Price v. Sims

77 So. 649, 116 Miss. 687

Opinion

Sykes, J.,

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Marion county, affirming a judgment of the board of supervisors of that county, which order of the board of supervisors denied a petition signed by forty resident taxpayers, asking that an election be ordered to decide whether or not bonds should be issued by a consolidated school district. An agreed statement of facts is contained in the record. It is shown by the record that one hundred and sixty resident taxpayer's of the Hub consolidated school district, containing more than sixteen square miles, petitioned the board of supervisors to issue bonds for said school district for the purpose of erecting and eguipping a school building, the amount of bonds being five thousand, five hundred dollars in denominations of one hundred dollars each, to be known as the “Hub consolidated district bonds;” to be numbered from one to fifty-five inclusive; to bear date of their issuance, and be payable five years from the date of issuance ; to bear interest at the rate of six per centum, payable semiannually, with interest payments being evidenced by coupons attached to the bonds; principal and interest being payable in lawful money of the United States. The petition was signed by one hundred and sixty resident taxpayers of the county, and was prepared under chapter 197, Acts of 1914, sections 1 and 2 thereof, which read as follows:

“Section 1. Be it enacted by the legislature of the state of Mississippi, that Senate Bill No. 79, chapter 159, of the acts of the legislature of 1912, be amended so as to read as follows:

“That the board of supervisors of any county be and the same is hereby authorized to issue bonds of the county, a supervisor’s district, or a school district containing not less than sixteen (16) square miles, excluding in each case the territory embraced within separate school districts, for the purpose of erecting, repairing and equipping school buildings for the county, a supervisor’s district, or a school district as the case may be.

“See. 2. Whenever a majority of the resident taxpayers of a county, of a supervisor’s district, or of a school district containing not less than sixteen (16) square miles shall petition the board of supervisors to issue bonds for the purposes hereinbefore stated the board of supervisors of such county shall issue bonds of the county, of a supervisor’s district or of a school district according to the direction of the petitioners, not to exceed five per centum (5 per cent) of the assessed value of the county, if it be for the county; or of the district if it be for a supervisor’s district, or of a school district if it be for a school district, said bonds to be issued in the manner provided in the chapter on municipalities. When a county, a supervisor’s district or school district shall become obligated through the sale of bonds as indicated herein, it shall be the duty of the board of supervisors to levy a tax annually on the taxable property of the county or supervisor’s district or school district as the ease may be, sufficient to pay the interest on said bonds and to create a sinking fund for their redemption.”

These sections are also found in Hemingway’s Code, sections 7356, 7357.

A petition asking that the board order an election upon the question of whether or not these bonds should be issued was then filed with the board of supervisors. Fourteen of the signers of this counter-petition had also signed the petition asking for the issuance of the bonds. The agreed statement of facts shows that the forty resident taxpayers who signed the counter-petition constituted more than twenty per centum of the adult resident taxpayers of the district. It is further shown that there were one hundred and ninety-six resident taxpayers in said .district. The board of supervisors in their order declining to call an election, held that these fourteen taxpayers who signed the counter-petition, and who had also signed the original petition asking for the issuance of the bonds, had no right, by the signing of the counter-petition, to take their names from the original petition. In this ruling the board committed error. This court has uniformly held that signers to a petition addressed to a board of supervisors or a municipality can take their names therefróm by signing a counter-petition. Subtracting these fourteen names from the one hundred and sixty taxpayers' who signed the petition leaves still upon the briginal petition one hundred and forty-six signers. There being only one hundred and ninety-six resident taxpayers in the school district, this then left upon the original petition many more than a majority of these taxpayers.

The question for decision, then, is whether or not section 2 of the act above quoted (section 7357, Hemingway’s Code) is a complete scheme in itself, providing when these bonds shall be issued by the board, or whether that part of'this section, which reads, “Said bonds to be issued in the manner provided in the chapter on municipalities,” merely refers to the details of the issuance of the bonds as set forth in section 3416, Code of 1906 (section 5975, Hemingway’s Code), or also refers to section 3419, Code of 1906 (section 5978, Hemingway’s Code), which provides, in short, that before the issuance of any municipal bonds, “the board shall publish notice of the proposal to issue the same in a newspaper . . . for three weeks next preceding; and if, within that time, twenty per centum of the adult taxpayers of the municipality shall petition against the issuance of the bonds, then the bonds shall not be issued, unless authorized by a majority of the electors voting in an election to be ordered for that purpose.” The issuance of these bonds by a municipality, referred to in section 3419, a part of which is above quoted, is dealing with the question where the mayor and board of aldermen of the municipality, on ‘ their own initiative, without any petition of the taxpayers to do so, issue these bonds. The taxpayers are not consulted in the first instance, nor have they any voice in passing upon the desirability of the issuance of the bonds. They are given the right to protest against the issuance, and if twenty per cent, so protest, then an election will be called. This scheme is quite different from the one under consideration. Chapter 197, Laws of 1914 (section 7356 et seq., Hemingway’s Code), provides a complete scheme for the issuance of the bonds, save that the details of the same are governed by section 3416, Code of 1906 (section 5975, Hemingway’s Code). The only manner provided in the act under discussion for the issuance of these bonds is upon the petition of a majority of the taxpayers. The resident taxpayers, by their petition, are given the right to say whether or not these bonds shall be issued, and when a majority of them so signify by the petition, and do not take their names from the petition by a counter-petition, then, under this act, it is mandatory upon the board of supervisors to issue the bonds. No notice by publication is required under this act before the issuance of the bonds; in fact there is no reason for any publication, because the resident taxpayers of the district have already expressed by petition their desire to have these bonds issued and the amount for which they are to be issued. The reason for the publication of the issuance of the bonds under section 3416 of the Code (sec. 5975, Hemingway’s Code) is to give the taxpayers the right to protest, if they so desire, they having had no voice in the first instance as to the desirability of the issuance of these bonds. This chapter 197, Acts of 1914 (section 7356 et seq., Hemingway’s Code), is an amendment to chapter 159, Acts of 1912. The material difference between the act of 1912 and the one under consideration is that in the act of 1912 it was left to the discretion of the board to issue these bonds after the petition of the majority of the resident taxpayers. The act of 1914, however, takes away the discretion of the board of supervisors, and now makes it mandatory upon the board to issue these bonds upon the petition of the requisite number of resident taxpayers. The lower court correctly held that the board of supervisors was in error in failing to take the fourteen names of the signers of the second petition, who also signed the first petition, from the first petition; and was also correct in holding that the said petition still contained a majority of the resident taxpayers of the school district, but that the order of the board was proper in denying the counter petition and failing to call an election. It follows that the judgment of the circuit court is affirmed.

Affirmed.