Borroum v. Purdy Road Dist.

95 So. 677, 131 Miss. 778

• Court: Mississippi Supreme Court
• Decided: March 15, 1923
• Docket: No. 23338
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

Certain persons filed with the board of supervisors of Alcorn county,- Miss., a petition in the following language:

“The undersigned petitioner, residing in the hereinafter described territory in Alcorn county, Miss., respectfully petitions your honorable body that they be allowed to come under the provisions of chapter 176 of the Acts of 1914 and amendments thereto, including chapter 277 of the Acts of 1920, and that bonds be issued on the said territory for the purpose of constructing roads in said territory as provided by said laws. The territory desired to come under the provisions of said acts is described as follows: The southwest quarter of section 17, all of section 19, the west half of sections 20 and 29, all of sections 30, 31, and the west half of 32, all in township 1, range 8; all of sections 13, 14, 23, 24, 25, 26, and the west half of 35, and all of 36, in township 1, range 7.”

This petition was signed by thirty-five names and was presented to the board of supervisors on the 3d of July, 1922, being the first Monday in said month. The board continued in session from day to day until the 7th of July, on which day it was ordered that, pursuant to the petition filed containing more than twenty per cent.'of the qualified electors in the proposed Purdy road district, an election was ordered to be held in said district on the 31st day of July, 1922, to ascertain whether dr not the said district should be incorporated into a road district and bonds issued thereon not to exceed twenty thousand dollars, and ordering the election commissioners of said county to give notice of such election. This order, appearing upon the minutes, read as follows:

“In re Purdy Road District.

'Come on the matter of the organization of the road district known as the Purdy road district, comprising part of the First and second supervisors’ districts of Alcorn county, and containing the following territory, to-wit: The southwest quarter of section 17, all of section 19, the west half of sections 20 and 29, all of sections 30, 31, and the west half of 32, all in township 1, range 8; all of sections 13, 14, 23, 24, 25, 26, and the east half of section 35, and all of section 36, in township 1, range 7.

“And it appearing that there is a petition on file containing more than twenty per cent, of the qualified electors residing in said territory asking that said territory be allowed to come under the provisions of chapter 176 of the Acts of 1914, and amendments thereto, including chapter 277 of the Acts of 1920, and that bonds be issued on the said territory for the purpose of constructing roads in the road district, as provided by law, and it appearing that the election should be ordered, and that, if the election should carry, the said territory should be incorporated into a road district as prayed for, and that bonds should be issued thereon as provided by law, it is therefore ordered that the said territory be incorporated into a road district as provided by law and as prayed for, and that bonds be issued thereon, not to exceed ticenty thousand dollars, for the purpose of constructing roads in the said road district as prayed for and as provided by law, providing the election so ordered shall be carried in favor thereof.

“It is ordered that said election be held in said territory on July 31st for the purpose of determining whether or not the said territory shall be incorporated into a district and bonds issued thereon, at which all qualified electors of said district shall be entitled to vote, and the eléction commissioners of Alcorn county are hereby ordered and directed to take such steps as may be necessary to hold said election according to law in said district on said date.”

Thereupon notice of the election ivas given and an election held on the 31st day of July, 1922, and the commissioners of election returned to the board of supervisors that the election had been carried for the bond issue by a vote of thirty-five for the bond issue and twenty-four against the bond issue, with a majority of eleven in favor of the bond issue. Proof of publication of notice was filed with the board showing publication of the notice, including the territory described in the petition and in the order of the board of supervisors. Thereupon the board appointed road commissioners for the said district, and these commissioners ordered bonds to be issued in the sum of fifteen thousand dollars, being five thousand dollars less than the amount proposed to be issued in the notice and order of the hoard. At the August meeting- the board proceeded to order the bonds to be issued in accordance with the statute and ordered them certified to the state bond attorney for his opinion in accordance with chapter. 28, Laws of 1917. The state bond attorney examined the said transcript and proceedings and certified to the board that in his opinion the proposed bonds were valid and legal. Thereupon the proceedings were filed in accordance with that chapter and notice given for hearing before the chancellor, at which time the appellants appeared and presented their objections; it being alleged that the board did not comply with chapter 207, Laws of 1920, and with chapter 176, Laws of 1914, and chapter 277, Laws of 1920. '

It was first objected that the order of. the board authorizing the issue of the bonds provided that five hundred dollars of said bonds is to mature each year from the year 1923 to the year 1932, inclusive, and one thousand dollars to mature each year from 1933 to 1942, inclusive, which is in direct conflict with chapter 207, Laws of 1920.

It is further objected that the board of supervisors in their order defining the boundaries of said district included in said road district all of sections 13 and 14, when in truth and in fact the north half of sections 13 and 14 were in the state of Tennessee, and that the said order of the board left out of the said district any and all parts of section 18 which lie directly east of section 13 and directly west of the southwest quarter of section 17 and all of section 17 which is included in the said road district.

