* Corpus Juris-Cyc. References: Constitutional Law, 12CJ, p. 1257, n. 60 New; p. 1264, n. 46. Schools and School District, 35Cyc, p. 835, n. 95; p. 850, n. 94; p. 992, n. 92. This suit involves the validity of the establishment of the Waterford consolidated school district of Marshall county. The circuit court, upon appeal from the board of supervisors, held that the creation and organization of this consolidated school district was void, because the county board of education had failed to comply with the requirements of the statute (chapter 14 of chapter 283, Laws of 1924), in that the board failed to "designate the location of the schoolhouse." The board of supervisors appeal from that judgment.
A majority of the public school patrons near Waterford in Marshall county petitioned the county board of education to establish the Waterford consolidated school district; the petitioners being residents of the proposed consolidated school district. The county board of education *Page 62 established the district, defined its boundary lines, and also named the sections incorporated within said district, as provided by the statute, but the board failed to "designate the location of the schoolhouse." The board expressly pretermitted the location of the schoolhouse for further consideration. However, the location of said schoolhouse has not yet been designated, so far as the record shows, as required under the law.
The establishment of the district was objected to, but there was no counter petition against the formation of the district, nor did the objectors appeal from the action of the school board to the board of supervisors, and, we may as well say, at this juncture, that no inquiry can be had as to mere irregularities in the proceedings by the board of education, because there was no appeal by the objectors.
When the superintendent of education reported to the board of supervisors that the board of education had created the consolidated school district, the board of supervisors recognized and confirmed the district, and thereupon ordered an election for the issuance of bonds to the extent of fifteen per cent. of the assessed valuation of the property in the district, the proceeds to be used for the purposes of erecting buildings, purchase of land, transportation vehicles, and other school purposes.
The objectors residing in the district did not appeal from this order of the board, so an election was held and the bond issue was authorized by a majority of the votters. However, when the election returns were filed with the board of supervisors, the objectors appeared in person and by counsel, and filed their written objections against the issuance of the bonds, but the objections were overruled by the board of supervisors, and the bonds in the amount of fifteen thousand dollars, were ordered issued for the benefit of the consolidated school district, and from these orders of the board of supervisors an appeal was prosecuted to the circuit court, where, upon hearing, said court held that the establishment of the consolidated *Page 63 school district was void, because of the failure of the school board to designate the location of the schoolhouse, as required by the statute authorizing the creation of the consolidated school district.
The decisive point in the case is whether or not the failure of the board to locate the schoolhouse is a jurisdictional defect that is fatal to the validity of the establishment of the district.
Chapter 14 of chapter 283, Laws of 1924, section 100, page 440, is the only law authorizing the formation of a consolidated school district, and reads as follows:
"The county school board at any regular or at a special meeting called for that purpose on petition of a majority of the patrons of a proposed consolidated school district may form a consolidated school district and it shall be the duty of the board to determine and to describe the boundaries thereof and to name the sections and parts of the sections composing the district and to designate the location of the schoolhouse."
It will be observed that the statute requires the school board to do three things, "to determine and to describe the boundaries thereof and to name the sections and parts of the sections composing the district and to designate the location of the schoolhouse." In the case before us the board failed to designate the location of the schoolhouse, and we think the failure was fatal to the validity of the creation of the district. Designating the location of the schoolhouse is one of the essential requirements of the statute, which is the only authority to create the district; and, as the formation of the consolidated school district depends entirely upon the statute, the fundamental requirements thereof must be complied with, otherwise a district cannot be formed. The view of the lower court, in that regard, was correct.
But it is urged by appellant that the postponement of the location of the schoolhouse was a matter within its discretion, and that the statute did not prevent the board from delaying the location for more mature consideration *Page 64 until such time as the board had reached a conclusion as to where the schoolhouse should be located; that the delay in the location of the schoolhouse ought not to be considered as a failure to locate it, as required by the statute, because the location may be designated by the board at any time in the future.
We cannot agree with the view contended for by counsel. It may have been all right for the board to have delayed the location of the schoolhouse for further consideration, after the district had been formed by the school board, but the location of the schoolhouse was certainly required before the election to issue bonds was held, and the matter voted on by the residents of the district. The electors were entitled to be informed where the schoolhouse would be located, before they voted for the bond issue and thereby impressed a tax obligation upon the property in the district.
We think the statute intended that all three of the essentials named therein should be complied with before a district could be said to be completely established. This was manifestly necessary that the district be complete, before the question of the bond issue could be legally and wisely passed upon by the voters of the district.
Another question presented in the case at bar is whether or not the statute authorizing the creation of a consolidated school district is repugnant to the due process clause of the Fourteenth Amendment to the federal Constitution. The recent federal supreme court decision of Browning v. Hooper, 269 U.S. 396, 46 S.Ct. 141, 70 L.Ed. 330, is cited by appellee as sustaining this view.
It is not absolutely necessary to pass upon this point, because the case at bar will be decided, upon another and different proposition, and, besides, our own court, in the case of King v. Board of Supervisors, 133 Miss. 494, 97 So. 811, has correctly held that this character of legislation does not violate the due process clause of the *Page 65 state Constitution, and, for the same reasons given, does not violate the federal Constitution.
Browning v. Hooper, supra, dealt with the assessment and levy of taxes for a road district in Archer county, Tex., and the statute in that state, authorizing this proceeding, which the federal supreme court declared was repugnant to the Fourteenth Amendment to the federal Constitution, we think is different from our statute involved in the case at bar.
The Texas statute provided that an entire district might be formed by petition of fifty resident property owners, taxpaying voters, and the commissioners' court was then required to order an election for the issuance of bonds for road purposes, in the district, etc. As we understand that statute, the district could be outlined and defined by the fifty petitioners, and then the commissioners' court was required to recognize it and order an election for the issuance of the bonds, which would be issued upon a two-thirds vote in favor thereof. The fifty petitioners would arbitrarily define the district under the statute, but, under our statute, the board of education outlines and defines what land is to be included in the school district, the legislature having delegated this authority to the board; and, furthermore, under our statute, the property owners of the district have notice, and have the right to appeal from any order of the board of education or board of supervisors, and are offered full opportunity to be heard and protest against the creation of the district or the issuance of bonds therefor. Consequently, there is, in our opinion, no failure under the due process clause.
Therefore we do not think the Browning v. Hooper, supra, case is controlling, on the question involved in the case before us.
The judgment of the lower court is affirmed.
Affirmed. *Page 66