Ashley v. Richard

• Decision Date: 08 December 1919
• Citation: 185 P. 1076,32 Idaho 551
• Parties: CLARENCE L. ASHLEY, Appellant, v. GEORGE RICHARD et al., Trustees of SCHOOL DISTRICT No. 76, Respondents
• Court: Idaho Supreme Court

185 P. 1076

32 Idaho 551

CLARENCE L. ASHLEY, Appellant, v. GEORGE RICHARD et al., Trustees of SCHOOL DISTRICT No. 76, Respondents

Supreme Court of Idaho

December 8, 1919

EQUITY JURISDICTION TO ENJOIN ISSUANCE OF SCHOOL DISTRICT BONDS-SCHOOL DISTRICT ELECTION CONTESTS.

1. No provision is made in the statutes of Idaho for contesting the result of a special election held to authorize the issuance of the bonds of a school district.

2. In the absence of any other available remedy to prevent the issuance of school district bonds in violation of art. 8 sec. 3, of the constitution, a taxpayer of the district may maintain an action in a court of equity to prevent the unauthorized issuance of such bonds, even though an election contest is involved in the action, in order to determine the lack of authority to issue the bonds.

APPEAL from the District Court of the Ninth Judicial District, for Teton County. Hon. James G. Gwinn, Judge.

Action to enjoin issuance of school district bonds. From a judgment dissolving the temporary injunction and dismissing the action, plaintiff appeals. Reversed.

Reversed and remanded. Costs awarded to appellant.

Arthur W. Holden, Solon Orr and Perky & Brinck, for Appellant.

Injunction is a proper remedy to prevent the officers of a school district from issuing bonds unlawfully. (Marlow v. School District No. 4, 29 Okla. 304, 116 P. 797, 798.)

A taxpayer may restrain illegal action which would increase the burden of taxation. (Gibson v. Board of Supervisors, 80 Cal. 359, 22 P. 225, 227; Nuckols v. Lyle, 8 Idaho 589 592, 70 P. 401.)

Since courts of equity thus interfere by injunction to prevent the illegal issuance of municipal obligations, it follows that they must extend the jurisdiction to the point of investigating and determining the validity of the election under which the proposed action is had. (2 High on Injunctions, 3d ed., sec. 1285.)

In such cases the jurisdiction is exercised, not with a view to contesting the election, but for the purpose of ascertaining whether the contract has been duly authorized in accordance with law. (Winston v. Tennessee & P. R. Co., 1 Baxt. (Tenn.) 60, 67.)

The remedy by contest of election is inadequate. (State v Stearns, 11 Neb. 104, 7 N.W. 743, 745.)

Defects and irregularities inhering in the election itself are frequently passed on by courts of equity in suits to enjoin bond issues based on such election. Question of improper ballot was considered in Hartigan v. Los Angeles, 170 Cal. 313, 149 P. 590. Question of blank and unintelligible ballots was considered in City of Wellsville v. Connor, 91 Ohio St. 28, 109 N.E. 526.

Where disqualified persons voted, and qualified voters' votes were rejected, the issuance of bonds based on such election was enjoined. (Saxton v. Mayor etc. of Delaware City (Del. Ch.), 88 A. 605.) Issue of bonds was enjoined where at the election the city council held that a majority of votes was cast for them but adopted erroneous rule in determining majority. (Sears v. City of Maquoketa, 183 Iowa 1104, 166 N.W. 700.)

A case directly in point on the facts and clearly stating the reasons is Redd v. Board of Supervisors, 31 Gratt. (Va.) 695.

F. L. Soule, for Respondents.

Equity has no inherent power over election contest matters, as they constitute a political question, and in the absence of express power, given by statute or constitution, a court of equity is without jurisdiction in such matters, and where the statute provides a remedy by contest, that remedy is exclusive of equitable intervention. (Rev. Codes, sec. 5026; Toncray v. Budge, 14 Idaho 621, 95 P. 26; Lansdon v. State Board of Canvassers, 18 Idaho 596, 111 P. 133; Scott v. McGuire, 15 Neb. 303, 18 N.W. 93; State v. Carlson, 72 Neb. 837, 101 N.W. 1004; Dickey v. Reed, 78 Ill. 261; McWhirter v. Brainard, 5 Ore. 426; Robinson etc. v. Wingate, 36 Tex. Civ. 65, 80 S.W. 1067; Marsden v. Harlocker, 48 Ore. 90, 120 Am. St. 786, 85 P. 328; Vickery v. Wilson, 40 Colo. 490, 90 P. 1034; Bennett Trust Co. v. Sengstacken, 58 Ore. 333, 113 P. 863; Powers v. Hitchcock, 129 Cal. 325, 61 P. 1076; McCrary on Elections, secs. 436, 437; People v. Elbert District Court, 46 Colo. 1, 101 P. 777.)

