Opinion
No. 28437.
February 24, 1930.
1. SCHOOLS AND SCHOOL DISTRICTS. School board, in creating consolidated school district, cannot include territory therein other than that set forth in petition ( Hemingway's Code 1927, section 8735).
Although Laws 1924, chapter 283, section 100 (Hemingway's Code 1927, section 8735), does not specifically require territory of proposed district to be set forth in petition, it does so require by necessary implication, and school board is without power, in creating consolidated school district, to include territory therein other than that set forth in petition therefor.
2. CERTIORARI. Court could set aside order for issuance of school bonds for error apparent on record but not specifically assigned in petition for writ of certiorari ( Hemingway's Code 1927, section 8735).
Court was not precluded from setting aside order for issuance of school bonds for error apparent on record, in that school board in creating consolidated school district under Laws 1924, chapter 283, section 100 (Hemingway's Code 1927, section 8735), included territory not set forth in petition, because such error was not specifically assigned in petition on which writ of certiorari was issued.
3. CERTIORARI. Court on certiorari will notice substantial error, although not made subject of objection or exception, where it is apparent inferior tribunal exceeds jurisdiction.
When it is necessary to furtherance of justice, court, in cases brought to it on writ of certiorari, will notice substantial error although it is not made subject of objection or exception, as where it is apparent that inferior tribunal exceeds its jurisdiction, since there can be no difference in this respect between practice in inferior courts and that in the supreme court, and under Supreme Court Rule 6, supreme court, may, and in some cases should, notice plain error not assigned or distinctly specified.
APPEAL from circuit court of Calhoun county. HON. T.E. PEGRAM, Judge.
Haman McCraine, of Houston, for appellant.
The description of land in Chickasaw Cession by government subdivisions in itself states and defines the boundaries of the land so referred to.
Such reference defines the boundaries of the land in its very designation by the official description of the boundaries thereof. The very description shows its boundaries and determines whether it is contiguous territory or not.
Creekmore Creekmore, of Jackson, for appellant.
It is not necessary that the jurisdictional facts be set out in the petition for a separate school district.
Hemingway's Code 1927, sec. 8735.
The land in the school district was sufficiently described as provided by law.
Where there is an ambiguity in the description, the description which will sustain the validity of the instrument should be the one accepted and the ambiguous description should be rejected.
Boundaries, 9 C.J., sec. 32; Haley v. Amestoy, 44 Cal. 132; Richardson v. Curtiss, 33 Ohio, St. 359; Doyle v. Mellen, 15 R.I. 523; 8 A. 709.
A boundary need not be designated by lines or metes and bounds.
9 C.J., p. 152.
A section or subdivision of a section is itself a boundary.
Sayers v. Lyons, 10 Iowa 249; Cote v. Thayer, 3 Me. 71; Flagg v. Thurston, 13 Pick. (Mass.) 145; Matheny v. Allen, 63 W. Va. 443, 60 S.E. 406; Brown v. Hardin, 21 Ark. 324; Trinwith v. Smith, 42 Or. 239, 70 P. 816; Newman v. Foster, 4 Miss. 383; Terry v. Berry, 13 Nev. 514; Cherry v. Slade, 7 N.E. 82; Hammond v. George, 116 Ga. 792, 43 S.E. 53; Potts v. Canton Cotton Co., 70 Miss. 462, 12 So. 147; Bartlett Land Co. v. Saunders, 103 U.S. 316; Wilson v. Indoes, 6 Gill 121 (Md.); Platt v. Bente, 49 N.J.L. 679, 10 A.M. 283; Page v. Whatly, 162 Ala. 473, 50 So. 116.
The board of supervisors could add territory to a consolidated school district where it was described only by sections, townships and range.
James et al. v. Board of Supervisors, 117 So. 111 (Miss.); Bullock et al. v. Sanford Consolidated School District, 121 So. 267.
J.H. Ford, of Houston, and W.J. Evans, of Calhoun City, for appellees.
