Summary
In Storey, the general rule that "public bodies... have only such powers as are conferred on them by law" is derived from Fernwood Rural SeparateSchool District v. Universal Rural Separate School District, 170 Miss. 35, 154 So. 268 (1934).
Summary of this case from Sartin v. City of Columbus Utilities CommissionOpinion
No. 32773.
May 31, 1937.
1. SCHOOLS AND SCHOOL DISTRICTS.
The trustees of a consolidated school have no authority to bring suit, except suit for recovery on policy insuring school property against loss by fire, cyclone, and tornado (Code 1930, sec. 6537 et seq., as amended, sec. 6631).
2. MUNICIPAL CORPORATIONS.
Public bodies or subdivisions of state have only such powers as are conferred on them by law, and, unless statute gives power to sue and be sued, such bodies or boards have not such power.
3. SCHOOLS AND SCHOOL DISTRICTS.
A bill in name of individual taxpayers and patrons of consolidated line school district complaining of order of A. county school board transferring A. county pupils of line school to other schools within A. county did not lie, despite statute authorizing suit in name of county to vindicate public right of part of inhabitants of county, where there was no allegation of any special claim or interest of complainants as compared with balance of taxpayers and patrons of district and no allegation that county board of supervisors had been asked and had refused to vindicate complainants' rights (Code 1930, sec. 271).
APPEAL from chancery court of Alcorn county. HON. JAS. A. FINLEY, Chancellor.
E.C. Sharp, of Booneville, for appellants.
Appellants contend that the action of the Alcorn County School Board at its purported meeting on August 22, 1936, was a nullity. First, because it was without jurisdiction or authority of law to pass the order that was attempted and purported to have been passed. The Pisgah Consolidated School is a line school embracing territory in both Alcorn and Prentiss counties. Second, it is shown by the pleadings and admitted by the demurrer that the Prentiss County school board did not concur in the action taken by the Alcorn County board. Third, the minutes do not show that the petition referred to in the order was also submitted to the Prentiss County board.
Section 6647, Code of 1930.
Certainly the transferring of a large number of pupils from the district is a matter "pertaining to the business of the school," and should be passed upon by the trustees and the county superintendents of both counties; and if a petition was necessary or proper the statute requires that duplicates be presented to and passed upon by the school boards of all counties interested. This was not done.
The filing of the duplicate petitions is jurisdictional and must be shown affirmatively by the minutes of the respective boards.
Appellants contend that county school boards have no authority to transfer pupils from one district to another. The transfer of pupils is governed by section 6637, Code of 1930.
Under the terms of this section no legal transfer of pupils from one district to another can be made without the written consent of the trustees of both districts.
We presume that the Alcorn county school board was attempting to make these transfers under the provisions of chapter 37, Laws 1935, but this chapter has no application. It amends Section 6639, Code of 1930, which section deals solely with the transportation of pupils. It does not pretend or attempt to amend or repeal section 6637, Code of 1930, which section deals with the transfer of pupils.
Appellants further contend that there was no legal meeting of the Alcorn county school board on August 22, 1936, and that the actions of the board on that day were a nullity. The minutes of the board recite that the members were notified by mail and met in special session but do not set out the notice and fail to show that notice of the meeting was given by publication as required by law.
Caston v. School Board, 170 Miss. 242, 154 So. 714; Green v. Sparks, 174 Miss. 71, 163 So. 895; Board of Supervisors v. Otley, 146 Miss. 118, 109 So. 851; Oliver v. Board, 90 Miss. 718, 44 So. 35.
It is contended by the demurrer that the appellants had no right to bring these proceedings. Certainly there can be no merit in this contention. They were trustees of the school charged with the duty of maintaining it and with doing all things necessary to preserve its efficiency and standing. In addition to being trustees some of them, at any rate, were patrons, and all of them were taxpayers of the school district and were in their official capacity and as private citizens, taxpayers and patrons of the school vitally interested in the welfare of the school and the school district, and proceedings were instituted on behalf of them as trustees, patrons and taxpayers and on behalf of all of the pupils, citizens and taxpayers of the district. To hold that they could not maintain this suit would be to hold that no one could maintain an action for the preservation of a school or school district when its efficiency and standing was being destroyed by the arbitrary, unauthorized and void proceedings and actions of a county school board.
It is suggested that appellants should have proceeded under sections 72 and 73 of the Code of 1930. This court held in Pitts v. Trantham, 157 So. 529, and cases cited therein, that the county school board was not a judicial body and, therefore, its orders could not be appealed from or brought up for review by certiorari. Therefore, no relief could have been obtained by such a proceeding.
W.C. Sweat, of Corinth, for appellees.
School districts, being public bodies and governmental agencies or governmental subdivisions, such districts as such, and the trustees of such districts, have no authority whatever to bring suits unless they are specifically authorized, or are authorized to do so by necessary implication, by statute, and there is no statute in the state of Mississippi authorizing consolidated school districts, line school districts, or the trustees of such school districts to bring suit.
Mississippi Livestock Sanitary Board v. Williams, 133 Miss. 98, 97 So. 523.
The precise question here presented has been decided by this court in a comparatively recent case against the contention of appellants in a case in which one rural separate school district had sued another, in which Judge Anderson, speaking for the court, said: "Appellant contends that one rural separate school district has no right to sue another school district of the same character; that such school district, under the law, can neither sue nor be sued; that there is neither expressed nor implied authority in the school code authorizing such suits; that a rural separate school district is like a consolidated school district, and for the same reasons is a governmental subdivision of the state, exercising governmental functions, and, in the absence of the statute either expressly or impliedly authorizing such districts to sue and be sued, they have no right to sue and are exempt from suit. Appellant's position is supported by Ayres v. Board of Trustees, 134 Miss. 363, 98 So. 847; Nabors et al. v. Smith, 135 Miss. 608, 100 So. 177, and Stringer et al. v. Roper, 152 Miss. 559, 120 So. 460."