The remedy by contest is adequate. (Dickey v. Reed, 78 Ill. 261; Gibson v. Board of Supervisors, 80 Cal. 359, 22 P. 225; Marsden v. Harlocker, 48 Ore. 90, 120 Am. St. 786, 85 P. 328; State v. Carlson, 72 Neb. 837, 101 N.W. 1004.)

RICE, J. Morgan, C. J., and Budge, J., concur.

OPINION

RICE, J.

Appellant commenced this action in the district court to enjoin respondents from issuing certain bonds of a school district. The allegations of the complaint deemed material for the purposes of this opinion are, in substance, as follows: That two-thirds of the qualified electors of the school district who voted at the special election, held for the purpose of authorizing the issuance of the bonds, did not vote in favor thereof; that five persons named in the complaint who voted for the issuance of the bonds, and whose votes were counted therefor, were not qualified electors of the school district and were not entitled to vote at the special election; that the judges and clerks of the election in declaring the result thereof, fraudulently, falsely and corruptly declared that fourteen of the total of forty-four votes had been cast against the proposed issuance of the bonds, when in fact, as the election officers well knew, nineteen votes had been cast against the bonds; that the election officers knowingly and wilfully refused and failed to count, and did not count, five of the nineteen ballots cast against the proposed bond issue; that had the five ballots been counted against the bond issue, and the result of the election declared honestly and in good faith, it would have shown that the proposed bond issue received less than a two-thirds majority, and that if the alleged illegal votes received had been eliminated from the total the proposed bond issue would have been defeated; that notwithstanding the existence of the facts hereinbefore set out, respondents declared the result of the election to be in favor of the issuance of the bonds, and will proceed to advertise, issue and negotiate the same unless enjoined by the court. The complaint also contained allegations of other irregularities in the conduct of the election. Appellant further alleged that he was a resident taxpayer and qualified elector of the school district; that he sues in behalf of the other resident taxpayers of the district, as well as for the benefit of himself, and that in case the bonds should be issued and sold his taxable property in the district would be assessed and taxed for the payment thereof and the interest thereon.

Upon filing of the complaint a temporary injunction was issued by the court. Respondents demurred to the complaint, and moved to strike certain portions thereof. The motion to strike was directed toward the portions of the complaint alleging misconduct of the election officers during the progress of the election, the alleged irregularities in the holding thereof, and the allegations as to the reception of illegal votes and the fraudulent refusal of the election officers to count the legal votes cast against the issuance of the bonds. The demurrer was overruled and the motion denied. Respondents thereupon answered, denying certain allegations of the complaint, but with respect to the portions of the complaint which were specified in the motion to strike, respondents in their answer stated that they elected to stand upon the motion and the demurrer, and refused to further plead.

When the case was called for trial a stipulation was entered into and filed in the case to the effect that in both the trial and appellate courts all material matters of fact set up in plaintiff's complaint, and to which defendants had theretofore objected by their amended motion to strike, were to be deemed admitted without testimony in support thereof if the court finally decided that such matters were not subject to such objection, but in any event all rights under the said amended motion were to be reserved and not waived.

The court entered judgment, dissolving the temporary injunction and dismissing the action. The appeal is from the judgment.

As we understand the effect of the stipulation, it does not alter the situation presented by the pleadings. The demurrer and motion admitted the truth of the allegations of the complaint toward which they were directed, and such allegations were also admitted by failure to deny the same; but the objection that the allegations of the complaint did not confer jurisdiction upon the court is never waived.

It is urged by respondents that the real purpose of the action is to contest an election, and they contend that the statutes provide a method of contesting this election and that the procedure outlined by statute for such contest is exclusive of equity jurisdiction, and that therefore an action for injunction will not lie.

We are of the opinion, however, that our statutes fail to provide the procedure for contesting a school district bond election.

C. S sec. 7274, provides that "the election of any person to any public office, the location or relocation of a county seat, or any proposition submitted to a vote of the people may be contested." In Hertle v. Ball, 9 Idaho 193, 72 P. 953, in construing this section in connection with what is now C. S., sec. 488, it was suggested that provision was not made in our statutes for contesting school district elections. In Toncray v. Budge, 14 Idaho 621, 95 P. 26, it was held that election contests as such were unknown at common law, and all provisions or authority existing within the state for contesting an election were dependent upon ...