Opinion
No. 34380.
November 11, 1940.
1. SCHOOLS AND SCHOOL DISTRICTS.
Under a statute authorizing board of supervisors, on petition of majority of qualified electors in a consolidated school district, to issue bonds of district for specified purposes, a petition, which after naming certain of such purposes concluded with the term "et cetera," should not have been granted by the board, as such petition did not show with certainty the purpose for which the bonds were to be issued in that it failed to disclose that such purpose was definitely within the statutory authority, the term "et cetera," when following things particularly named, meaning and other things of like kind or purpose as compared with those immediately theretofore mentioned (Code 1930, sec. 6643).
2. SCHOOLS AND SCHOOL DISTRICTS.
Proceedings for the issuance of bonds of a consolidated school district on petition by electors, as authorized by statute, must show on their face the purpose for which such bonds are to be issued with such certainty as will distinctly disclose that their issuance will be definitely within the statutory authority (Code 1930, sec. 6643).
ETHRIDGE, J., dissenting.
APPEAL from the circuit court of Winston county; HON. JOHN F. ALLEN, Judge.
W.A. Strong, Jr., of Louisville, for appellants.
Orders of the Board of Supervisors authorizing a bond issue must definitely express the purposes for said issue and be free from ambiguity.
Bd. of Sup'rs. of Forrest County v. Clark, 163 Miss. 120, 140 So. 733.
The petition of the qualified electors for a bond issue must definitely express the purposes for said issue and be free from ambiguity.
Bd. of Sup'rs. of Forrest County v. Clark, 163 Miss. 120, 140 So. 733.
Appellants respectfully submit that by using the abbreviation, "etc.", in the petition filed with the Board of Supervisors and the Board using the abbreviation, "etc.", in its order designating the purposes of said bond issue, a purpose not authorized by law was designated, thereby rendering said proposed bond issue illegal.
The abbreviation, "etc.", means, "and other things; and so forth, and others of the like kind; and so on."
Webster's Twentieth Century Dictionary, p. 585; Shuler v. Dutton, 75 Iowa 155, 39 N.W. 239; Ingram v. Sherwood, 75 Ark. 176, 87 S.W. 435; Muir v. Kay, 66 Utah 550, 254 P. 901; Stansberry v. First M.E. Church, 79 Or. 155, 154 P. 887; L. N.R.R. Co. v. Berry, 96 Ky. 604, 29 S.W. 449; Lodwick Lbr. Co. v. Taylor, 39 Tex. Civ. App. 302, 87 S.W. 358; Gallop v. Elizabeth City Mill. Co., 178 N.C. 1, 100 S.E. 130; Wagner v. Brady, 130 Tenn. 554, 171 S.W. 1179; Bardstown L.R. Co. v. Metcalfe, 4 Met. (Ky.), 199, 81 Am. Dec. 541; L. N.R.R. Co. v. Sewell, 142 Ky. 171, 134 S.W. 162; Doty v. Am. Tel. Tel. Co., 123 Tenn. 329, 130 S.E. 1053, Ann. Cas., 1912C, 167; Tefft v. Tellinghast, 7 R.I. 434; Gover v. Davis, 29 Beav. 22, 54 Eng. Reprint 612; Twining v. Powell, 2 Colly Ch. Cas. 262, 63 Eng. Reprint 726; Kendall v. Kendall, 4 Russ. Ch. 360, 38 Eng. Reprint 841.
In all bond issues the purposes for same should be free from ambiguity. The proceedings should clearly show such purposes upon their face, and show with certainty that their issuance will be wholly within the statutory power.
Bd. of Sup'rs of Forrest County v. Clark, 163 Miss. 120, 140 So. 733.
E.M. Livingston and Chas. D. Fair, both of Louisville, for appellee.
Appellants contend that the petition filed by the qualified electors of the district asking for the issuance of the bonds and the orders of the Board of Supervisors with reference thereto are void because they do not sufficiently designate the purposes for which the funds are to be spent.
The statute, Sec. 6643, Code 1930, provides that the bonds may be issued to erect, repair and equip school buildings, teachers home, school barn, transportation vehicles and for purchasing lands for schools. The petition does not recite all of the things for which bonds may be issued, but prays that the bonds be issued "to erect, repair and equip school building, teachers home, etc." Appellants contend that the orders are void because all of the purposes for which bonds can be issued were not incorporated in the petition, or because only part of the purposes were incorporated in the petition, and the abbreviation, "etc.", was inserted following those things set out in the petition. We respectfully submit that this contention is without merit.
