Opinion
No. 37462.
November 14, 1949.
1. Administrative law — county school board — creation of consolidated school district — jurisdictional facts — adjudication of.
The statutes on the subject require of a county school board, as a mandatory duty, that in creating a consolidated school district, their order show their own affirmative finding of the fact that the district contained an area of not less than ten square miles, and it is not enough that by the description of the boundaries of the district, as contained in the order, others by calculation could find that in fact the district did contain the required area.
2. Administrative law — county school boards — creation of consolidated school district — minutes — what must be shown by.
In the creation of a consolidated school district the county school board can act, as to jurisdictional requirements, only by entries on its minutes, and the minutes must show (1) the description of the boundaries of the district as well as the sections or parts of sections composing it and (2) an affirmative adjudication by the board itself that ten or more square miles are included within the district, and the doing of one will not excuse the omission of the other.
3. Administrative law — school boards — duty to follow governing statute — consequence of failure to do so.
It is the duty of the school boards to follow and be governed by the statute under which they propose to exercise authority and when in essential particulars they fail to do so their attempted action will be declared void.
Headnotes as approved by Smith, J.
APPEAL from the chancery court of Lawrence County; J.N. PATTERSON, Chancellor.
Cassedy Cox, for appellants.
A. The order of the school board which is void on its face is subject to a collateral attack.
(1) Sections 6274, 6295, Code 1942; Leech, et al. v. Wileman, et al., 179 Miss. 836, 177 So. 12; Green, Sheriff, etc. v. Sparks, 174 Miss. 71, 162 So. 895; Gilbert, et al. v. Scarbough, 159 Miss. 679, 131 So. 876; Belton Consolidated School District, et al. v. Lee County, et al, 160 Miss. 157, 133 So. 225.
(2) Section 6374, Code 1942; Board of Supervisors of Marshall County v. Brown, et al., 146 Miss. 56, Ill. So. 831; Stone, et al. v. Pine Valley Consolidated District, 161 Miss. 537, 137 So. 332; Parnell, et al. v. Trustees of Orange Lake Consolidated School District, 157 Miss. 276, 127 So. 280; Board of Supervisors v. Stephenson, et al., 160 Miss. 372, 134 So. 142.
B. Under the order of the County School Board in organizing the Topeka-Tilton Consolidated School District, the appellants will suffer real and irreparable injury, unless the prayer of their bill of complaint is granted.
C. There existed no adequate remedy at law. Cumberland T. T. Co. v. State, 135 Miss. 835, 101 So. 378; Board of Supervisors of Forrest County v. Melton, 123 Miss. 615, 86 So. 369; Board of Supervisors of Marshall County v. Stephenson, 130 So. 684; Mabry v. School Board of Carroll County, 162 Miss. 632, 137 So. 105; Griffith's Mississippi Chancery Practice, Secs. 434, 436. Hall Callender, for appellees.
The bill of complaint showed on its face that the consolidation order was legal and valid, and complainants were therefore entitled to no relief. Section 6274, Code 1942.
The minutes of the school board affirmatively showed that Topeka-Tilton Consolidated School District contained an area of not less than ten square miles. Sections 6274, 6295, Code 1942; Leech et al. v. Wileman et al., 179 Miss. 836, 177 So. 12; Green v. Sparks, 174 Miss. 71, 163 Co. 895; Gilbert et al. v. Scarbough et al., 159 Miss. 679, 131 So. 876; Belton Consolidated School District v. Lee County, 160 Miss. 157, 133 So. 225; Martin et al. v. Board of Supervisors of Winston County, 181 Miss. 363, 178 So. 320; Pettibone v. Wells et al., 181 Miss. 425, 179 So. 336.
The consolidation order properly designated the location for the school building. Sellier v. Dedeaux et al., 134 Miss. 589, 99 So. 439; Peets et al. v. Martin, 135 Miss. 720, 101 So. 78; Parnell v. Trustees of Orange Lake Consolidated School District, 157 Miss. 276, 127 So. 280; Board of Supervisors v. Stephenson, 160 Miss. 372, 134 So. 142; Board of Supervisors v. Brown, 146 Miss. 56, 111 So. 831; Stone v. Pine Valley Consolidated School District, 161 Miss. 537, 137 So. 332.
The county school board had full jurisdiction and authority to adopt the consolidation order of April 2, 1949, notwithstanding the pendency of cause No. 9210. Peets v. Martin, 135 Miss. 720, 101 So. 78; Amite County School Board v. Reese, 143 Miss. 880, 108 So. 439.
The failure of the school board to include transportation authority in its consolidation order did not impair the validity of the order. Sections 6274 (b), 6295, Code 1942.
If the consolidation order is valid, then appellants were not entitled to injunctive relief. Section 6333, Code 1942. Cassedy Cox, in reply.
The failure of having an affirmative adjudication on the minutes that the proposed school district contained an area of not less than ten square miles, and the law as has been applied to school boards.
(A) Section 6295, Code 1942; Leech, et al. v. Wileman, et al., 179 Miss. 836, 177 So. 12; Green v. Sparks, 174 Miss. 71, 163 So. 895.
(B) Gilbert, et al. v. Scarbough, et al., 159 Miss. 679, 131 So. 876; Martin, et al. v. Board of Supervisors of Winston County, 181 Miss. 363, 178 So. 320; Belton Consolidated School District, et al. v. Lee County, et al., 160 Miss. 157, 133 So. 225; Boutwell, et al. v. Board of Supervisors of Jasper County, 128 Miss. 337, 91 So. 12.
Location of the school building. Board of Supervisors of Marshall County v. Stephenson, 160 Miss. 372, 134 So. 142.
This suit is an attack upon the validity of the organization of the Topeka-Tilton Consolidated School District in Lawrence County.
