Opinion
No. 37603.
April 24, 1950.
1. Line school districts — tax levy to support — changes in districts — appeal — mandamus.
A line consolidated school district was created and on the petition of a majority of the qualified electors an order was entered by the board of supervisors that an annual tax levy of eight mills be made on all the property of the district but the board of education of one of the counties having attempted to detach the territory in that county and place it in another district, the board of supervisors of the latter county refused to make the levy for the year in question and the district attorney sought by mandamus to compel them to do so, Held:
(a) That appeal from the action of the board would not be a speedy remedy in such a case and that the delay which would thereby result justified a resort to mandamus.
(b) That the levy was not a matter about which the board of supervisors had any discretion but was a continuing duty expressly imposed by law.
(c) That deductions from, additions to, or abolishment of line school districts are to be made by the board of education of both counties, and any action to that end by one only is ineffectual.
And (d) That the district attorney had the authority and right to institute the proceeding.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Quitman County; E.H. GREEN, Judge.
Gerald Chatham, and Caldwell Caldwell, for appellant.
I. Before there can be any change made in the boundaries of a line school the school boards of both counties or the interested counties must pass the orders. Therefore the orders of the school board of Yalobusha County, alone, can not remove territory from the Enid District, a line school, with territory in Tallahatchie and Yalobusha Counties.
(a) Unless the statute providing for changes, alteration and annexation of territory to school districts is followed the orders of school boards are of no effect. As there was no petition filed with the school boards requesting territory be taken or removed from the Enid District the school board had no right to take any property from the Enid District and the school board's order annexing the territory to the Oakland District did not take it from the Enid District.
(b) The order of the school board annexing territory in the Enid District to the Oakland District on August 6, 1949 did not have the power and effect of releasing the territory from the payment of taxes to the Enid District for the year 1949. "Line Schools", Code 1942 Sections 6277, 6375; "County school board-powers", Code 1942 Section 6274 (d), (e); "District budgets" Code 1942 Section 6539: "Basis of estimated revenues", Code 1942 Section 6540; "Tax levy not reduced, except", Code 1942 Section 6550: "District levies", Code 1942 Section 6519; Belden Consolidated School District v. Lee County, 160 Miss. 157, 133 So. 225; Leech, et al. v. Wileman, et al., 179 Miss. 836, 177 So. 12.
II. Mandamus is the proper remedy to require the board of supervisors of Yalobusha County to make a levy of eight mills for the Enid District, after the levy has been fixed by a former order of the board, when the said board fails and refuses to make the levy.
(a) When the board of supervisors heard the request of the petitioners to fix the tax levy for the Enid District and entered an order on November 5, 1929 adjudicating the matter and fixing the tax rate on its minutes and no appeal was taken, the order became final and it was the duty of the board to make the tax levy annually thereafter. No appeal lies from their refusal to levy the tax as they have only an administrative duty to perform.
(b) The district attorney is the proper person and he is authorized by statute to bring a mandamus action on behalf of the State against the board of supervisors of his district when they fail to perform a duty imposed on them by law. Code 1942 Section 1109; Board of Supervisors of Wilkerson County v. Ash, et al., 142 Miss. 686, 107 So. 763; 34 Am. Jur. Section 214, page 982; 7 Words and Phrases (Perm. Ed.) Vol. 23, 268; Poyner v. Gilmore, 171 Miss. 859, 158 So. 922; Hebron Bank v. Lawrence County, 109 Miss. 397, 69 So. 209; Board of Supervisors of De Soto County v. Pidgeon-Thomas Iron Co., 114 Miss. 274, 75 So. 117; Merriwether v. Muhlenberg, 120 U.S. 354, 30 L.Ed. 635; Taylor, et al., County Board of Supervisors v. State, ex rel. Collins, Attorney General, 121 Miss. 771, 83 So. 810; Board of Supervisors of Calhoun County v. State, ex rel. Patterson, District Attorney, 206 Miss. 443, 40 So.2d 273; Board of Supervisors of Quitman County v. State, ex rel. Crisler, District Attorney, 205 Miss. 43, 38 So.2d 314.
Kermit R. Cofer and Stone Stone, for appellee.
I. The plaintiff's remedy for refusal of the defendant to levy the tax complained of was by direct appeal to the circuit court, and mandamus does not lie in this case. Section 1196 Code 1942 provides for appeals from the assessment of taxes. Section 1195 Code 1942 provides for an appeal to the circuit court by "any person aggrieved by a judgment or decision of the board of supervisors . . ." Our Court has held that appeal is the remedy of a person aggrieved at the board of supervisors' action on a tax levy. Board of Supervisors of Wilkinson County v. Ash, 142 Miss. 686, 107 So. 763, and that Section 1195 is that under which such an appeal should be taken. Havens v. Brown, 132 Miss. 747, 96 So. 405; City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287; In re Validation of Bonds of McNeill Consolidated School District, 185 Miss. 864, 188 So. 318; Board of Supervisors of Quitman County v. State, ex rel. Crisler, District Attorney, 205 Miss. 43, 38 So.2d 314; Board of Supervisors of Prentiss County v. Mississippi State Highway Commission, 42 So.2d 802.
II. The district attorney of the Seventeenth Judicial District of Mississippi is the legal advisor of the defendant on revenue matters such as that involved in this suit, has the duty of representing the counties in his district in civil litigation, and had no authority to institute this suit against this defendant. Sections 3920, 3923 Code 1942.