Fernwood Rural Separate School District v. Universal Rural Separate School District, 170 Miss. 35, 154 So. 268.
They had no right as individuals and taxpayers to bring the suit until they had first called on the board of supervisors of the county to bring the same and had been refused.
McKee v. Hogan, 145 Miss. 747, 110 So. 775; American Oil Co. v. Interstate Wholesale Grocers, Inc., 138 Miss. 801, 104 So. 70; Baird v. Georgia Pacific R.R. Co., 76 Miss. 521, 24 So. 195.
The appellants' purported amendment to the original bill did not change the situation at all. After the purported amendment it was still a suit by these parties as individuals and patrons.
Before a private citizen can resort to injunction to litigate public questions, he should show that he has applied to the proper parties without redress, and also that he has invited other citizens to join with him in the litigation. Neither of these things was done by the appellants in the case at bar.
McKee v. Hogan, 145 Miss. 747.
The county school board is a public body which can not be sued, there being no statutory authority permitting suits to be brought against them.
Ruff v. Fisher, 155 So. 642, 115 Fla. 247; Donald v. Staufer, 140 Miss. 752, 106 So. 357; American Oil Co. v. Interstate Wholesale Grocers, Inc., 138 Miss. 801.
The discretion which public bodies have in performance of their duties and functions cannot be controlled by injunction.
32 C.J. 252, sec. 396.
The bill is so vague and indefinite that it is insufficient to form any basis for equitable relief.
The order of the county school board transferring the pupils is valid.
Section 6637, Code of 1930; Gaston v. County School Board, 170 Miss. 242, 154 So. 714; Green v. Sparks, 174 Miss. 71, 163 So. 895.
Storey and four others as trustees of the Pisgah Consolidated Line School District exhibited their bill in the chancery court of Alcorn county against Rhodes, as superintendent of education and president of the County School Board of Alcorn county, and the members of said county school board.
The bill alleged, in brief, that the Pisgah consolidated school was a line school, embracing territory in both Alcorn and Prentiss counties; that the school building had been destroyed by fire, and that it was being reconstructed; that the board of trustees thereof had provided buildings and equipment for carrying on the school until the completion of the new building; that contracts had been made with teachers for that purpose. It further alleged that by an invalid order the county school board of Alcorn county had transferred all the pupils in Alcorn county to other schools within that county; a copy of the order was made an exhibit to the bill. It further alleged that by the transfer of the Alcorn county pupils from the Pisgah school to other schools the number of pupils in the Pisgah school was greatly reduced, and the funds would prove inadequate to carry on the Pisgah school, and it would be weakened from an academic and financial standpoint.
There was no allegation that the trustees of the Pisgah consolidated school had any different, or special, interest from other patrons and taxpayers within the territory affected. There was no allegation of any request made of the board of supervisors of either county to take steps to prevent the transfer of the pupils in Alcorn county from the Pisgah school to other schools.
Appellees, members of the County School Board of Alcorn County, filed a demurrer on the ground, among others, that the trustees of a consolidated school district had no authority under the law to bring this suit. The court sustained the demurrer; thereupon appellants, the trustees of the consolidated school, amended their bill by bringing it as individual taxpayers of the territory and patrons of the school. The court sustained a demurrer to this amended bill on the ground, among others, that the individuals and taxpayers had no right to bring the suit until they had first called upon the board of supervisors of the county to bring it, and it had refused so to do.
An examination of the school statutes, chapter 163, Code 1930, as amended (section 6537 et seq., as amended), reveals that no authority has been vested in trustees of a consolidated school to bring suit, except in one instance. Section 6631 confers the authority upon all trustees of the several kinds of schools being operated in this state to insure the school property against loss by fire, cyclone, and tornado, and, when necessary, to bring suit for the recovery thereof. It is the settled rule in this state that public bodies or subdivisions of the state have only such powers as are conferred on them by law, and, unless the statute gives the power to sue and be sued, such boards or bodies have not such power. Fernwood Rural Separate School District v. Universal Rural Separate School District, 170 Miss. 35, 154 So. 268, and authorities there collated and discussed. The demurrer to the original bill was properly sustained.
The court was also correct in sustaining the demurrer to the amended bill, which simply brought the same suit in the name of the same individuals as taxpayers and school patrons. The territory of the school district lying in Alcorn county was a part of that county. There was no allegation of any special claim or interest of these particular individuals as compared with the balance of the taxpayers and patrons of that school district. There was no difference between these named taxpayers and others. There was no allegation that the board of supervisors had been asked and had refused to vindicate their rights. The rights here sought to be asserted were public in their nature.
Section 271, Code 1930, provides that "suit may be brought, in the name of the county, where only a part of the county or of its inhabitants are concerned, and where there is a public right of such part to be vindicated." That right conferred by statute to control the litigation of the county, or a part thereof, cannot be seized upon by individual taxpayers in the circumstances here alleged for the assertion of supposed public rights. A discussion of this proposition is to be found in the case of McKee v. Hogan, 145 Miss. 747, 110 So. 775, wherein the matter is finally disposed of adversely to these taxpayers.
After the second demurrer was sustained, the appellants declined to plead further, and the court rendered final judgment against them. We find no error in this action, and we do not protract the discussion as to other matters raised by the bill and demurrer. There was no right here to sue either as trustees or as individual taxpayers.
Affirmed.