Evans v. Wright

William H. Cook, J., delivered the opinion of the court. W. S. Evans and other taxpayers of Calhoun county exhibited their bill of complaint in the chancery court against J. W. Wright, tax collector, seeking to enjoin the collection of a tax on all the taxable property of the New Liberty separate school district, levied for .the purpose of creating a fund to pay for fuel and other necessities for the public school during the scholastic year of 1917 and 1918, and to maintain the school for seven months, and also praying that the organization of the school district be declared void. A preliminary injunction was issued, and upon the final hearing there was a decree dissolving the injunction and dismissing the bill, and holding that the said school district was properly and regularly organized and created, and from this decree complainants prosecuted this appeal. The bill of complaint alleged that the petition for the creation of the New Liberty separate school -district was filed with the county school board on the 6th day of Decern [710] her, 1915, and an order was thereupon entered creating the district, and that on the 6th day of October 1917, the board of supervisors entered an order on its minutes levying a tax of three and one-half mills on all property in such school district, and that this order of the board of supervisors Avas void for the reason that it did not recite the jurisdictional facts necessary to a lawful levy of such tax. The bill attacked the organization of the school district on three grounds: First, that under section 4512, Code of 1906 (section 7332, Hemingway's Code), the school board was Avithout authority or warrant in law to take jurisdiction of the petition and act thereon, or to change the boundaries of existing school districts, after the 1st day of August of said year; second, the order of the board failed to recite that the petition was signed by a majority of the qualified electors of the district proposed to be organized, or that the teri ritory proposed to be incorporated therein contained not less than sixteen square miles, or that a free school would be maintained therein; and, third, that the order was entered Avithout any lawful notice to complainants, who were property owners of the territory proposed to be so incorporated. The answer filed by appellee denied that either the order of the school board creating the district or the order of the board of supervisors levying the tax was void, and alleged that, if the said order of the school board was in any manner defective at the time the order was made, the said school district and the organization thereof was validated by chapter 256 of the Laws of 1918, which became effective March 21, 1918. Chapter 256 of the Laws of 1918 is as follows: “All municipal and unincorporated separate school districts, and all consolidated school districts, which have exercised the privileges and franchises of a school district for a period of two years shall in all cases be conclusively presumed to have been legally established and organized.” This statute is not one of limitation, but is distinctly curative in its nature and effect, and upon the passage of this act it had the effect of validating the organization of all [711] school districts which had exercised the privileges and franchises of a school district for a period of at least two years prior to1 its passage. - The stenographers transcript of the evidence taken at the trial of this cause has been-stricken from the record, and we must presume that the evidence supported the decree of the chancellor and showed that the New Liberty separate school district had exercised the privileges and franchises of a school district for a period of two years prior to the passage of chapter 256 of the Laws of 1918, and thereby came within the curative provisions of this act. We conclude, therefore, that the decree, in so far as it adjudged that the school district was properly and regulárly organized and created, is correct. It is next contended that the decree dissolving the injunction was erroneous, for the reason that the order of the board of supervisors levying the tax was void, because there was no petition of a majority of the qualified electors of the district requesting the levy, and because the order does not recite the jurisdictional facts necessary to a valid levy. Chapter 186 of the Laws of 1916 (section 7364, Hemingway’s Code), provides in part as follows: “For separate school districts having no municipal organization, the board of supervisors on petition of a majority of the qualified electors shall levy a tax sufficient to pay for fuel and other necessities for its public schools, and shall make such levy of taxes as may be necessary to maintain the schools after the expiration of the four months’ term provided for by the state, or to supplement during the four months’ term. The supervisors may also levy taxes to erect, repair and equip school buildings and houses, and may issue bonds for that purpose in the manner provided in the chapter on municipalities. In the separate school districts lying in two or more counties the board of supervisors of each county shall levy the required-tax in their respective counties on such petition, and it shall not be necessary that a majority of the qualified electors of such district in each county shall sign the petition, but a majority of all the qualified electors of district, regardless of county lines, [712] shall be sufficient to require the several boards of supervisors to levy the tax, and when the amount of the required tax shall be once fixed, it shall remain the same for each successive year so long as the tax district is maintained, unless changed by a petition of a majority of the qualified electors of the district.” In the levy of the tax authorized under this section the board of supervisors exercises only a limited and special jurisdiction, and the power must be exercised in the particular manner prescribed by the statute, and the requisite jurisdictional facts to show a lawful exercise of the power must appear on the face of the record. Under this section the qualified electors of the school district have the sole power to initiate a levy of a tax on the property of the district, and until the petition of a majority, of such qualified electors is filed the board of supervisors is without jurisdiction to make the levy. The order adopted by the board of supervisors in this case not only fails to recite this necessary jurisdictional fact, but, on the contrary, the record affirmatively shows that no such petition was filed. Since no petition of a majority of the qualified electors was filed, the board of supervisors was without authority to make the levy, and the order attempting to do so was therefore void. The decree of the court below, adjudging the school district to be properly and regularly organized and created, is therefore affirmed; but the decree, in so far as it dissolved the injunction and dismissed the bill, is reversed, and the injunction reinstated. Affirmed in part; reversed in part.