It was also objected that the election was irregularly held, and that persons who were not qualified electors of the district were permitted to vote for the road district, and that the qualified electors opposed to the district were prevented from voting in the said election who would have voted against it, and various irregularities were charged, charging that various named persons who signed the petition were not qualified electors in the district, and that the petition did not contain twenty per cent, of the qualified electors; that certain of the signers of the said petition did not reside in the territory; that certain other signers resided in the state of Tennessee. A number of persons who were charged to be entitled to participate in the election and who were rejected as electors were registered on the 31st day of March, 1922, and they are admitted to be qualified provided they were registered four months before the election, or provided that the provisions for four months did not apply to this election. It was alleged that twenty-four of the thirty-five signers of the petition were not qualified electors of the district, and that, eliminating these, there would not be twenty per cent, of the qualified electors of the district.

The board of supervisors answered the petition and denied generally most of the allegations of the objectors. But they admit in their answer that the order of the board of supervisors authorized and directed the issuance of bonds maturing five hundred dollars per year fob the first ten years, and one thousand dollars per year for the succeeding ten years, but say that the matter of maturities is simply a matter of detail and one that can be regulated by the board of supervisors by its order at any regular, special, or adjourned meeting if the maturities conform to the requirements of law.

“Further answering the objections, they admit that part of sections 13 and 14 lie in the state of Tennessee, but they aver that this is not material for the reason that only part of sections 13 and 14 lying within the state of Mississippi would be included in the road district, and the order attempting to include that part which lies in Tennessee is mere surplusage and does not at all affect the validity of the order. They admit that section.' 18 is left out but they aver that there is no law requiring them to take in any particular section or sections of land or requiring that the road district shall take any special or particular form, and the fact that section 18 is left out is immaterial and does not affect the validity of the bond issue.”

In so fár as the proceedings creating the district, as affecting all questions of fact involved in the creation of the district (see the cases of Liddell v. Noxapater, 129 Miss. 513, 92 So. 631; Dye v. Sardis, 119 Miss. 359; 80 So. 761; Johnson v. Yazoo County, 113 Miss. 435, 74 So. 321; Wolford v. Williams, 110 Miss. 637, 70 So. 823; Hinton v. Perry County, 84 Miss. 536, 36 So. 565), it is settled that appeal is the only remedy where the jurisdictional facts authorizing the creation of a district or municipality were recited in the record, and that such orders cannot be collaterally attacked in a suit to contest the validity of the bonds issued by such district. It is said here that this rule does not apply because the petition does not recite the jurisdictional facts, and that consequently the board of supervisors did not have jurisdiction to make the order in which the jurisdictional facts are recited.

We do not think this distinction is well taken. The cases refer to the record, and, where the jurisdictional facts are recited in the record creating the district, the only method of contesting is by appeal. The record is based on the petition and the orders of the board of supervisors made thereon. The statute requires in the present case twenty per cent, of the qualified electors of the district to petition therefor. It does not require the petition itself to state as a fact that the signers do constitute twenty per cent., of the qualified electors. It wbuld no doubt be better form for the petition to state directly and affirmatively that the signers constitute twenty per cent, of the qualified electors’ living in said district, but the essential thing under the statute is that the petition shall be in tact signed by twenty per cent, of the qualified electors, and it is the duty of the board of supervisors to determine for itself whether, as a matter of fact, the signers constitute twenty per cent, of the qualified electors. The statement in the petition, if it were contained therein, that they constituted twenty per cent., would not bind the board, but they would proceed to determine from proper sources and evidence whether in fact they constituted the required percentage. The petition and the order of the board together must be considered, and, the board having jurisdiction to determine this fact, and having recited in their order the facts to exist, the order is conclusive on collateral attack.

However, the district as created must conform to law and they have no jurisdiction to go beyond the confines of the county in creating road districts, and especially they have no jurisdiction to go beyond the limits of the state in creating a district. The district created must stand or fall upon its validity as created, and it is not within the power of the court to change the boundaries of the district as created by the board of supervisors to make them conform to law or to the territorial jurisdiction of the board. Inasmuch as the district as created went beyond the limits of the state of Mississippi and included territory in the state of Tennessee over which the state of Mississippi has no sort of jurisdiction, it cannot be upheld. The recital of the board does not exclude any idea that the petitioners and voters within the territory of the state of Tennessee included in the district did not sign the petition or vote for or against the measure. It is unnecessary for us to decide in this case whether or not leaving out section 18 or that part of it lying within the state of Mississippi would avoid the validity of the district. The drawing of the maps of the territory embraced in the order will show that the district is irregular in shape, that the west half of that part of section 17 lying in the state was incorporated in the district and that all of section 13 lying west of it was incorporated in the district, and all of section 19 lying south wras incorporated in the district, and that the north part of section 18 lies in the state of Tennessee. ' Thus the south half of section 18 is entirely cut off from the rest of the county, and none of the funds could be spent in that territory.

It is somewhat analogous to the stock law districts, provided by law which were construed by the court in the cases of Gore v. Doolittle, 77 Miss, 620, 27 So. 997, and Garner v. Webster County, 79 Miss. 565, 31 So. 210.

While we do not decide this proposition, we think it proper to call the attention of the public to these cases, because, if the board of supervisors has power to create road districts by the methods that were condemned in the stock law districts, much confusion and serious results Will follow.

■ The board having exceeded its territorial jurisdiction in the present case, its order is void, and the court has no power to change or alter a district, and thus create one contrary to ivhat was petitioned for or what the board created.

The judgment of the court below will be reversed, and judgment entered here declaring the bonds invalid.

Reversed and rendered.