Doores v. Varnon

JUDGE PRYOR

delivered the opinion of the court.

It is only necessary to refer to one of .the grounds relied. on for a reversal of tlie judgment below. A tax was voted to create a graded school district within a certain boundary, including the town of Crab Orchard, in the county of Lincoln. The first section of the act under which the vote was taken makes it the duty of the county judge, “ upon a written petition signed by at least ten legal voters, who are tax-payers in any civil district, town or city in his county, to make an order on his order-book, at the next regular term of his court after he receives said petition, fixing the boundary of any proposed graded free school district, * * * * directing the sheriff to open a poll, * * * * for the purpose of taking the sense of the legal white voters * * * upon the proposilion” whether or not they will vote an annual tax for the maintenance of the school, &c. See the act approved on May 4, 1888.

On the fourteenth of September in the year 1891, it being the regular term of the Lincoln County Court, a petition, purporting to be signed by the proper number of legal voters and tax-payers, was presented to the county judge and filed. On the same day the petition was filed or presented to the county judge an order was entered directing the sheriff to open a pjoll on the seventeenth of October, 1891, for the pur *509 pose of sustaining or rejecting the application made for this tax as provided by the act in question.

The tax having been voted, some of the tax-payers •'obtained, an injunction enjoining its collection, on the ground that the order calling the election was premature,' and, therefore, void. The statute in plain terms empowers the county judge to make an order for the election at the next regular term after he receives the petition, and from this enactment the right to impose the tax alone arises. The recognized rule is, in cases of this character, where the power to impose the burden is delegated to others upon the result of a popular vote, that the act conferring the power must be strictly complied -with, and the question arising in this case is: “Is the power given the county judge to enter an order for the election at a term succeeding the filing of the petition merely directory or is it mandatory?”

The Legislature, doubtless, had some reason for postponing the entry of the order to a subsequent term, and the county court being a court of record, the application made to the county judge and filed was notice to the tax-payers of the purpose of the petitioners to submit the question of taxation to the popular vote. The postponement of the order to a subsequent term gave additional time for considering the question, and enabled those who were interested to ascertain whether those making the application were legal voters or tax-payers, and it being in the nature of an ex parte proceeding, the greater the necessity for giving to the voter all the time provided by the statute for considering such questions as might *510 arise from the nature of the application. We are-constrained, therefore, to hold that as the act authorizing this tax requires the order for the election to-be made at a term succeeding that at which the petition is made, it must be regarded as mandatory.

The judgment dissolving the injunction is reversed,, and cause remanded with directions to overrule the-demurrer and for proceedings consistent with this-opinion.