Board of Supervisors v. Walker , 126 Miss. 595 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

C. E. Walker and others filed a petition for mandamus against the board of supervisors of Simpson county to compel the board to make a levy of five mills for the Mt. Zion consolidated school district, alleging that proceeding under chapter 170, Laws of 1920, a petition was presented to the board of supervisors by a majority of the qualified electors of said consolidated school district, which petition was approved by the county school board, and prayed the board of supervisors to make a five-mill levy in accordance with chapter, 170, Laws of 1920; that the county school board adjudged the petition to contain a majority of the qualified electors and the petition was then submitted to the board of supervisors, who thereupon began an investigation as to whether or not the petition so presented and approved by the school board contained a majority of the qualified electors of the said school district when presented to the board of supervisors; and that the board of supervisors found that a majority of the qualified electors had signed a counter-petition against the ’levy and declined thereupon to levy the said taxes as prayed. No appeal was taken from the order of the board declining to levy the taxes, but thereafter a petition for mandamus was filed. Thg petition was demurred to, first, that the petition is insufficient in law, in that it does not state á cause of action; second, that defendants had a right under the law to act upon the petition directed to them with reference to making the levy and were not bound by the petition and order of the county school board Avith reference thereto. The demurrer was overruled and the board 'declined to plead further, and judgment was rendered directing tlie writ of mandamus to issue, from which judgment this appeal is prosecuted.

The contention of the board of supervisors, the appellant, is that it had the right to determine whether the petition for the tax levy contained a majority of the electors of the district, and that the petitioners on the original petition had a right to get off said petition any time before the levy was made, and that the board was not bound by the status of the petition at the time it was approved by the county school board.

The appellees contended that the county school board had a right to adjudicate the sufficiency of the petition and whether it contained a majority of the electors at the time of its approval by the county school board, that thereafter no change co.uld be made, and that the board of supervisors had no discretion in the matter or power to review the action of the county school board.

Chapter 170, Laws of 1920, provides that, on the petition of the majority of the qualified electors of any qualified school district containing not less than two square miles and the approval of the county school board, the board of supervisors shall make the levy prayed for, etc.

The question for decision is whether the petition can be changed by signers thereon .withdrawing therefrom after its presentation and approval by the school board and prior to action on the petition by the board of supervisors.

In the case of Price v. Sims, 116 Miss. 687, 77 So. 649, this court held that signers to a petition addressed to the board of supervisors or a municipality can take their names therefrom by signing a counter-petition.

The language in the present statute, “on the approval of the county school board,” does not confer upon the county school board final jurisdiction to decide whether the petition contains a majority of the qualified electors of the district. It may bq that the county school board ought not to act on the petition unless and until it contains a majority of the qualified electors, but their decision upon that question is not final. The principal purpose, if not the sole purpose, of the requirement for the approval of the county school board is to confer upon the county school board the power to pass upon the wisdom and necessity for the school levy. In many instances a consolidated school district would not be able to raise sufficient funds to conduct the school in accordance with law on that subject, and in some cases the amount of tax petitioned for might be wholly insufficient to run the school for the period of time required, but it was not the purpose of the law to give a school board the jurisdiction to pass on the sufficiency of the petition as to signatures so as to bind the board of supervisors.

The petition is addressed to the board of supervisors, and the board has the power to determine the question of its own jurisdiction and the petitioners may withdraw at any time before the board of supervisors acts thereon. Circumstances may arise which would make it highly proper and perhaps absolutely necessary to prevent the levying of taxes after the school board had approved the petition. Floods, fires, or storms or other causes might so change the condition of a district as to make it of the utmost importance to the people to have this power. The attorney-general has held in accordance with these views. See Opinions of Attorney-General, 1911-1913, p. 75; same, 1917-1918, pp. 39, 40. We think this interpretation of the law by the administrative departments of the government is correct, and that the court below was in error. Wherefore the judgment will be reversed, and judgment entered here for appellant.

Reversed, and judgment here.