
    Hamilton et al. v. Board of Sup'rs of Lafayette County et al.
    
    (Division A.
    May 28, 1923.
    Suggestion of Error Overruled June 18, 1923.)
    [96 South. 465.
    No. 23429.]
    Statutes. Local and special law undertaking to validate consolidated school district bonds held unconstitutional; Legislature cannot by special or local act authorize consolidated school district bonds nor validate them after issuance.
    
    Chapter 464, Laws 1922, which is a local and special statute undertaking to validate the bonds of a consolidated school district, is unconstitutional, and therefore void because violative of section, 90, par. (p.), of the Constitution, which prohibits the legislature from passing any local, private, or special law “providing for the management or support of any private or common school, incorporating the same, or granting such school any privileges.” Under said constitutional provision the legislature cannot by special or local act authorize the issuance of such bonds, nor by the same character of act validate such bonds after their issuance has been provided for.
    Appeal from chancery court of Lafayette county..
    Hon. J. G. McGoaven, Chancellor.
    Proceeding by the board of supervisors of Lafayette county and Taylor consolidated school district to validate bonds of such district, wherein J. I. Hamilton and others taxpayers filed objection. Prom a decree validating- the bunds, the objecting taxpayers appeal.
    Reversed, and judgment rendered for the taxpayers.
    
      Harry M. Bryan, for appellants.
    It is our contention that chapter 464, Laws of 1922, is clearly unconstitutional, null and void, for the following reasons, to-wit: (a) The act is local, special, and private and directly violates paragraph “p” of section- 90 of the state constitution, (b) The said act violates article 1, section 1, and section 170 of the state constitution and is an attempt by the legislature to exercise judicial functions, (c) The said act is a denial to appellants of due process.of law. (d) The said act seeks to deny to appellants their suffrage rights guaranteed by the constitution.
    In the first place, not only is it a fact that there was no notice of an election given prior to the issuance of these bonds, but such fact Avas determined by express order of the board of supervisors of Lafayette county at the time of calling another election.
    LikeAvise, the proof of publication filed in the papers shoAVs definitely that this is true. In Monroe County to Use of Splunge Consolidated School District v. Minga et al., 90 So. (Miss.) 443, it was decided that bonds issued without the notice required by chapter 207 of the Laws of 1920, were absolutely null and void. Bear in mind that at the time of ordering the election in the instant case and at the time the board declared the election to be void, chapter 207 of the Laws of 1920, comprised full jurisdictional directions to be observed by the board in predicating this issue. The said order of the board declaring the election to be void was entered on March 7, 1922, and the act of the legislature referred to above was approved April 4, 1922.
    
