Phillips v. Doe ex dem. Burrus

Citations

• 21 Miss. 31

Syllabus

<p>Under the act of 1833, the trustees of school lands were empowered, under certain circumstances, to lease for ninety-nine years the school sections; and it was provided, in the same act, that in townships not having sufficient population to elect trustees according to the law, the board of police for the county in which such townships were situated, should lease the section “ according to the provisions of the act, and in all other respects perform the duties required of the trustees ; ” it was held, that the board of police, in acting under this la\\y in leasing a school section, do not act as a court; the leasing is the exercise by the board of a special duty imposed by the legislature, not within its ordinary constitutional jurisdiction as a court; and the mode of its exercise is pointed out by the law to be in the same manner as if trustees had been elected; a lease, therefore, by the board of police, which would be good if made by trustees, would be good if made by the board.</p> <p>The law of 1833, authorizing trustees to lease school sections for ninety-nine years, prescribes the prerequisites necessary to constitute a good lease, all of which must be complied with to make the lease valid, viz: 1, the request of a majority of the heads of families in the township, minors not excepted ; 2, six weeks’ notice by advertisement in a newspaper, or if no paper is printed in the county, by posting notices in three public places ; 3, an actual leasing to the highest bidder at the time and place specified; and 4, in the case of a lease by the board of police, that there is not sufficient population in the township to elect trustees.</p> <p>The law of 1833 prescribes no mode for the perpetuation of these prerequisites, nor by what evidence they shall be established ; it does not require any of the steps to be made of record; it is, therefore, a matter in pais, to be established by parol proof, the duty of preserving which appertains to the purchaser, whose right is d