Counsel for appellant relies largely upon the case of Board of Supervisors of Forrest County v. Clark, 140 So. 733. We submit that the case is not in point and is certainly not controlling in this case. The petition in that case prayed for the issuance of bonds for the purpose of rebuilding, remodelling, and repairing the present school building and teachers' home; which provisions are contained in the statute, but this petition went further and requested the Board to issue bonds for the purpose of equipping said school building and furnishing same with all necessary school supplies. The statute contains no provision whatsoever for the issuance of bonds to furnish a school building with all necessary supplies. The judgment of the lower court was affirmed in that case because the petition and orders there expressly provided for the issuance of bonds for a purpose not authorized by statute.
There is nothing in the petition and order of the Board of Supervisors in this cause asking for the issuance of bonds for an illegal purpose, nor is there anything in the petition which might have had a tendency to mislead those who signed the petition.
We submit that this case turns on the accepted meaning of "etc."
When the generally accepted meaning of "etc." is applied, we are driven to the conclusion that it would include the other things mentioned in the statute and which were not set out in the petition and order. It could mean nothing more than that.
Webster's Twentieth Century Dictionary, p. 585; Fleck v. Harmstad et al., 77 A.L.R. 874; Lathers v. Keogh (N.Y.), 39 Hun. 576, 579; Whitmore v. Bowman (Iowa), 4 G. Green 148, 149; State v. Wallichs, 12 Nebr. 407, 11 N.W. 860, 861; Tefft v. Tillinghast, 7 R.I. 434, 436; Bagley v. Rose Hill Sugar Co., 111 La. 249, 35 So. 539, 548; Doty v. Am. T. T. Co., 123 Tenn. 329, 130 S.W. 1053, Ann. Cas., 1912C, 167; L. N.R. Co. v. Sewell, 142 Ky. 171, 134 S.W. 162, 164; State ex rel. Haw v. Three States Lbr. Co., 274 Mo. 361, 202 S.W. 1083; Osterberg v. Section 30 Development Co., 160 Minn. 487, 200 N.W. 738; Naylor v. McColloch, 54 Or. 305, 103 P. 68; Myers v. Dunn, 49 Conn. 71; Stansbery v. First M.E. Church, 79 Or. 155, 154 P. 887; Dano v. Miss. O. R. River R. Co., 27 Ark. 564; Bryan v. Bates, 15 Ill. 87; Dickerson v. Stoll, 24 N.J. 550; State v. Hackett, 5 La. Ann. 91; State v. Arnold, 140 Ind. 628, 38 N.E. 820; O'Connor v. N.Y., 178 App. Div. 550, 165 N.Y. Supp. 625, 224 N.Y. 644, 121 N.E. 881.
We respectfully submit that in view of the numerous authorities above cited the overwhelming meaning of "etc." simply includes those things embraced in the statute which were not copied in the petition and decree, and the use thereof could in no way affect the validity of the bonds here sought to be issued. There was nothing indefinite about the use of the abbreviation and nothing misleading about it.
Section 6643, Code 1930, in so far as material to the point now to be decided, reads as follows: "On petition of the majority of the qualified electors residing in a consolidated school district, the board of supervisors may issue bonds for such consolidated school district in the manner provided for by law, to erect, repair, and equip school buildings, teachers' homes, school barns, transportation vehicles, and for purchasing lands for schools; . . ."
A petition signed by the majority of the qualified electors residing in Ellison Ridge Consolidated School District was presented to the board of supervisors, reciting "that it is necessary to issue the bonds of the said district in an amount not to exceed $15,000.00 to erect, repair and equip school buildings, teachers' homes, etc., that the proposed bond issue" — and here follow further recitals not material to the present question.
Over the objections of other qualified electors of the district, the board ordered the bonds issued and the objectors appealed to the circuit court, and to this Court from an adverse judgment there.
The order of the board to issue the bonds is, in our opinion, invalid for other reasons than the one to be now dealt with, but the reason last mentioned lies at the threshold, making it unnecessary to pursue the others.
