Trustees of Walton School v. Board of Supervisors

Etheridge, J., delivered the opinion of the court. The county school board of Covington county on petition of the qualified electors of the Sanford consolidated school district established a consolidated school known as the Sanford Consolidated School in said county; and there was a petition filed with the board of supervisors signed by a majority of the. qualified electors of said district praying for the issuance of fifteen thousand ■dollars ■ of bonds of the said school district to build and equip a school building for said district, and at the June meeting, 1916, the board of supervisors gave notice of its intention to issue the bonds as prayed for, and the same was published in four issues of the county paper notifying the inhabitants of the district, that the board proposed to issue the bonds as prayed for. On the first — 130 — Monday of July a petition in the following words was filed with the board of supervisors: “To the Honorable Board of Supervisors of Covington County: We, the undersigned, citizens, voters,'taxpayers, having learned of your intention to float bonds for the purpose of building and making a certain school located at Sanford in said county, and we being each of us in said Sanford district, do hereby petition your- honorable board to submit same to the voters of said district for their approval or rejection.” This petition was signed by more than twenty per cent, of the qualified voters in the said district, many of the names appearing on the original petition appearing also on this petition. On the first Monday of July, before the convening of the board of supervisors, these last-named petitioners held a conference with an attorney and employed him to present the petition on their behalf. The attorney advised the petitioners that the petition was probably insufficient in its verbiage to comply with the law, but suggested that he would try to get it amended before the board and ask all present who were opposed to' having it amended to speak out. There was general approval by those present, some thirty-five to fifty, citizens, and none of them objected. The petition was filed without amendment on the said Monday and it did not come up before the board of supervisors until Wednesday, July 5th, when the attorney representing* the petitioners appeared before the board and asked leave to amend the petition to conform to the statute. There was some discussion of the question by the attorney in favor and by the attorney opposed to this petition, one contending that the amendment could be made, and the other that it could not be made, and the board •of supervisors sent for the district attorney of the district, who was then at the courthouse engaged in circuit court, and asked his advice as to whether the amendment could be made, an dwas advised by the district at — 131 — torney that in his opinion the amendment could not be made. The matter appears to have been dropped, as no motion to allow the amendment was made by any person, and the board adjudged the petition insufficient, and proceeded to issue the bonds as prayed for in the original petition. There was no appeal from the order of the board to the circuit court, then in session, but on the 10th day of July, the appellants, who are petitioners to have the bond issue submitted to an election, filed a bill in the chancery court praying an injunction to restrain the issuance of the bonds making the appellees .and others defendants. The bill for injunction alleged unlawful, fraudulent, and illegal acts on the part of the board of supervisors in issuing the bonds. The writ of injunction was granted by the chancellor on the 11th of July, and on the 24th an amended bill was filed, which amended bill was demurred to, demurrer-sustained, and another amendment allowed, which amended bill was also demurred to, and demurrer overruled. Thereupon an answer was filed and a motion to dissolve made, and the cause came on for heáring on bill, answer, motion to dissolve, and evidence taken in open court. The chancellor on this hearing dissolved the injunction and dismissed the bill, and the appellants appeal. The bill in this suit attacked not only the proceedings before the board of supervisors, but also attacked the constitutionality of the statute pertaining to consolidated schools on the ground that the statute was unconstitutional: First, because the title of the statute was insufficient; second, because chapter 255, Acts of 1912, amending chapter 124, Acts of 1910, so changed the scope and purpose of the law as to be in conflict with section 60 of the Constitution; and, third, that the order creating the consolidated school did not provide for the maintaining of a colored school, and that there were colored people in the district, some of whom were complainants in the bill opposed to the creation of said school and to the issu — 132 — anee of said bonds. It was also alleged and proven that after the board created the consolidated school district there was a petition filed with the school board signed by a majority of the electors of the district asking the board to rescind its action, which the school board declined to do. In so far as the constitutionality of the act is concerned, we think that this court settled the constitutionality of the consolidated school law in the case of Bufkin v. Mitchell, 106 Miss. 253, 63 So. 458, 50 L. R. A. (N. S.) 428. In so far as the attack on the constitutionality of the law because of the title of the act both of 1912 and the 1916 act (Laws 1916, chapter 180), this contention is settled adversely to the appellants in the case of Lang v. Board of Supervisors of Harrison County, 75 So. 126, and authorities therein cited. The act is not in conflict with the state or federal Constitution, because under the law the board has the same power to create consolidated schools for the colored race that it has for the white race, and is not analogous to the ease of McFarland v. Goins, 96 Miss. 67, 50 So. 493. In said case the act creating the agricultural high school in 1908 provided in its terms that such school could only be created for members of the white race, and for this reason was a discrimination against the citizens of the colored race who would have to be taxed for the support of a school which they could not attend. Under the present act the board of supervisors and county school board may create consolidated school districts for either the white race, the colored race, or for both according to the necessities of local conditions; and the fact that a district is created for one race alone is not in conflict with any constitutional provision. Our general statutes authorize the school board of establish separate schools for the white and colored races in each county. A consolidated school might be desirable and necessary for one race, while there might be so few — 133 — members of the other race as to make it both unnecessary and undesirable. A consolidated school district is simply a common school district where two or more existing schools have been consolidated into one single school district. The bill in this case does not, however, properly present the question, because it is not alleged that there is sufficient colored children to maintain a public school, and, second, it does not allege that there is no colored school located in the territory comprising the district whereat the colored children may be educated in the same subjects taught in the consolidated school. There is therefore no merit in the attack on the constitutionality of the law. We think the petition presented to the board of supervisors, claimed to be against the issuance of the bonds, is not in fact a petition against the issuance of the bonds. It is merely a petition requesting the board to submit the question of the issuance of bonds to the people for approval or rejection. Any party could sign this petition without committing himself in any way as being for or against the proposed issue. Those in favor of the bond issue might sign this petition is quickly and readily as those against it. Doubtless many names which were appended to this petition would have voted for the bond issue because it appears that they had signed the petition for the bond issue and for the school. Most people are willing to submit questions of this kind to an election and to be governed by the result of the election regardless of their individual views. The boárd of supervisors’ right to order an election at the expense of the taxpayers of the county depends upon the compliance with the law on that subject, and it has no right to hold an election at the expense of the public merely to gratify the wish of the people. It must be .made manifest to the board that there are twenty per cent, of the electors who really oppose the issuance of the bonds, — 134 — and this petition did not indicate that twenty per cent.’ or any other number of citizens were opposed to the bond issue. We think the board was right in refusing to allow an amendment to the -petition after the first Monday in July and in the absence of the petitioners. The petition could not be amended without the consent of the parties who signed it, and it does not appear that twenty per cent, of the qualified electors and taxpayers of the district consented to such amendment. The judgment of the chancellor is therefore affirmed. Affirmed.