Opinion
No. 27509.
December 3, 1928.
SCHOOLS AND SCHOOL DISTRICTS. Consolidated district bond election held at private office was void, though only schoolhouse in district was for temporary use ( Hemingway's Code 1927, section 8741).
Where election on bond issue for consolidated school district was held at a private office rather than in the schoolhouse, as required by Hemingway's Code 1927, section 8741 (Laws 1924, chapter 283), the election was void, though only schoolhouse in district at time of election was merely improvised for temporary use.
APPEAL from circuit court of De Soto county, HON. GREEK L. RICE, Judge.
Logan Barbee, for appellant.
Appellants contend that there is and was on the day of the election complained of a "schoolhouse of the district" and that the election complained of should have been held in said schoolhouse. Barrett et al. v. Cedar Hill Consolidated School District, 85 So. 125; Board of Supervisors of Stone County v. O'Neal, 93 So. 483; Monroe County, to use of Splunge Consolidated School District, v. Minga et al., 90 So. 443.
Appellees admit by the evidence of the trustees that the district was created several months prior to the election complained of and that the school was being taught at the time of the election in a building on the site or plot of ground originally designated by the trustees of the school board and in a building in which the school had been taught prior to the burning of the new school building, but they contend that because the said district did not own the building at the time of the election it was not the "schoolhouse of the district."
We respectfully insist that it was the "schoolhouse of the district." And it made no difference whether the district had the fee-simple title to the house and land on which it stood for the purpose of teaching the school, it belonged to the district until the building then under construction was completed. Carter v. Board of Supervisors of Chickasaw County, 95 So. 306.
Was there, legally, a schoolhouse of the Lake Cormorant consolidated school district?
There are not cases in Mississippi decisive of this question, it is really a question of fact whether there was a schoolhouse of the district where the election should have been held. Our contention is that the decision of the trustees of the district, acting in good faith, and designating the place where the election should be held, is final, unless it is clearly shown, and there is no room for doubt, that there was a schoolhouse of the consolidated school district. Our further contention is that the board of supervisors, who ordered the election, and the election commissioner, who gave notice of the election, necessarily found that there was no schoolhouse of the district. And that the election commissioners who certified the returns of the election, and the board of supervisors who accepted the returns, again necessarily found that there was no schoolhouse of the district.
Had the election notice merely stated that the election would be held at the schoolhouse of the district; then appellant could, in all good faith, have contended that there was no schoolhouse of the district, that the schoolhouse which belonged to the district had burned, and that a new schoolhouse was now in the process of construction, and that the place where school was being temporarily taught at the time of election was not even owned by the school district, or the county.
Appellants cite Carter v. Board of Supervisors, 95 So. 306. In that case there was no schoolhouse of the consolidated school district. An election had been called to vote on a bond issue for the district, and the trustees of the district had designated the Van Vleet rural schoolhouse for the place of holding the election. Before the election was held the Van Vleet rural schoolhouse was burned and school was being taught at another house. The election was held however at the place where the school was being taught and the court said: "Whether legally or not, it is certainly the de facto Van Vleet schoolhouse." The facts in that case have no application to this case. It might be said that the place where school was being temporarily taught at the time of the election complained of, was the school of the district, but it could not be said that it was the schoolhouse, or even the de facto schoolhouse of the district.
Argued orally by R.F.B. Logan, for appellant, and Paul Bowdre, for appellee.
This appeal involves the legality of an election on a bond issue in the Lake Cormorant consolidated school district. A new school building had been erected, but was destroyed by fire after it had been occupied for only a few months. It was partially covered by insurance. The term of school then being conducted was resumed and finished in an old school building near by, formerly owned and used as the schoolhouse of the district. The school board changed the location of the school to a different site, the trustees of the district exchanging the old site for the new. With the insurance money, the erection of another school building on the new site was begun. As additional funds for the completion of the schoolhouse were needed, a bond issue of fifteen thousand dollars was submitted to a vote of the qualified electors of the district. At the time of the election, school was still being conducted in the old schoolhouse, and the people generally knew this to be a fact. The title to the old schoolhouse was in private individuals, who permitted it to be used free of rent.
The election on the bond issue was ordered to be held, and was held, at the private office of Dr. A.V. Richmond, in the town of Lake Cormorant. A majority voted for the issuance of the bonds, but upon certifying the election returns to the board the appellant appeared and protested against the issuance of the bonds, on the ground mainly that the election was not held at the schoolhouse then being used. The board decided against him, and an appeal was taken on bill of exceptions to the circuit court, which affirmed the order of the board of supervisors. From this judgment, the appeal comes here.
Should the election have been held at the schoolhouse then being used as such? Section 8741, Hemingway's 1927 Code (Laws 1924, chapter 283), provides: "In any case where it becomes necessary to hold an election affecting any question submitted to the qualified electors in any consolidated school district in this state, said election shall be held at the schoolhouse of said district, or, if there is no schoolhouse, the election shall be held at a convenient place designated by the trustees of the school except in case of a line consolidated school in the issuance of bonds. The commissioners holding such election shall have power and authority to use the poll books of such county or counties containing the names of the qualified electors who reside in said school district. Notice of such election and the place designated for holding same shall be given as provided in this act."
This statute has been construed by this court in Barrett et al. v. Cedar Hill Consolidated School, 123 Miss. 370, 85 So. 125, followed by Edwards v. Bolivar County, 124 Miss. 165, 87 So. 8, Boutwell v. Jasper County, 128 Miss. 337, 91 So. 12, Board of Sup'rs of Stone County v. O'Neal, 130 Miss. 57, 93 So. 483, and Carter v. Board of Supervisors, 131 Miss. 127, 95 So. 306. In all these cases, it was held that an election held under this statute, at a place other than the schoolhouse, was void.
It is earnestly contended, however, that there was no schoolhouse in the district at the time of the election; that the work on the building under construction was not sufficiently advanced for the election to be held there; and that the schoolhouse then in use was merely improvised for temporary use and could not be considered the schoolhouse, as contemplated by the statute. In the Carter case, supra, the legality of an election was challenged, because the election was held at another building, where school was being temporarily conducted; the schoolhouse of the district having been destroyed by fire. The election was upheld, the court saying in part: "Whether legally or not, it certainly was the de facto Van Vleet schoolhouse." The underlying reason for holding the election at the schoolhouse, a public place, is that the voter will be more inclined to attend the polls, exercise his choice, and use his influence for or against the measure, with more freedom and less restraint, than at a private place. Barrett et al. v. Cedar Hill Consolidated School District, supra. The building was the only schoolhouse then in use in the Lake Cormorant district, and it was generally known in the community as the schoolhouse. Because the election was not held there, we think the statute was violated, rendering the election void.
The judgment of the court below will be reversed and remanded.
Reversed and remanded.