De Berg v. County Bd. of Ed. of Butler County, 49162

• Decision Date: 07 May 1957
• Docket Number: No. 49162,49162
• Citation: 248 Iowa 1039,82 N.W.2d 710
• Parties: Ted DE BERG, Hazle DeBerg, Joseph B. Kyle, L. P. Kyle, Berniece Kyle, Gene Reser, Mrs. Gene Reser, Mrs. Dick Van Horn, Dick Van Horn, Chas. Zimmerman, Jane Zimmerman, Ben Stubbe, Don Stanbrough, Eilard Muller, Paul Mason, Blythe Mason, Harm Hovenge, B. H. Boyd, Stanley Roose, Elizabeth Roose, Siebert F. Arends, Eva Arends, John Schwennen, Jr., John Weiland, and Roy Tindall, Appellants, v. COUNTY BOARD OF EDUCATION OF BUTLER COUNTY, Iowa; and Superintendent K. R. Rowley, County Superintendent of Schools, Butler County, Iowa; County Board of Education of Floyd County, Iowa; Mrs. Wilbur Forsyth, President of the Floyd County Board of Education; Fannie Howell, County Superintendent of Schools, Floyd County, Iowa; State Superintendent of Public Instruction for the State of Iowa; State Board of Public Instruction of the State of Iowa, Appellees.
• Court: Iowa Supreme Court

Page 710

82 N.W.2d 710

248 Iowa 1039

Ted DE BERG, Hazle DeBerg, Joseph B. Kyle, L. P. Kyle, Berniece Kyle, Gene Reser, Mrs. Gene Reser, Mrs. Dick Van Horn, Dick Van Horn, Chas. Zimmerman, Jane Zimmerman, Ben Stubbe, Don Stanbrough, Eilard Muller, Paul Mason, Blythe Mason, Harm Hovenge, B. H. Boyd, Stanley Roose, Elizabeth Roose, Siebert F. Arends, Eva Arends, John Schwennen, Jr., John Weiland, and Roy Tindall, Appellants, v. COUNTY BOARD OF EDUCATION OF BUTLER COUNTY, Iowa; and Superintendent K. R. Rowley, County Superintendent of Schools, Butler County, Iowa; County Board of Education of Floyd County, Iowa; Mrs. Wilbur Forsyth, President of the Floyd County Board of Education; Fannie Howell, County Superintendent of Schools, Floyd County, Iowa; State Superintendent of Public Instruction for the State of Iowa; State Board of Public Instruction of the State of Iowa, Appellees.

No. 49162.

Supreme Court of Iowa.

May 7, 1957.

For Supplemental Opinion on Rehearing see 83 N.W.2d 734.

DeWolf, Goodman & Huisman, Grundy Center, for appellants.

Zastrow, Noah & Smith, and Jack Frye, Charles City, and James H. Graven, Greene, for appellees.

PETERSON, Justice.

On February 7, 1956, a petition was filed with the County Superintendent of Schools of Butler County, Iowa, in accordance with Section 275.11, Iowa Code 1954, I.C.A., requesting the establishment of a consolidated school district to be known as 'The Community School District of Greene, Butler County, Iowa'. The proposed boundaries of the territory to be included in the district were properly described. Almost all territory involved, which included the town of Greene, was in Butler County. A small portion of the territory was in Floyd County and it became necessary to have joint action by the County Boards of Education of both counties. The proper statutory notices were given and meetings held to hear objections. The boundaries of the proposed district were duly approved. There were seven voting districts in the area involved. The proposal for consolidation carried in six districts and failed in one. The district in which it failed was known as Coldwater township, located in Butler County. This township is in the center of the proposed consolidation area. Districts one and four are west of Coldwater township, which is known as district five, and districts two, three, six and seven are east of the township. This destroys contiguity of territory, there being a distance of 4 miles between the two areas. Even though the proposal did not carry in Coldwater township the County Boards of Education of Butler and Floyd counties met in joint session and by resolution held the establishment of the new community school district carried, and included in the new district all territory involved in the area except Coldwater township. The County Superintendent of Butler County purporting to act on his own behalf and on behalf of the County Board of Education of Butler County published a notice of election of Directors in the proposed consolidated district, exclusive of Coldwater township. This certiorari action was then started by the twenty-five plaintiffs who are citizens and residents of District four. This is the non-contiguous section of the proposed new Community School District of Greene. They allege the formation of the district is illegal because all parts of the district are not contiguous, being separated by the 4 mile area in Coldwater township. On Order of Court and proper notice the case was tried. The trial court dismissed the petition, holding the six districts in the proposed consolidated school area could form themselves into the new Community School District. Plaintiffs have appealed.

