Bd. of Educ. of Sch. Dist. No. 5 In San Juan County v. Patton

• Decision Date: 31 December 1938
• Docket Number: No. 4430.,4430.
• Citation: 86 P.2d 277,43 N.M. 107
• Parties: BOARD OF EDUCATION OF SCHOOL DIST. NO. 5 IN SAN JUAN COUNTY et al.v.PATTON, Atty. Gen.
• Court: New Mexico Supreme Court

43 N.M. 107

86 P.2d 277

BOARD OF EDUCATION OF SCHOOL DIST. NO. 5 IN SAN JUAN COUNTY et al.

v.PATTON, Atty. Gen.

No. 4430.

Supreme Court of New Mexico.

Dec. 31, 1938.

Appeal from District Court, Santa Fé County; David Chavez, Jr., Judge.

Action by the Board of Education of School District No. 5 in San Juan County, the members thereof, and others, against Frank H. Patton, Attorney General, for a declaratory judgment approving a school bond issue. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Statutory provisions, merely regulating exercise of school district's right or power to borrow money and not nullifying proceedings for bond issue, such as provision that not more than one election shall be held in any two consecutive years, are controlled by statute limiting time for institution of suit to contest validity of such proceedings to 10 days after publication of certificate of election result. Comp.St.1929, §§ 120-702, 120-709, 120-711, 120-712.

Richard E. Manson, Asst. Atty. Gen., for appellant.

G. W. R. Hoy, of Farmington, and Geo. F. Bruington, of Aztec, for appellees.

HUDSPETH, Chief Justice.

The Attorney General refused to approve a school bond issue. The Board of Education brought this suit under our declaratory judgment statute, Ch. 143, L. 1935. Judgment went for plaintiffs on the pleadings and the Attorney General appeals.

Appellant states: “The sole question presented on this appeal is the effect of Section 120-702, New Mexico Statutes Annotated, 1929 Compilation, when more than one school bond election has been held in a period of two years. The procedure for initiating a school bond issue is set out in Article 7, Chapter 120, New Mexico Statutes Annotated, 1929 Compilation, of which the controversial section is a part. Generally, the statute provides for the form and maturity of the bonds, form and sufficiency of the petition to initiate the election, and for the notice and conduct of the election. The petition requesting the election was sufficient, proper notice was given, and the election regularly conducted according to the mandates of Article 7, Chapter 120, supra. However, the election held on May 24, 1938, and the election now in controversy, was held less than two years after another regular and valid election, the result of which school bonds of the district were issued and sold. This, appellant contends, was in direct contravention of the plain provisions of Section 120-702, supra, which rendered the election void. Section 120-702, supra, after listing the essentials of the petition requesting a school bond election, concludes in the following language: ‘Two separate questions may be submitted in the petition for election and in the election, in which case the vote thereon shall be separately counted, canvassed and certified, but not more than one such election hereunder shall be held in any two consecutive years.”’

Appellant cites Norton v. Coos County, 113 Or. 618, 233 P. 864; City of Graymount v. Scott, 160 Ala. 570, 49 So. 683; State v. Ellison, 271 Mo. 123, 196 S.W. 751; 56 C.J., secs. 702, 706, pp. 585,588, and other authorities. These decisions construe statutes of other states containing language of similar import to the quoted portion of sec. 120-702, but without provisions similar to secs. 120-711 and 120-712, a part of the same act, which sections are:

“Any time prior to five days preceding the day set for an election, but not afterwards, any person or corporation may attack the validity of the petition asking for the election or the resolution approving said petition, or both, by action in the district court of the county of the district affected and the court shall have power to require appearance and answer therein in such time as it shall elect. All such cases shall take precedence over all other court business.”

“Any person or corporation may institute in the district court of the county of the district affected an action or suit to contest the validity of all proceedings taken subsequent to those mentioned in the last preceding section, but no such suit or action shall be maintained unless the same be instituted within ten days after the publication of the certificate specified in section 709 (120-709)hereof.”

In the case of C. E. Mann v. Board of Education of the City of Artesia et al., 43 N.M. 78, 85 P.2d 595, recently decided, we held: “But the enactment of this section [120-702] of the School Code in 1923 created no new right in school districts as respects the mere power to borrow money. *** It is thus seen to be not a part of the right or power...