      Haley v. State, 108 Miss. 899, 67 So. 498, held that: “By section 170 of article 6 of the constitution, board of supervisors are made a part of the judicial department of the state.” The above being true, the legislature clearly exceeded its constitutional authority in declaring the above-mentioned election held on March 4, 1922, to be valid both as to its calling and holding. Since when has the legislature been given constitutional power to determine matters of fact in the face of a judicial board? The minutes of the board, say on their face that there was no legal election — the legislature says that not only was there an election but that it carried. Lawson v. Jeffries, 47 Miss. 686, holds that the separation of the legislative, judicial, and executive powers of the government is fundamental both under the Federal and state constitutions and cannot be violated even by the ordinance of a constitutional convention. See 12 C. J. 807; Boutwell et al. v. Board of Supervisors of Jasper County, 91 So. (Miss.) 12; Barrett v. Cedar Hill Consolidated School District, 123 Miss. 370, 85 So. 125; Edwards v. Board of Supervisors, 124 Miss. 165, 87 So. 8; Adams V. Bank, 103 Miss. —, 60 So. 770. The case of Scarborough v. McAdams Consolidated School District, 124 Miss. 844, 87 So. 140, is decisive of the question of the validity of these bonds.
    It may be called by another name, but any act of the legislature of Mississippi which flatly contradicts an order of the board of supervisors of Lafayette county as to the holding of an election — its legality and how it re-suited — and authorizes the board to issue the bonds of a single, isolated, named district is a local private, or special law within the express condemnation of the paragraph of the section referred to above.
    I should here like to call to the attention of the court the cases cited by the late Hon. J. B. Harris, State’s Bond Attorney, in his opinion filed in the papers of this cause: Griffith v. Mayor, etc. Vicksburg, 102 Miss. 1, 58 So. 781. The validating act therein construed was a general statute applicable to “municipal bonds heretofore authorized by a majority of the qualified electors thereof voting,” etc. It was effective throughout the state and applicable to a general class. Bacot v. Hinds County, 86 So. 765. The main question in that case was the constitutionality of chapter 28, Laws Ex. Sess. 1917, creating a state’s bond attorney. The court did say, however, “Except in so far as the constitution may otherwise provide, the legislature has full power to provide both for the issuance of bonds by municipalities, counties, and other public bodies of like character, and for the validation before their issuance of bonds proposed to be issued by such bodies without authority so to do, so that chapter 28, Laws Ex. Sess. 1917, is valid unless it violates some provision of either the state or Federal constitution.” It will be noted that the bonds sought to be validated were road bonds — a field not prohibited by section 90 of the state constitution. Parker v. Board of Supervisors of Grenada County, 88 So. 172, held that road bonds issued under the general statutes, chapters 207 and 276 of the Laws of 1920, and validated under the State Validation Act of 1917, could not be attacked after the decree of the chancellor was entered confirming and validating said bonds.
    In not a single one of the cases cited by the State’s Bond Attorney were the bonds issued for purposes enumerated in section 90 of the state constitution. Middleton v. City of St. Augustine, decided by the supreme court of Florida, 29 So. 421, and cited by counsel for appellees in the presentation of this case below, simply referred to “the rule in respect to statutes curing defects in legal proceedings, where they amount to mere irregularities, not extending to matters of jurisdiction, and in the absence of constitutional limitations.” See Town of Enterprise v. State, 10 So. 740; City v. Stamps, 62 Iowa, 303, 17 N. W. 518, holding: “The legislature, prohibited by constitution, art. 3, section 30, from making local or special laws, cannot indirectly accomplish that result by an act validating a void municipal ordinance.” Read v. City of Plattsmouth, 107 U. S. 568, 2 Sup. Ct. 208, 27 L. Ed. 414, is distinguishable.
    It is my firm conviction that one of the outstanding reasons for the unusually high taxation that is burdening the people of the state today is the ease in which solemn obligations, such, as bonds and certificates of indebtedness, are issued. For some reason we have drifted into a system of lavish public spending. This cause presents a monumental example of how an issue can be made without the approval of a majority of the qualified electors of a district.
    
      L. G. Andrews, for appellees.
    The contention of appellants is that chapter 464, Laws of 1922, is unconstitutional, null, and void, in that it is special and private legislation, and is an attempt by the legislature to exercise judicial functions, and is a denial to appellants of due process of law and their suffrage rights. An examination of the authorities discloses that the act is neither special nor private legislation. It is a curative act and one which the legislature had full power to enact. There is no doubt about the act being constitutional and that the legislature had full power to authorize these bonds in the first instance without an election and without previous notice to the taxpayers. What the legislature could have done in advance it can do subsequently; there being no constitutional limitation upon the legislature effecting this act. See Griffith v. Ticks-
      
      burg, 102 Miss. 1; Bacot v. Hinds County, 86 So. 765, 124 Miss. 231; and. Parker v. Board of Supervisors of Grenada County, 88 So. 172, 9 K. C. L. 1099; Charlotte Harbor & N. Ry. Co. v. Wells, et al., Board of Commissioners of De-Soto County, Yol. 43, No. 1, advance sheets U. S. Hep. 4. The contention that because the board of supervisors declared the election void the legislature was without power to pass the act curing the defect in the n'otice given is Avithout merit. Givens v. Hillsborough County, et al., 35 So. 90.
    The contention of appellant'is that such legislation is a usurpation of judicial power by the legislature, and in contravention of the distribution of governmental powers made by the constitution of the state. The curative act did not question the correctness of this decision, nor attempt to adjudicate the regularity of the previous acts of the county commissioners, but, recognizing the binding force of the judgment of the court, undertook to confer authority Avhere before there Avas none. The contention that the act is special or private legislation is also without merit. A statute intended to remedy or cure some particular condition is not regarded as special legislation as is illustrated by laAVS curing defects in the organization of road and school districts. State v. Squires, 26 Iowa, 340; State, ex reí, West v. Des Moines, 31 L. R. A. 186, 90 N. W. 527. The rule that eurative acts' are not necessarily special legislation was approved by the supreme court of the United States in Reed v. Plattsmouth, 107 U. S. 568; Newton County v. Green, Amer. Ann. Cas. 1914 C, 492, 149 S. W. 73.
    Argued orally by Harry M. Bryan for appellants and L. C. Andreics for appellees.
   Anderson, J.,

delivered the opinion of the court.

