Bookout v. Board of Supervisors

Smith, J., delivered the opinion of the court. All- of the orders passed by appellee after the filing of the petition in May, 1911, by which it attempted to assume power not conferred on it by the petition, to wit, the power to issue bonds for the purpose of building roads outside of the fifth supervisor’s district, were either void or voidable. If void, they were nullities, and could have been disregarded. If voidable, they could have been set aside in a proper proceeding instituted for that purpose. This being true, appellee had full power to repeal these orders, irrespective of what the power of boards of supervisors ordinarily is with reference to rescinding or repealing former orders passed by them, for the reason that in repealing these orders appellee simply did voluntarily that which, in effect, it could have been forced to do against its will. It was not necessary for appellee to wait for these orders to be set aside. It very properly acted in the matter of its own accord. It is admitted by appellant that these orders were void in so far as they assumed power not conferred upon the board by the petition, but it is claimed that they are valid in all other respects. These orders of appellee are void or valid in their entirety. Had the order granting the prayer of the petition advised the people of the district that under the petition filed with it appellee could only use the money to be derived from the sale of bonds in building roads within the district, it may have been that a counter petition would have been filed, and an election demanded. The people of the district may have been willing for the bonds to be issued, provided the money [418] was to be spent in accordance with the published intention of the board, but not if the money could not be so spent. These views are not in conflict with Thomas v. Lee County 98 Miss. 232, 53 South. 585. It is unnecessary for us to decide whether or not the board had the power, in repealing these orders, to dismiss the-petition upon which they were based, instead of then proceeding to act in accordance therewith. If the board was without power to dismiss this petition, it was, of course, still pending, but, before any further action was taken thereon, another petition was filed praying for the issuance of bonds and the creation of a different road district. There were therefore then two petitions pending before the board at the same time, either of which the board had the right to act upon first. An affirmative action under one then deprived the board of any power to act upon the other, and the granting of the relief prayed for in one of these petitions excluded the board from then granting the relief prayed for in the other. Affirmed.