Brannan v. Board of Sup'rs , 141 Miss. 444 ( 1926 )

^* Corpus Juris-Cyc. References; Evidence, 23 C.J., p. 161, n. 79, New; Schools and School Districts, 35 Cyc., pp. 835, n. 95; 850, n. 94. The appellants appealed to the circuit court of De Soto county from an order of the board of supervisors (appellee) of that county, effecting the annexation of adjoining territory to the Horn Lake consolidated school district in said county. The appeal was taken under section 80, Code of 1906 (Hemingway's Code, section 60), which provides for an appeal for any person aggrieved by a judgment or decision of the board of supervisors, or the municipal authorities of a city, town, or village. The record in the case is therefore a bill of exceptions setting out the proceedings before appellee. The following is deemed a sufficient statement of the case to bring out the questions involved:

The bill of exceptions taken by appellants to the action of appellee has the following caption:

"Bill of exceptions of Brannan, Mr. Moreton, J.F. Lively, Mrs. C.T. Knight, and other taxpayers of said Poplar Corner school district, too numerous to mention."

Following the caption is a recital that the objections of appellants were presented to appellee at the latter's July meeting, 1924. Then follows a copy of appellants' objections, the caption to which recites that appellants were taxpayers of Poplar Corner school district, the territory sought to be annexed to the Horn Lake consolidated school district. Then follows in the bill of exceptions a copy of the order of the school board annexing to the Horn Lake consolidated school district certain territory specifically described in the order as constituting the Poplar Corner school district. Among other things, this order recites that a petition of the patrons of the Poplar Corner white school district to annex the territory of said district to the Horn Lake consolidated school district came on for hearing, and was examined by appellee, "and found that a majority of the patrons of the said school have signed said petition." There is an absence in the bill of exceptions of any recital that appellants introduced evidence, or offered to introduce evidence, that they would be taxed or otherwise affected by the consolidated of the two districts. The only evidence, if that be evidence, of appellants' being aggrieved by the consolidation, is the recital in the caption of the bill of exceptions and in the caption of appellants' objections to the consolidation made a part of the bill of exceptions, that appellants were taxpayers of the poplar Corner school district.

At the threshold of the consideration of the case, appellee raises the question of appellants' interest in the litigation. Appellee's position is that appellants failed to show, in fact did not offer evidence to show, that they were interested taxpayers, whose interest would be affected by the consolidation of the two school districts; that, having shown no interest, they are therefore strangers to the litigation, and have no right to complain at the order of appellee adding the territory of the Poplar Corner school district to that of the Horn Lake consolidated school district. Authorities are cited by appellee to sustain that proposition. The principle of law relied on is well established. The courts will not entertain the contentions of a litigant who has no interest in the result of the suit. The question is whether the bill of exceptions in this case sufficiently shows that appellants are interested in the questions involved. We think the record in the case does so show. It is recited in the bill of exceptions that appellants, naming them, were taxpayers of the Poplar Corner school district. It is true that this recital is in the caption of the bill of exceptions; nevertheless it is a statement of fact. We are of opinion that, unless controverted, it did not devolve upon appellants to prove that they were interested taxpayers. It was no more incumbent on appellants to prove that fact than it was to prove the genuineness of their names. Taking the bill of exceptions as a whole, we think it can mean nothing less than that appellants were considered by appellee as taxpayers of the territory sought to be added to the Horn Lake consolidated school district.

The statute under which this appeal was taken is section 80 of the Code of 1906 (Hemingway's Code, section 60). The statute is very broad as to persons who are entitled to appeal from judgments and decisions of boards of supervisors and municipal authorities. It provides that "any person aggrieved" by such judgment, etc., shall have the right of appeal. Construing this statute, it was held in Wilson v. Wallace, 64 Miss. 13, 8 So. 128, that any taxpayer may appeal from a decision of the board of supervisors allowing a claim against the county; and, inFerguson v. Monroe County, 71 Miss. 524, 14 So. 81, it was held that the statute authorized an appeal by any qualified elector and taxpayer from a decision of the board of supervisors ordering an election to determine the question of whether intoxicating liquor should be sold in the county. These cases are referred to as showing that the court has given the phrase in the statute, "any person aggrieved," a liberal construction in favor of the person taking the appeal. Appellants, in their written objections filed with appellee, stated that they were interested as taxpayers. Appellee did not see fit to take issue by formal pleading with any averment of fact set out in the objections. Although that was not required, still, if appellee intended to make the issue that appellants were without interest, that purpose should have been called to the attention of appellants, either by a pleading to that effect or otherwise.

Appellee also contends that appellants are not entitled to be heard because their appeal to the circuit court was taken out of time. We think this contention is without merit.

Appellants contend that the order of appellee making the consolidation of the two school districts is void, because neither the order of the school board nor of appellee recited that the petition asking for the consolidation was signed by a majority of the school patrons residing within the territory to be added. The consolidation was sought to be made under chapter 198 of the Laws of 1922. Section 1 of that act provides, in substance, that any territory not a part of a consolidated school district may be added to such district by the school board, "upon petition being presented to it by a majority of the school patrons residing within the territory to be added," and that the school board shall enter an order on its minutes making such territory a part of the consolidated school district, whenever the territory has complied with other provisions of the statute, and that the school board shall certify such action to the board of supervisors of the county; that thereupon the board of supervisors shall order an election in the added territory, etc. It will be noted that the petition to the school board must be presented by a majority of the school patrons residing within the territory to be added.

The order of the school board does not recite that the petition was signed by a majority of the school patrons residing within the territory to be added. The recital of the order is that "a majority of the patrons of the said school has signed said petition," without stating where such patrons resided.

Appellee, in acting on the order of the school board, certified to it under the statute in ordering the election, made no reference as to whether the petition to the school board had been signed by a majority of the school patrons residing in the district to be added. Appellants argue that such a recital in the order of the school board is jurisdictional, and, not having been made, the action of the school board and of the board of supervisors in making the consolidation was void. Boutwell v.Board of Supervisors, 128 Miss. 337, 91 So. 12, we think, is decisive of this question in favor of appellants' contention. It was held in that case that the maintenance tax authorized for a consolidated school district by chapter 170, Laws of 1920 (Hemingway's Code Supp., section 4002), which provides for its levy on the petition of a majority of the qualified electors of the school district upon the approval of the board of education, could not be levied, unless the statute had been complied with, and that the requirement of the statute that a majority of the qualified electors shall petition for the levy of such tax, and that such levy shall have the approval of the board of education before the board of supervisors shall make the levy was jurisdictional, and that a levy made without compliance with the statute was void, and that a compliance with the statute had to affirmatively appear on the minutes of the board of education as well as on the minutes of the board of supervisors, that the statute in that case made it a condition precedent to the levy of the maintenance tax that a petition of the majority of the qualified electors of the district ask for it. The statute here under consideration in equally explicit language conditions the right of the board of education to add other territory to a consolidated school district upon a petition of a majority of the patrons of the school residing in the added territory. The order of consolidation by the school board recites that the petitioners were school patrons of the territory to be added, but this falls short of a finding that they were school patrons of the added territory residing therein. It is a matter of common knowledge that school patrons may, and often do, reside in one school district and patronize a school in another school district, and this is permitted by law. The fact adjudicated by the school board was that the signers of the petition were school patrons of the added territory, but there was no adjudication by the school board that the other fundamental fact existed; namely, that they resided within the added territory.

It follows from these views that the action of appellee in attempting to make the consolidation of the two school districts is void.

Reversed, and judgment here for appellants.

Reversed.