This is a proceeding by the board of supervisors of Lafayette county and Taylor consolidated school district, appellees, under chapter 28, Laws of 1917, and amendments thereto to validate fourteen thousand, five hundred dollars of bonds of the Taylor consolidated school district in said county. Objection to the validation of said bonds was filed by appellants, Hamilton, Walker, and Taylor, taxpayers and qualified electors of said school district. There was a trial before the chancery court under said validation act and a final decree rendered validating said bonds, from which appellants prosecute this appeal.

It is contended on behalf of appellants, and the contention is conceded by appellees, that unless the bonds in question are rendered valid by the curative act (chapter 464, Laws of 1922), they are void. Said statute, as its title imports, is simply a local and special act applying alone to this particular consolidated school district by name, by the terms of which it seeks to remedy and cure all defects in the proceedings providing for the issuance of these identical bonds. Appellants contend that this curative act is violative of section 90, par. (p), of the Constitution, which provides that the legislature shall not pass any local, private, or special law “providing for the management or support of any private or common school, incorporating the same, or granting such school any privileges.” Although it is not expressly conceded by appel-lees, it is .true nevertheless, that if the issuance of these bonds had been authorized by a local or special law, such statute would have been void under the constitutional provision in question, for this court distinctly so held in Hewes v. Langford, 105 Miss. 375, 62 So. 358, and Scarbrough v. McAdams Consolidated School Dist., 124 Miss. 844, 87 So. 140.

In the Hewes case chapter 288, Laws of 1912, authorizing the school board of Harrison county to establish a particular separate school district in that county, was under consideration. It was clearly a local and special act. The court held that the statute was violative of section 90, par. (p), of the Constitution.

In the Scarbrough case the court considered chapter 294, Laws of 1918, a local and special act authorizing the board of supervisors of Attala county to issue bonds for the purpose of building and equipping a high school “in the McAdams consolidated school district.” The court held that a consolidated school was a common school of the state, and that said statute violated the constitutional provision in question. The statute is sought to be upheld by Griffith v. Mayor of Vicksburg, 102 Miss. 1, 58 So. 781; Bacot v. Hinds County, 124 Miss. 231, 86 So. 765; and Parker v. Grenada County, 125 Miss. 617, 88. So. 172.

The Griffith case involved the validity of bonds of the city of Vicksburg issued for the construction of a waterworks plant for said municipality. Chapter 126, Laws of 1912, under which the court held the bonds validated, was a general statute applying to all municipalities in the state, the purpose of which was to validate all municipal bonds theretofore authorized by vote of the qualified electors of any municipality, where the municipality had failed to take some necessary steps for the legal issuance of the bonds. The court said in that case that the legislature under the Constitution had the power to subsequently ratify any unauthorized act which it had the power to authorize in advance.

The Bacot case involved the constitutionality of chapter 28, Laws of 1917, creating the office of state bond attorney and providing a method for the validation of municipal bonds. The act was upheld. The legality of road bonds was the question passed upon in that case. The court held that the legislature had the power to provide for the issuance of bonds of counties, municipalities, and other political subdivisions of the state as well as for the validation thereof under said act prior to their issuance and sale.

In the Parker case it was held that after the bonds had been validated by a decree of the chancery court under chapter 28, Laws of 1917 (said validation statute), they could not be questioned; that such a decree was conclusive.

These cases are not in conflict with the Hewes and Scar-brough cases. Entirely different questions, as will be seen, were involved. The question is simply whether under this constitutional provision the legislature can do by a curative statute that which it could not authorize in advance. We say it cannot. It cannot do by indirection what it could not do directly. To hold otherwise would to a large extent nullify the constitutional inhibitions against local, special, or private legislation contained in section 90 of our Constitution. Stange v. City of Dubuque, 62 Iowa, 303, 17 N. W. 518; Enterprise v. State, 29 Fla. 128, 10 So. 740.

Reversed, and judgment here for appellants.

Reversed.  