said:
"The appellee says that the court below should have stricken the amended objections from the record, for the reason that the statute contemplates that all objections thereto should be filed on or before the date first set for the hearing thereof. With this we are unable to agree. The clear intent of section 313 of the Code of 1930 is that a proposed issue of bonds by a political subdivision of the state shall not be permitted if there is a valid objection thereto. This intent might be nullified if a taxpayer is not permitted to amend his objections to the issuance of bonds prior to the final hearing as to their validity."
Section 4314, Code of 1942, the statute under which these proceedings were brought, provides in part: "And on the hearing the chancellor may hear additional competent relevant and material evidence under the rules applicable to such evidence in the chancery court, so as to inquire into the validity of the bonds or other objections proposed to be issued, and enter a decree in accordance with his findings." The statute clearly requires that when objections are filed a hearing must be had within ten days at which time any competent, relevant and material evidence may be heard so as to inquire into the validity of the bonds. Lee v. Hancock County, supra.
The decree of the chancellor is reversed and the cause remanded for further proceedings not inconsistent herewith.
Motion to dismiss appeal overruled; reversed and remanded.
Roberds, P.J., and Hall, Lee and Arrington, JJ., concur.