It is respectfully submitted that the district attorney, who has the duty of representing the County of Yalobusha in civil litigation and of advising the board of supervisors on revenue and expense matters of the county, may not assume the incongruous position of representing a litigant, or, for the party in interest, of being the party bringing suit, against the very body — the board of supervisors — of which he is the legal advisor, on the very matter on which the law makes it his duty to advise the party made defendant in his suit.
Appellee admits that the district attorneys instituted the suits in Board of Supervisors of Quitman County v. State, ex rel. Crisler, District Attorney, 206 Miss. 43, 38 So.2d 314 and Board of Supervisors of Calhoun County v. State ex rel., Patterson, District Attorney, 206 Miss. 443, 40 So.2d 273, but these cases are not authority on the point here made, for the question of the right of the district attorney to bring suits seems not to have been raised, and the Court was not called on in either of them to uphold or deny the assumed authority.
This is a mandamus proceeding to require the Supervisors of Yalobusha County, Mississippi, to levy a tax of eight mills on each dollar of taxable property located in that part of Enid Consolidated School District situated in said county. The Board of Supervisors moved to dismiss the petition on the grounds (1) the remedy of petitioners was by appeal from the refusal of the supervisors to levy the tax; and (2) that the District Attorney, in whose name the petition was filed, had no authority to institute and maintain the proceeding. The trial judge sustained the motion and dismissed the petition; hence this appeal.
On the first proposition, appellee Board says mandamus will not lie, first, because the petitioners had an adequate and full remedy by appeal, and, second, the action of the Board involved the exercise of discretion, or a quasi judicial function.
(Hn 1a) As to the remedy, Section 1109, Code 1942, provides that mandamus may issue ". . . where there is not a plain, adequate, and speedy remedy in the ordinary course of law." It is true that appeals lie from the action of the supervisors in levying, or refusing to levy, taxes, Sections 1195 and 1196, Code 1942, yet we do not think that procedure in this case would have been a "speedy" remedy. The supervisors of Yalobusha County took no action to levy taxes at the October 1949 meeting. Conceding, but not deciding, that this non-action constituted ground for appeal to the circuit court, we judicially know that the next term of the circuit court for the second judicial district of that county was the second Monday of January, and that for the second district was the fourth Monday in January. The levy of this tax was an urgent matter, and had it been heard on appeal to the circuit court six months could have elapsed after such hearing before the appeal had to be perfected. The mandamus hearing was heard in vacation in October 1949, and under that procedure we have reached it on the Supreme Court docket as quickly as proper procedure permits. This element of speed, or delay, we think justifies the mandamus proceeding under the circumstances.
(Hn 1b) Next, it is said the levy, or nonlevy, of the tax was a matter of discretion with the Board. Under the state of this record, we do not think the supervisors had any discretion in the matter. Enid Consolidated School District, embracing lands in both Tallahatchie and Yalobusha Counties, was legally created as a line school in 1916. On November 5, 1929, the supervisors of Yalobusha County adopted an order reciting that a petition signed by a majority of the qualified electors of the district had been presented to the Board praying for a tax levy of eight mills on the dollar against the taxable property in the district to supplement the county funds in the operation of the school, extension of the term, improvements of school property, etc. It then adjudged and ordered "that a levy of eight mills be made annually on all property in the said Enid Consolidated School District in Yalobusha County, Mississippi, for the purpose set forth above, which levy shall be made at the time and in the manner as county levies are made and such taxes shall be collected as other county taxes are collected." The order expressly adjudicated the petition was filed under Chapter 283, Laws of Mississippi 1924. That Chapter, in Section 104 thereof, provides "When the amount of the required tax shall once be fixed, it shall remain the same for each successive year or as long as the district is maintained, unless changed by a petition of the majority of the qualified electors of the district." The quoted provision was brought forward, and now appears, as a part of Section 6519, Miss. Code 1942. The Board of Supervisors of Yalobusha County imposed the same yearly tax from 1929 to the time of its failure to do so in October, 1949, without further petition from the electors of the district. The law, as is seen, expressly made it the duty of the board to do that unless changed upon petition of a majority of the qualified electors of the district. No such petition has been filed.
It will be noted that the tax having been once fixed, as was done here, it is the duty of the supervisors to levy the tax annually thereafter until a majority of the electors of the district petition otherwise, "or as long as the district is maintained". The supervisors here say that the district is not now being maintained because, at a special meeting of the County School Board of Yalobusha County held August 6, 1949, that board undertook, by order, to detach from the Enid Consolidated Line School District and attach to the Oakland Special Consolidated School District, all of the territory lying in Yalobusha County theretofore a part of the Enid School District. This was done upon petition of a majority of the electors of that territory and of the Oakland District. No action was taken on such petition by the Board of Education of Tallahatchie County. The petition of the electors in the Enid District lying in Yalobusha County stated it was filed under Section 6274 (d), whereas the order of the supervisors seems to have followed subsection (e) of said section. (Hn 1c) In any event, additions to, deductions from, and abolishment of, line school districts are to be made, not by the board of education of one county, but of such boards of both counties. The action here, taken alone by the Board of Education of Yalobusha County, was ineffectual. Sections 6274 and 6275, Miss. Code 1942.
(Hn 1d) The district attorney had the power and right to institute this proceeding. Section 1109, Code 1942.
It follows that it was the duty of the Supervisors of Yalobusha County to levy a tax of eight mills against the taxable property of the Enid School District lying in Yalobusha County for the year 1949. The mandamus will issue here directing that to be done.
Reversed and so ordered.