Alatalo v. Shaver
| Citation | 186 N.W. 872,45 S.D. 163 |
| Decision Date | 31 January 1922 |
| Docket Number | 4949,4947,4946,4948 |
| Parties | JOHN ALATALO, Plaintiff and appellant, v. ESTHER M. SHAVER, Hamlin County Superintendent of Schools, Defendant, C. P. Leonard, et al., Board of Education of Ind. Con. Sch. Dist., Defendants and respondents. |
| Court | Supreme Court of South Dakota |
Appeal from Circuit Court of Hamlin County, SD
##4946, 4947, 4948, 4949--Affirmed
Eugene P. Campbell, Loucks, Hasche & Foley
Attorneys for Appellants, John Alatalo and Isaac Isaacson.
H. A. Linstrom, F. J. Benthin
Attorneys for Respondents, Esther M. Shaver and others.
M. J. Russell, McFarland & Kremer
Attorneys for Respondents, C. P. Leonard and others.
Opinion filed January 31, 1922; Rehearing denied March 10, 1922
(See 40 SD 102, 166 N.W. 309, 42 SD 562, 176 N.W. 653, 43 SD 142, 178 N.W. 139)
These causes were before us upon former appeals. Our opinions will be found reported, under the title of Isaacson v. Parker in, 40 SD 102, 166 N.W. 309, in 42 SD 562, 176 N.W. 653, and in 43 SD 142, 178 N.W. 139. Reference is made to such opinions for an understanding of the facts pleaded, the various issues that have been raised, and the holdings of this court. It will be found that this court, by reversing orders sustaining demurrers to the complaints, has held the attempted creation of the consolidated school district void, upon the ground that the statute under which it was attempted to be organized did not authorize the inclusion of an independent district in a consolidated district. When these causes were remitted to the trial court after the last of the above opinions, plaintiffs were granted permission to amend their complaints. The amendments were in the nature of supplementary pleadings, alleging the payment of, and seeking to recover, further taxes that had been paid under protest since the dates of the original complaints. Defendants again demurred to the complaints, and the trial court again sustained the demurrers. It is from the orders sustaining such demurrers that these appeals were taken.
The former opinions of this court having announced the law of this case, the orders appealed from must, of necessity, be reversed, unless, by the passage of certain curative acts, the abortive attempt to incorporate the school district has been validated. Since the former appeals, but prior to the rulings of the trial court from which the present appeals were taken, the Legislature passed two curative acts—chapters 2 and 47, Laws Special Session 1920. The first is a special act purporting to validate the organization of this particular consolidated school district. The other specifically authorizes the organization of consolidated school districts through the union of an independent school district and one or more other school districts; purports to validate all acts and proceedings relating and pertaining to the organization of consolidated school districts organized or attempted to be organized under the law under which it had been attempted to organize this school district; purports to so validate such organizations, notwithstanding irregularities, omissions, and defects in the proceedings taken, and notwithstanding any want or lack of power to authorize same under the former statute; purports to validate such organizations as of the dates of such abortive attempts; declares such organizations so validated to have existed as consolidated school districts since their attempted organizations; and validates all the acts of the officers of said organizations, including all proceedings for taxation in support of such organization.
It seems conceded that the ultimate questions before us are: (1) Has the abortive effort to incorporate the consolidated district been entirely validated by the curative acts? (2) Even if the district in question is now a valid corporation, have the taxes levied prior to the curative acts been validated by such acts? In arriving at answers to these questions, we find it necessary to consider only chapter 47, supra, and express no opinion as to the effect of chapter 2, supra.