The quoted statute expressly states the purposes for which the bonds may be issued thereunder, and it contains no such language as to permit the indefinite construction that it would be available for purposes of like kind and character. It will be observed, however, that the petition contained the following language "to erect, repair, and equip school buildings, teachers' homes, etc." The three letters last quoted constitute an abbreviation of et cetera, and according to the great weight of authoritative opinion, as cited by both sides, this term, when following things particularly named, means "and other things of like kind or purpose as compared with those immediately theretofore mentioned."
The petition requested, therefore, that the bonds be issued to erect, repair and equip school buildings, teachers' homes, and for other purposes of like kind and character, — from which it follows that the petition was broader than the statute, prayed for things which the statute did not embrace, and therefore falls within the principles announced in Board of Supervisors v. Clark, 163 Miss. 120, 140 So. 733.
The school district, while admitting that the abbreviation for et cetera should usually be construed as has been above set out, contends that, according to circumstances, the abbreviation may be entirely disregarded as surplusage, meaning nothing, or else that it should be taken as merely a condensed method of including the other purposes embraced in the statute but not recited in the petition, which in this case could be to include in the petition school barns, transportation vehicles, and for purchasing lands for schools; and it is the latter contention for which the district the more earnestly argues.
But the contentions made by the district comprise a concession that the term et cetera is subject to three different constructions or interpretations, and while it argues for one of these constructions as being the best, we are still left with the obvious difficulty that there is no way to tell how each signer of the petition understood it, or whether a majority of the qualified electors of the district understood it alike. For all we know or the board knew the majority of the qualified electors may have understood the petition according to the usual construction of the abbreviated term included therein and that it prayed not only for the erection, repair, and equipping of school buildings and teachers' homes but for all other things of like character and purpose, and that there would have been no majority on the petition except for that understanding. We may not arbitrarily assume that they understood it otherwise, or in any one of the three ways as against the others.
Thus it is that the salutary principle declared in the Clark case, supra, comes into decisive operation, namely, that in all bond issues of this nature the purposes for same shall be free from ambiguity; that the proceeding for their issuance must clearly show such purposes upon their face, and show it with such certainty as will distinctly disclose that their issuance will be definitely within the statutory authority.
Reversed and petition dismissed.
I am unable to agree with the majority opinion that the abbreviation "etc." renders void the petition and proceedings of the Board of Supervisors. The petition for the bond issue by the qualified electors of the Consolidated School District expressly states the purposes for which the bond issue was to be made, which recital does not include all of the items for which the statute permits bonds to be issued. The several purposes for which the bonds were to be issued, and which were named in the petition, were specific, and authorized by law; and consequently the bonds were authorized to be issued in response to the petition.
Conceding for the purposes of this decision that the term "etc." meant "and other like purposes," as used, it still would not render the petition and bond issue void; if the words, "for other like purposes," had been recited in the petition, it would have been a mere incidental reference to the purpose to erect, repair and equip school buildings and teachers' homes. To be usable, there is more required than the mere erection of a school building — there are other things necessary. The word "etc." could well be treated as surplusage, for if the petitioners prayed for more than the law allowed, as well as for things that the law did allow, it was within the power of the Board of Supervisors to allow the latter, and disallow the former, or surplusage. Because a person prays for more than is permissible, or for more than would be given, is no reason for denying the prayer altogether. It is familiar knowledge in Chancery Court practice that the suitor may be allowed such relief as he has prayed for, insofar as is allowable under the law, even though not allowed all he prayed for. Perhaps every Christian prays to the Holy Father for more than he should; but that does not mean that his prayer would be entirely disallowed merely because he had prayed for too much.
There is nothing in Board of Supervisors v. Clark, 163 Miss. 120, 140 So. 733, which prevents allowing what is permissible under the law. In that case both the petition, and the order of the Board allowing the same, embraced things which were not allowed by the statute — specific things not allowed to be embraced therein. To hold, as the majority opinion does, that the word "etc." prevents the Board and the school from securing the relief and realizing the purpose for which the petition was filed, is to thwart public policy and deny to the pupils of the Consolidated School District the means of education. That is carrying a technicality far beyond reason.
I have examined the record and briefs, and I think the case should be affirmed. The bill of exceptions is inaccurately drawn, and its recitals appear in certain particulars to contradict the solemn recitals of the judgment of the Board. But looking at the whole proceeding, and the bill of exceptions, I think it merely undertook to set forth the objections, and not to recite facts in opposition to the judgment. The recitals of fact in the objections and bill of exceptions are imperfect, but I think there is no fatal defect in the proceedings, when properly considered.