There is another matter involved in this case which is somewhat novel. On July 2, 1956, two new petitions were filed in the office of the County Superintendent of Schools of Butler County. One petition was signed by ten or more legal voters of the six voting districts in the proposed school consolidation area which had approved the proposal at the previous election. The other petition was signed by ten or more legal voters of the Coldwater township school district. This was a proceeding commenced in accordance with the provisions of Section 275.10, providing for merger of two districts. By concurrent action of the two Boards August 10th was fixed as the time for holding the election. Notices were posted and published and at the election the proposal carried in both districts. The result of this procedure and action is that all seven districts originally involved in the proposal for establishment of the consolidated district to be known as 'Greene Community School District' are now in the district. After this procedure was concluded defendants filed on September 17, 1956, what they called an Amendment to the record in the certiorari case. With the Amendment they filed certificate of the County Superintendent of Schools of Butler County showing in detail the supplemental proceedings as above outlined. This Amendment requested that the trial court, in connection with settlement of the record as to appeal, include such supplemental proceedings. Plaintiffs filed motion to strike defendants' purported Amendment on several grounds, the principal ones being: 'That the purported amendment is clearly directed to only extraneous and foreign matter to this appeal proceeding', and 'That the purported amendment seeks to set forth for the first time materials of an affirmative defense on appeal, not properly within the proceedings or in any manner properly or timely raised upon the trial.' The trial court sustained the motion on both grounds. However, even though not included in the record as settled by the trial court, defendants filed Supplemental Record showing the Amendment, Motion, Order of Court, and certificate of the County Superintendent. The claim of defendants now is that in view of such supplemental procedure the case has become a moot controversy. They allege the original proposal as to consolidation has now been fully consummated by the new procedure and no question remains to be decided by this court.

We present a sketch of the proposed consolidated district. The districts originally filing petitions for consolidation are numbered 1 to 7. Coldwater township, district 5, is the shaded area. The district is somewhat irregular, but in general it is 18 miles long at longest point, and 11 1/2 miles wide at widest point.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

I. Pertinent parts of Section 275.10 and all of Section 275.11, both Iowa Code 1954, I.C.A., the two Sections involved in this action, are as follows:

'275.10--Proposals affecting two districts. Pursuant to county plan and upon the approval of the county board of education, the boards of directors of any two school districts which have a common boundary shall by concurrent action merge such districts * * * provided however, that a written request for such action is filed prior thereto by any ten legal voters residing in each of said districts * * * with their respective board of directors, and the proposed boundary changes are approved by the legal voters in each of said districts * * *'

'275.11--Proposals involving three or more districts. Subject to the approval of the county board of education contiguous territory located in three or more school districts may be united into a single district in the manner provided in sections 275.12 to 275.23 hereof.'

Sections 275.12 to 275.23 provide for filing of petitions signed by at least one-third of the voters in each district, details as to hearings fixing boundaries, and procedure as to election, canvass of votes, and returns of election results.

When the election as to consolidation failed, one of three situations was present as to the six districts in question: (1) they were either a de jure corporation, or (2) a de facto corporation, or (3) no corporation.

We can quickly settle the first question. In accordance with our recent decision of State ex rel. Warrington v. Community School District of St. Ansgar, Iowa, 78 N.W.2d 86, they were not a de jure corporation.

Was there a de facto corporation on which they could build a legal consolidation? In the matter of business corporations we have defined a de facto corporation in First Title & Securities Co. of Bloomington, Ill. v. United States Gypsum Co., 211 Iowa 1019, 233 N.W. 137, 140, 73 A.L.R. 1196, as follows: 'A de facto corporation exists so that the legality of its subsistence cannot be attacked collaterally, where (1) there is a special act or general law under which such a corporation may lawfully live, [Emphasis ours] (2) a bona fide attempt to organize under the law in colorable compliance with the statutory requirements, and (3) actual user or exercise of corporate powers in pursuance of such law and attempted organization.' Supported by many citations. Substantially the same definition appears in 13 Am.Jur., Corporations, § 49; and in 18 C.J.S. Corporations § 99. As a general principle this definition is as effective in connection with school corporations as in the field of business.

We have not passed on the question directly as to school districts, but general law and decisions in other states support this position. 78 C.J.S. Schools and School Districts § 52; Dean v. Board of Education, 247 Ky. 553, 57 S.W.2d 477; State ex rel. Consolidated Dist. No. 13, New Madrid County v. Smith, 337 Mo. 874, 86 S.W.2d 943. We quote from 78 C.J.S. Schools and School Districts, supra: '* * * where there is no law authorizing the creation of the district it cannot become a de facto district'.

Referring to the elements of a de facto corporation as outlined in First Title & Securities Co. of Bloomington, Ill. v. United States Gypsum Co., supra, the first qualification for such a corporation is decisive of the question that defendants did not have a de facto corporation. There is no special...