Appellants contend that the Legislature was without power to pass any act to cure proceedings already adjudged jurisdictionally defective. This same contention was urged upon a second appeal in the case of Hodges v. Snyder, 178 N.W. 575. Our opinion on the second appeal will be filed at the same time this decision is filed, and will, be found reported in 45 SD 149, 186 N.W. 867. That case also involved the validity of the attempted organization of a consolidated district under the same law under which the district now under consideration was organized. In that case, prior to the enactment of chapter 47, supra, this court, as in the present case, had held the attempted organization of the school district invalid, and a final judgment to that effect had been rendered by the trial court in compliance with such decision of this court. That case, therefore, upon the second appeal presented a unique situation, and its consideration required and led to a most careful distinction as to the purpose and effect of different curative acts, in order to determine what acts could become effective regardless of prior judicial action, and what ones could not. We found that it was the nature and purpose of an act, rather than the fact of pending actions or prior judgment, that determined the validity of curative acts, except, of course, that a curative act, which might be effective prior to final judgment, could, never be effective to destroy a vested right created by a final judgment. However, in the present case, there has never been a final judgment. Cooke v. McQuaters, 103 N.W. 385. The law as to the effect of curative acts of the nature of the one now before us—being the same one before us in the Hodges case—is so conclusively settled by a line of decisions to which there is no exception that we felt no hesitancy in declaring in the Hodges case:
"No one could or would for a moment claim that this act would not have applied to and have affected the status of this particular territory, if it had gone into effect but a few days earlier—any time before such status had been judicially declared by the final judgment of the circuit court."
We have examined every one of the large number of cases cited in support of appellants' contentions. Such examination discloses that each and every case which holds a curative act ineffective is like the cases cited by the respondents in the Hodges case and reviewed by this court in its opinion therein. While they fully support the propositions announced in Cooley's Const. Lim. 113, and 6 R. C. L. 162, and which we quote in the Hodges case, we can only say of them as we said of the cases cited by respondents in that case:
"It seems too clear for dispute that these decisions have not the slightest bearing upon the question before us."
We are satisfied that appellants, when they read those decisions in the light of what we announce in the Hodges case, will recognize the clear line of distinction between such cases and the cases at bar. In addition to the authorities cited by us in the Hodges case, we would cite United States v. Heinszen, 206 U. S. 370, 27 Sup. Ct. 742, 51 L. ed. 1098, 11 Ann. Cas. 688; Ferry v. Campbell, n0 Iowa, 290, 50 LRA 92; Middleton v. City of St. Augustine, 42 Fla. 287, 29 South. 421, 89 Am. St. Rep. 227; People v. Stitt, 280 Ill. 553, 117 N.E. 784; Hepburn v. Curts, 7 Watts (Pa.) 300, 32 Am. Dec. 760; Brand v. Multnomah Co., 320 Or. 79, 60 Pac. 390, 62 Pac. 209, 50 LRA 389, 84 Am. St. Rep. 772-784; Schenley v. Commonwealth, 36 Pa. 29, 78 Am. Dec. 359; and McSurely v. McGrey, 140 Iowa, 163, 118 NW 415—all of which are applicable to the exact facts presented by the cases now before us. We would call particular attention to the McSurely case, as the court therein passed upon a curative statute covering two subject matters—one invalid for reasons made perfectly clear in that and the vast number of cases passing upon similar provisions; the other, similar to the act now before us, which all authorities hold valid, even after final judgment holding original act void. In that case the court incidentally discusses the plenary powers of the Legislature over counties, powers similar to its powers over school districts, certain fundamental rules governing the construction of curative acts, and other questions applicable to this case. The following, from the opinion in that case, applies fully to the case before us:
However, appellants go further and contend that, even though there had been no action in court determining the invalidity of the act under which the attempt to organize this consolidated district was made, we must hold the curative act void because the proceedings taken to organize the district were absolutely void, and curative acts can cure only voidable proceedings. If this contention is sound, then the numerous consolidated districts (comprising former independent and common school districts), which were organized in the belief that the law then in force—the one sought to be cured by chapter 47, supra—authorized same, have no legal existence, even though no action may ever have been brought to test their validity. We deem the following proposition settled beyond all dispute:
"Where there is no constitutional prohibition, the Legislature may validate by a curative act any proceeding which it might have authorized in advance."
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