Opinion
No. 41375.
February 8, 1960.
1. Board of Supervisors — authority to change boundary line between supervisors' districts — order regular and valid on its face not subject to collateral attack.
As board of supervisors had statutory authority to make order, by unanimous vote, changing boundary line between supervisors' districts, its order so doing which was valid on its face, where minutes disclosed that order had been signed by all members of board, was not subject to collateral attack, and Chancery Court erred when it, on complaint of electors alleging that one supervisor had actually not been present when order was voted, enjoined action in changing boundary lines and when it subsequently overruled demurrers to amended bill of complaint filed on relation of district attorney, seeking to set aside the order.
Headnote as approved by McGehee, C.J.
APPEAL from the Chancery Court of Hancock County; WILLIAM G. HEWES, Chancellor.
Michael Haas, Bay St. Louis; Earle L. Wingo, Hattiesburg, for appellants.
I. The contested order was judicial in nature. Mobray v. School Board of Carroll County, 162 Miss. 632, 137 So. 105; Poyner v. Gilmore, 171 Miss. 859, 158 So. 922; Secs. 1573, 2870, Code 1942.
II. The bill is an attempt to collaterally attack an order of the Board of Supervisors. Sec. 1195, Code 1942.
III. The order is regular and valid upon its face and there are no specific charges of fraud. Hinton v. Board of Suprs. of Perry County, 84 Miss. 536, 35 So. 565; Johnson v. Yazoo, 113 Miss. 435, 74 So. 321; Simpson County v. Buckley, 81 Miss. 481, 33 So. 650; Secs. 1195, 2870, Code 1942.
IV. In the absence of specific charges of fraud or charges that the order is void on its face, the order is not subject to collateral attack. Levi Beaman v. Board of Police of Leake County, 42 Miss. 237; Re Magee Consolidated School Dist. Bonds, 212 Miss. 454, 54 So.2d 664.
V. Only the body or court who makes the rule or order can correct it and oral proof is inadmissible to contradict, alter or change minutes of the Board of Supervisors which are regular upon their face. Brown v. Sutton, 158 Miss. 78, 121 So. 835; Entrekin v. Tide Water Associated Oil Co., 203 Miss. 767, 35 So.2d 305; National Box Co. v. Bradley, 171 Miss. 15, 157 So. 91; Waldrop v. Whittington, 213 Miss. 567, 57 So.2d 298.
Buntin Martin, Gulfport, for appellees.
I. The matter involves an attempted change by the Board of Supervisors of Hancock County, of a division line between two supervisors' districts, in a manner in direct conflict with our statutes. The actions of the lower court, from which appellants appealed, should be sustained and the cause remanded to the lower court for further action.
(Hn 1) On November 24, 1951, the Board of Supervisors of Hancock County changed the boundary line between supervisors' districts numbers 4 and 5 in said county. In September 1952 numerous qualified electors filed their original bill of complaint in their own names asking that the order of the board of supervisors changing the boundary line between the said supervisors' districts be set aside, and that the complainants be awarded $20,000 in actual damages and $20,000 in punitive damages against the individual members of the board of supervisors and the sureties on their official bonds. There was no allegations in the bill of complaint as to how or why the changing of the boundary line between the two supervisors' districts had caused the alleged damages to the complainants, as sued for. Later an amended bill was filed on the relation of the District Attorney merely to set aside the order complained of. The chancery court overruled the demurrers to the amended bill of complaint on the ground that, among other things, there was in fact equity stated on the face of the bill of complaint. And among the other grounds upon which the complainants sought to have the action of the board of supervisors set aside and held for naught was that one of the members of the board of supervisors, Joseph C. Jones, was not present and did not vote for the order at the time the same was voted for by the other members of the board, and it was pointed out that the board of supervisors is authorized to change the boundary line between supervisors' districts only by a unanimous vote of the members of the board. However, the order was valid on its face and the minutes disclosed that Mr. Jones had signed the order as well as the other members of the board. It was urged by the defendants that the order being regular and valid on its face was not subject to collateral attack. The chancellor overruled the demurrers to the bill of complaint and denied an interlocutory appeal to this Court from such action, but an interlocutory appeal was later granted by a member of this Court from the action of the chancellor overruling the demurrer.
It appears that the former chancellor of the district had granted an injunction to the complainants, and that the same has never been dissolved. The action of the board of supervisors in changing the boundary line between the two supervisors' districts should not have been enjoined, since the board had statutory authority for taking such action by a unanimous vote of its members.
The demurrers to the amended bill of complaint should have been sustained instead of being overruled, and the injunction should have been dissolved. The cause must therefore be reversed, the injunction dissolved, the several individuals for whom the suit was brought by the District Attorney should be assessed with the costs, and the cause remanded for further proceedings, if desired, not insconsistent with this opinion.
Reversed, injunction dissolved, and cause remanded.
All justices concur.