Among the grounds of the challenge is the charge that the order of the County School Board, attempting to establish the district, was invalid, because it did not adjudicate the proposed territory to be included therein contained an area of not less than ten square miles.
Section 6295, Code of 1942, classifies and defines five kinds of school districts, and declares that a consolidated district is: ". . . one that is formed by consolidating two or more districts or parts of districts or one district and one or more parts of districts and contains an area of not less than ten square miles and in which authority to transport pupils is granted."
Section 6274, subsection (b), Code 1942, provides that, upon completion of the necessary preliminary procedure set forth therein, that it shall be the duty of the school board ". . . to create such district and to determine and describe the boundaries thereof and to name the sections and parts of sections composing such district and to designate the location for a school building. . . ."
In the case at bar, the county school board, among other things, were required to create a district with an area of not less than ten square miles, and to determine and describe its boundaries and name the sections and parts of sections composing it.
However, the challenged order failed to adjudicate that the area was not less than ten square miles, but did adjudicate the boundaries and names of the sections composing the district. Appellants contend that the order is void for failure to perform the former alleged mandatory duty, while appellees contend that the adjudication which described the boundary and named the sections was an adjudication that the district contained not less than ten square miles, since it could be checked by anyone interested and determined that the territory within said boundaries and sections was an area of not less than ten square miles.
To the original bill of complaint filed by appellants, the appellees filed a general demurrer, that "There is no equity on the face of the bill." This demurrer was sustained by the court, appellants declined to plead further, their bill was dismissed, and they have appealed. This action of the chancellor is assigned as error.
This same issue has been squarely before us heretofore, and the same arguments were there made as are made in the case at bar, including the point that this proceeding is a collateral attack, and hence not maintainable. In the case of Green, Sheriff, etc. v. Sparks, 174 Miss. 71, 163 So. 895, 896, this Court said that "The rule that the proceedings of a county school board or a board of supervisors cannot be collaterally attacked is limited to such orders or proceedings as are valid on their face, and all such orders as are void on their face are subject to collateral attack", citing authorities. The right to maintain the suit there, which involved an injunction as here, was sustained by this Court because the order of the school board was void. On this point, we said: "Under the provisions of Section 6653, Code 1930, a special consolidated school district must contain not less than twenty-five square miles and not fewer than two hundred fifty pupils. The existence of these facts is necessary to authorize a school board to create a special consolidated school district, and an order of a school board creating such a district must affirmatively show these facts. In the order attempting to create the special district here involved, there is no finding of, or reference whatever to, these necessary facts, and for that reason also the order is void."
But, appellees argue that the definition of the boundaries of the district and the sections named therein demonstrate, on calculation, that the proposed district did contain an area of not less than ten square miles. We have gotten the original record in the case of Green, Sheriff, supra, and it and the case at bar are identical on that issue. In the Green case, also, the boundary of the district was defined, and the sections thereof named, and it could easily have been calculated from such data that the district did contain an area of the necessary number of square miles, just exactly as in the instant case. Nevertheless, the Supreme Court declared the attempted organization of the district failed, because of the board's neglect to adjudicate this jurisdictional fact themselves, in the order attempting to create the district.
(Hn 1) It is one thing to have evidence of the existence of jurisdictional matter, and another thing entirely to adjudicate an affirmative holding on it, required by law, to be done before such order can be valid. This legislation contemplates this as a mandatory duty of the school board, and requires that their order show their own affirmative finding of the fact that the district contained an area of not less than ten square miles. It was not intended merely that others could find it out by any calculation for themselves.
In another failure to validly organize a consolidated school district, we pointed out that (Hn 2) a county school board can only act and speak, with respect to certain particulars, relating to an attempted organization of a consolidated school district, by the entry on its minutes; that under statutes, in organizing a consolidated school district, the county school board must enter on its minutes the description of boundaries of the proposed district as well as the names of sections or parts of sections composing the district; and that the jurisdiction of county school boards to organize a consolidated school district also requires that the order of board affirmatively and expressly adjudicate that ten or more square miles are included within the district. Leech et al. v. Wileman et al., 179 Miss. 836, 177 So. 12, 15. It will be seen therefore that we have already held against the contentions of appellees on the issue under discussion, in the foregoing two decisions of this Court. In the immediately preceding citation, we specifically held that the board must define the boundaries of the proposed district and also name the sections and parts of sections. Therefore, the doing of the one will not excuse the omission of the other, on the doctrine "that is certain which can be made certain", as announced in the opinion there.
(Hn 3) In the Leech case, supra, it was also stated in the opinion of this Court: "We conclude this opinion with the statement that county school boards which desire to advance the educational interests of their counties by the creation of these districts, as well as all other such creating bodies organizing districts which shall be subject to taxation, would do well to consider the controlling statute which empowers them so to do; be governed thereby, and at least undertake to follow the plain provisions of the statute in establishing such districts. The cases cited, supra, demonstrate the necessity for the school boards to be governed by the statute under which they propose to exercise authority, and to see that the essentials are set forth on their minutes. It is with reluctance that this court is compelled in this, as well as in other cases, to declare the organization of such districts void, but we have no alternative, and, so long as the provisions of the empowering statutes are ignored, just so long will confusion continue . . ."
As previously indicated, in an earlier part of this opinion, the order of the school board is also attacked for other alleged causes, but it is not necessary for us to pass on them, and we do not; since we have reached the conclusion that the order of the school board, attempting to establish the district, is void for failure affirmatively to adjudicate that it contains an area of not less than ten square miles, and that such adjudication is necessary, mandatory and jurisdictional.
Because of our views herein, we must and do reverse the decree of the chancery court, and enter a decree here for appellants.
Reversed and decree here for appellants.
Hall, J., took no part in this decision.