Ringo v. Stewart , 4 B. Mon. 206 ( 1843 )

JoutlE Marshall

delivered the opinion of the Court.

This action of trespass was brought by Stewart to test the authority of Ringo, as collector of the 11th School-District in Fleming county, to distrain for the tax assessed upon the inhabitants of that district, at a meeting held therein on the 6th of November, 1840, at which meeting the school system provided by the act of February, 1838, (3 Stat. Law, 528.) was adopted by a majority of the voters present; a tax was assessed and officers elected.

The case of Chiles vs Todd, at the present term, decides in what manner these preliminary meetings may be called and held, so as to make the vote for adopting the school system, and the other proceedings authorized by the act, effectually binding upon the inhabitants of the district, and we need only say upon that subject, that so far as those points merely are involved, the validity of the proceeding in this case is sustained by the decision refer, red to. But there is, in this case, a more radical and fundamental objection than that which questions the manner in which the preliminary meeting was called and held. The existence itself of the 11th District, in any such form as would authorize a meeting, called by any general notice, to bind those who were not present, is denied, and as we think successfully.

The 8th section of the act provides, that the County Courts shall direct the Surveyors of their respective counties, with other competent persons, to divide their respective counties into a convenient number of School Districts, and to return a report of the same, with necessary explanations, to the Clerks of. their respective Courts, on or before the first day of September following, whose duty it shall be to record the same, &c. &c. It appears that at the June term, 1838, the County Court of Fleming directed the Surveyor of the county and five others named in the order, to divide the county into districts, as .prescribed; and that a report, signed by'three, of whom the surveyor was one, was returned.to the Clerk’s office on the first of September following; but the Clerk, some short time after, died; and the report was not recorded until 1841; and it further appears, that on application at the .office, before the meeting of the 6th of November, by a person alledged to be within the 11th District, there was no report nor record or copy of it there, and he could not even find it by inquiry from the School Commissioners, who had taken it out, and it does not appear to have been in the office at any time between the date of the •notice calling the meeting on the '6th of November, and the day on which the meeting was held. Now, as the first meeting to be called was to exercise the important function of determining whether the system should be adopted, whereby, if the proceedings were regular, all the inhabitants and property of the district would become bound to the payment of such taxes as might then and afterwards be assessed at the regular meetings of the district, it was obviously necessary, in point of justice and in obedience to the principles on which our institutions are founded, ■•that all persons liable to b,e thus affected by the introduction of this new power, should have a full and fair opportunity of participating in the meeting, by whose vote it was either'tobe rejected or received, established and reg. ¡ulated. It was for the purpose of giving this opportunity, that the act requires, not only that public notice of the time and place of the meeting shallbe given, but.that the report, showing the division of the county into districts, should be recorded. It would have been.a mockery to the right of the citizens to require,- as the act does, notice by advertisement of the meeting, by whose votes they were to be affected, unless all persons to be bound thereby had the means of knowing what the district was, and to whom the notice was addressed: and it was to furnish the means of knowing this, that the law required that the report of the division of the county into districts should be returned to the Clerk and recorded in his office, where, being accessible to all, it would furnish to each the means of knowing to what district he belonged, and a fair opportunity of guarding his rights. The recording of the division into districts, or at least its being lodged and remaining in the office, subject at all times to the inspection of those who were interested in the subject was, together with the publication, the regular means appointed by law for giving to each individual the information requisite for enabling him to participate, as he would have a right to do, in a measure which was to subject himself and his properly to the exigences of a new authority ; and we can but regard every part of these appointed means as essential to the lawful introduction and establishment of that new authority. If under any circumstances of accidental loss or destruction of the report before it was recorded, the want of the opportunity appointed by law for ascertaining the boundaries of the respective districts could be supplied otherwise than by a new report, we are satisfied that this could be done by nothing less than a personal notice from the Commissioners to each individual in the district, who had a right to vote in the meeting; and the efficacy even of such a notice may be doubtful, since it might not have been accompanied by, nor carried with it, as tbe'law then stood, sufficient evidence that the persons addressed were within the district whose meeting they were required to attend. In this case, however, there was no attempt to supply, by actual notice, the means of knowledge which the inhabitants of the district were entitled to. The notice was a general one, posted up in different places, but neither served upon individuals nor containing the names of those ' to whom it was addressed.

Such report should designate the boundaries with such certainty, by actual survey or otherwise, as to show who were entitled to vote in the adoption of the system.

A still more radical objection is, that the report itself, had it been recorded or had it remained in the office, would not, as it appears in this record, have given the information which it was designed to convey, with regard to the boundaries of the several districts or the persons residing within them. The report, as to the 11th District, seems to consist merely of a list of seventeen names, with the number of children between seven and seventeen years of age, annexed to each, under the title of the 11th District, and accompanied by a short statement, applicable to all the districts, importing that the names of those “settlers” only who have children are set down, and that on the outside leaf, there is a plan of the county, drawn by observation, showing the position in which the several districts lie. This plan, however, is not incorporated into the present record, but it is to be inferred from what is said in the report, and more certainly from the evidence of the Commissioner who made it out, that it is a mere picture of the county and the several districts laid down, without ever going upon the ground, and referring to no objects, natural or artificial, lay which the boundaries of the district can be ascertained. It appears certainly, from the report itself, that the list of names in the 11th District does not contain the names of all the persons who lived within that district, as intended to be located; and it appears still more certainly, from the proceedings of the meeting, and the names contained in the warrant for collecting the tax, that there were many persons held bound by the proceedings, whose names were not contained in the list which was intended to describe the district. The report itself, therefore, must as the case now appears, be regarded as fatally defective in not showing, except to the extent of the names contained in it, what the 11th District was, or who were its inhabitants: and whether there was an actual surveyor not, the report should have been reasonably certain on one or the other of these points. 1

We are not to be understood as deciding that there must be an actual survey in order to designate the districts, nor that the mere temporary withdrawal of the' report from the office, before it was recorded, and before the preliminary meeting, would have been fatal. But upon the facts which have been stated and for the reasons given, we think there was a substantial defect in the very foundation of these proceedings, in the fact that the inhabitants of the 11th District had no means of knowing what that district was, and who were its inhabitants; and we are of opinion that in consequence of this defect, these proceedings were not authoritative under the law ; that consequently, the system was not legally adopted, nor the authority of assessing and collecting taxes acquired by the district, and therefore, that the assessment of the tax and the appointment of Ringo as Collector, even if it had been properly carried out by his executing bond, and the warrant given to him as authority for collecting the tax, even if it had been signed by persons shown to have been Trustees, and had been accompanied by a proper tax list annexed to it, showing the property on which the tax was charged, were wholly ineffectual to justify the seizure of the .plaintiffs property for the tax which he was called on to pay.

Boyd for plaintiff: Payne Waller and Cavan Sf Cox for defendant.

Wherefore, the judgment for the plaintiff is affirmed.

It was no abuse of the discretion of the Circuit Court to permit the plaintiff to amend his demise, by striking out one number of acres and inserting a greater, as no injury resulted to the defendant therefrom. A sale of ISO acres, part of a tract of 600, by an officer under execution, without other designation, is void for uncertainty. A division of land by County Court Commissioners must, to be bind» ing, appear to have been made at the instance and between those who were interested, and not of part of a tract only. The judgment in ejectment should conform to the verdict of the jury.