
    (58 South. 572.)
    No. 19,243.
    DAVIS et al. v. BOARD OF DIRECTORS OF PARISH OF BIENVILLE.
    (May 6, 1912.)
    
      (Syllabus by the Court.)
    
    Schools and Sciiool Distbicts (§ 103*)— Districts — Election—'Validity.
    An election, called for the purpose of taking the sense of the property taxpayers upon the question of the imposition of a special tax in aid of public schools, is illegal when no definite voting place has been designated, no notice given of the time and place when and' where the returns would be received, the ballots counted and the result declared, and the ballots used were not such as the law prescribes.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 115, 117, 240-245, 252; Dec. Dig. § 103.*]
    Appeal from Third Judicial District Court, Parish of Bienville; B. P. Edwards, Judge.
    Action by D. E. Davis and others against the Board of Directors for the Parish of Bienville. From a judgment avoiding a special election, defendant appeals.
    Affirmed.
    B. F. Roberts, for appellant. S. D. Pearce, for appellees.
   On Motion to Dismiss Appeal.

MONROE, J.

Defendant appealed from a judgment avoiding a special election held under its direction in school district No. 16 of Bienville parish for taking the sense of those having the right to vote upon the question of imposing upon the property of the district a tax of 10 mills, for a period of 10 years, in aid of the public schools, and decreeing the nullity of the tax thereafter imposed. The grounds of action relied on and the basis of the judgment were certain, alleged irregularities in the conduct of the election.

The plaintiffs and appellees now come into court and move that the appeal be dismissed, on the ground that appellant ha» •acquiesced in the judgment appealed from by ordering another election for the same purpose as that to which said judgment, refers, and they attach to their motion what purport to be copies of the official publication of the petition of the property taxpayers and of the resolution of the defendant board, in conformity thereto, ordering such •election to be held on the 26th day of the present month of May. Defendant and appellant has filed an answer to this motion, denying the allegations therein contained, save as admitted, and the answer proceeds as follows:

“Your defendant admits that the attached proceedings are true and correct; that the requisite number of qualified voters of district No. 16 have petitioned for an election, as the proceedings show; that your defendant has complied with the petition, as the law makes it mandatory upon your defendant to do; and that, further than this, your defendant has done nothing. Hence your defendant and appellant prays that the motion to dismiss be denied, and that, finally, the judgment of the trial court be reversed, and for all orders and decrees necessary and general relief.”

The answer is verified by the affidavit of defendant’s counsel; and the record thus made up is accompanied by the written consent of both counsel that—

“this motion be decided by this court on the proceedings of school board, as attached to plaintiffs’ (appellees’) motion; that these proceedings shall constitute all the evidence on this motion, without formality of remanding the case on this point.”

Counsel for defendant says, in a brief filed by him:

“The facts are simply these: An election has been held and the result declared in favor of the tax, and the tax levied. Certain parties have contested the validity of the tax, and the district court has decided in their favor. The defendant has exercised its constitutional right of appeal, and the case is before the court for decision. While this suit is pending, persons, not parties to the suit, have petitioned the school board for another election upon a similar proposition. The school board has no discretion, and simply follows the law and orders the election. The two elections are in no way connected; and there is nothing to prevent the two taxes, if they are voted by the qualified voters in accordance with the law.”

The position thus taken appears to us to be correct, and the motion to dismiss the appeal is overruled.

On the Merits.

The election which is the subject of this litigation was illegal, because no definite voting place was designated,' no notice was given of the day, hour, and place when and where the returns would be received, the ballots counted, and the result declared, and the school board made use of a form of ballot of its own devising, rather than that prescribed by law. Act 256, of 1910, §§ 3, 10. The law was disregarded in other fespects, which, under the circumstances here presented, we deem it unnecessary to pass upon.

Judgment affirmed.  