Town of North Carrollton v. Town of Carrollton , 113 Miss. 1 ( 1916 )

Smith, C. J.,

delivered the opinion of the court.

'The towns of Carrollton, and North Carrollton, situated in Carroll county, are separated from each., other only by a creek known as “Big Sand.” In 1902 the town of Carrollton declared itself a separate school district, and upon petition of the required number of citizens of certain adjoining territory., á portion of which was within the corporate limits of North Carrollton, such territory was annexed to and became a part of such separate school district. The house in which the district school was taught, and which was situated within the corporate limits of the town of Carrollton, was destroyed by fire in May, 1914.- Shortly thereafter the mayor and board of aldermen of the town of Carrollton gave notice to the taxpayers of the separate school district that they would issue bonds of the district for the purpose of erecting a school building on the site of the one destroyed by fire. Whereupon the board of aldermen of North Carrollton, by order ■entered upon its minutes, attempted to withdraw from the district the territory thereof situated within the Town of North Carrollton, which order was declared void by this court in the case of Carrollton v. North Carrollton, 109 Miss. 344', 494, 68 So. 483, 69 So.' 179. On the day that case was decided by this court, which was the 17th day of May, 1915, a petition was filed with the board of aldermen of the town of Carrollton by a number of (quoting now therefrom), “citizens and resident freeholders of the town of North Carroll-ton as now laid out and bounded, and all of which said corporate limits of said town of North Carrollton being a part of the territory comprising what is known as the Carrollton separate school district, do hereby petition the mayor and board of aldermen of the town of Car-rollton, being the governing body of the said Carroll-ton separate school district, to release the territory comprising the town of North Carrollton from the said Carrollton separate school district, as provided for in chapter 129, Act of 1912.”

Also, on the same day another petition was filed with the board of aldermen, which recited that:

“We the undersigned freeholders of all that part of the Carrollton separate school district that lies north of Big Sand creek,- and outside of the corporate limits-• of the town of North Carrollton as now laid out and bounded, do hereby petition yonr honorable body to release said territory above described from the Car-rollton separate school district-, as provided for in chapter 129, Acts of 1912. Yonr petitioners further show that they have through several parties requested the use of the minute books of said town for the purpose of securing the correct metes and bounds, of the said territory, but have been refused the use of said books by the clerk of said board, and, being unable to get same, present said petition in above form.”

These petitions were not acted upon at the regular June and July meetings of the board of aldermen, but were each time continued to the next regular meeting in the month following. On - June 22, 1914, a special meeting of the board of aldermen- of the town of Car-rollton was called for Monday, June 22, 1914, at three o’clock p. m., for the purpose of doing whatever might be necessary “with reference to the issuance of school bonds of the separate school district of Carrollton.” Whereupon the town of North Carrollton, and several resident citizens and taxpayers thereof, and also several resident citizens and taxpayers of the territory embraced within the separate school district, and lying without the corporate limits of both towns, exhibited a bill in the court below against the town of Carrollton and members of the board of mayor and aldermen thereof, praying that the mayor and board of aldermen of the town of Carrollton “be restrained from further continuing or delaying action upon said petitions, but that they enter an order as required by law ... at their August regular meeting, on the 3d day of August, 1915, releasing said petitioners as prayed in said petition,” and that they be enjoined from issuing the comtemplated bonds of the district “until a final hearing of this cause.” The bill, in addition to the facts herein before stated alleged that the petitions filed with the board of aldermen of the town of Carrollton were both signed by a majority of the resident- freeholders of the territory sought to be released, and that the refusal of the board of aldermen of the town of Carrollton to act upon the petitions was willful and capricious, and for the purpose of enabling it to issue bonds of the district before the territory thereof lying outside of the corporate limits of the town of Carrollton should be eliminated therefrom. It contained also an allegation “that an injunction suit was obtained and served in this matter by the town of North Carrollton et al. against The Town of Carrollton, No. -on the files and dockets of this court and referred to as a part hereof.” (The injunction suit here referred to is, we presume, the one disposed .of by this court on May 17, 1915, and in which a suggestion of error was pending at the time of the filing of the bill. This suggestion of error was overruled on a later day, as appears from 109 Miss. 494, 69 So. 179.)

A demurrer interposed to the bill was sustained, and the bill dismissed; and the appeal to this court is from the decree so doing. The grounds of the demurrer which are argued in the brief of counsel for appellee may be reduced to four: First, that the bill affirmatively shows that an injunction suit is now pending, involving the matters here in controversy; second, the cause is not one of equitable cognizance; third, that it does not affirmatively appear from the petitions filed with the board of aldermen of the town of Carrollton that they were filed by “a majority of the resident freeholders of the territory proposed to be released;” fourth, that the petition of the resident - freeholders of the town of North Carrollton prayed for the release of that town from the separate school district, when it appears from the bill that only a part of the territory now included in the corporate limits thereof is a part of the school district; consequently the land sought to be released is imperfectly described.

We do not understand counsel to seriously insist upon the first ground of demurrer as herein stated, and consequently will pretermit any discussion thereof.

In support of the contention that the record does not present a cause of equitable cognizance, it is said by counsel for appellee that a writ of mandamus, directing the members of the board of aldermen to act upon the petitions, is appellants’ proper remedy, in event they are entitled to any relief at all. It may be true that, if action upon their petitions was the only relief desired by appellants, a proceeding by mandamus would meet the demands of their situation, but an injunction was necessary in order to restrain the issuance of the bonds until these petitions could be acted upon, and since a court of equity has jurisdiction of a part of the controversy, it will draw to itself and adjudicate the whole of it.

In support of the third ground of demurrer as herein set out, we are referred to a number of cases holding that judgments of boards of aldermen and of supervisors are void unless the jurisdictional facts affirmatively appear from the record made in the proceedings wherein such judgments are rendered. In none of these decisions was it held that, where such boards can act only on a petition signed by a particular number of a particular character of persons, it must appear from the petition itself that it is signed by the required number, but simply that this fact must appear from the completed record. We do not regard the case of Telephone Co. v. Morgan, 92 Miss. 483, 45 So. 429, as in point here, because, if for no other reason, the statute upon which the proceeding in that case was based required that the right of the person invoking it “must be shown in the application” therefor. The jurisdiction of a board of aldermen to act upon a petition filed with it, under chapter 129, Laws 1912 — the statute upon which the petitions here in controversy are predicated — depends, not upon a recital in the petition that it is signed by a majority of the resident freeholders 'of the territory sought to be released from a separate school district, but upon the petition being in fact signed by a majority of such residents, which fact is for the determination of the board upon proper evidence. Ferguson v. Monroe County, 71 Miss. 524, 14 So. 81; Commissioners, etc., v. Johnston, 71 So. 320.

The description in the petitions of the territory sought to be eliminated from the district is sufficient to enable the board of aldermen to comply with the provisions of the statute under which they were filed.

Reversed and remanded, with leave for appellee to answer within thirty days after the filing of the mandate in the court below.

Reversed and remanded.