The statute requires that the school board do three things: to determine and describe the boundaries thereof and to name the sections and parts of sections composing the district, and to designate the location of the school house.
Board of Supervisors of Marshall County v. Brown, 146 Miss. 56, 111 So. 831; Yeager v. Merritt, 153 Miss. 64, 120 So. 832.
Section 8735, Hemingway's Code, governs the formation of consolidated school districts.
The petition must certainly set forth the jurisdictional facts.
Bryant v. Board of Supervisors of Yalobusha County, 133 Miss. 714, 98 So. 148.
The order of the school board attempting to establish this district is manifestly void.
Upon the filing of the proper petition and bond, and the issuance and service of the writ of certiorari removing the proceedings to the circuit court for review, all proceedings thereon by the board of supervisors were thereby superseded.
Ferguson v. Seward, 146 Miss. 613, 111 So. 596.
The record of the board of supervisors on which they purpose to issue bonds of the Lucknuc consolidated school district was brought to the court below by means of a writ of certiorari, and it was there held that the order for issuance of the bonds was void.
Several questions are presented by the record, but it will only be necessary for us to determine one of them.
A petition was filed with the county school board, praying for the formation of the consolidated school district, setting forth the territory to be embraced therein, and that it was signed by a majority of the patrons thereof. The school board, in attempting to create the district pursuant to this petition, included in it more territory than that set forth in the petition. This additional territory, according to counsel for the appellee, included more than sixteen hundred acres, and counsel for the appellant admits that it includes one hundred and sixty acres.
The contentions of counsel for the appellant in this connection are: First, that it was unnecessary for the petition to set forth the territory proposed to be included in the district; and, second, that the petition on which the writ of certiorari was granted did not assign this fact for error. Section 100, chapter 283, Laws of 1924, Hemingway's 1927 Code, section 8735, provides that: "The county school board at any regular or at a special meeting called for that purpose, on petition of a majority of the patrons of a proposed consolidated school district may form a consolidated school district and it shall be the duty of the board to determine and to describe the boundaries thereof and to name the sections and parts of the sections composing the district and to designate the location of the schoolhouse."
While this statute does not specifically require the territory of the proposed district to be set forth in the petition, it does so require by necessary implication; and therefore a school board is without power in creating a consolidated school district to include territory therein other than that set forth in the petition therefor. Bryant v. Board of Supervisors Yalobusha Co., 133 Miss. 714, 98 So. 148.
It is true that the petition on which the writ of certiorari was issued does not assign the inclusion of this territory in the order of the board creating the district for error. It may be — but as to this we express no opinion — that the court below was not required to notice an error in the order not specified in the petition for the writ of certiorari, in which connection see Eaton v. Hattiesburg, 151 Miss. 211, 117 So. 534; Merrill Engineering Co. v. Bolton (Miss.), 119 So. 354; but it was not precluded from setting aside the order for any error apparent on the record, though not specifically assigned.
"When it is necessary to the furtherance of justice, the court (in a case brought to it on a writ of certiorari) will notice substantial error, although it is not made the subject of objection or exception, as where it is apparent that the inferior tribunal . . . exceeds its jurisdiction." 11 C.J. 194.
There can be no difference in this respect between the practice in inferior courts and that in the supreme court, and it is well settled that the supreme court may, and in some cases should, "notice a plain error not assigned or distinctly specified." Rule No. 6 of that court, which appears in 104 Miss. 904; Griffith's Mississippi Chancery Practice, section 678; Pease v. Somers, 130 Miss. 147, 93 So. 673; Gabbert v. Wallace, 66 Miss. 618, 5 So. 394; Burke v. Shaw, 59 Miss. 443, 42 Am. Rep. 370; Vaughn v. Hudson, 59 Miss. 421.
The error in the order of the board of supervisors on which it proposes to issue bonds is so fundamental that, had the court below approved it, serious complications might hereafter arise.
Affirmed.