Clough v. Osgood

• Decision Date: 12 December 1935
• Parties: CLOUGH v. OSGOOD et al.
• Court: New Hampshire Supreme Court

182 A. 169

CLOUGH

v. OSGOOD et al.

Supreme Court of New Hampshire. Merrimack.

Dec. 12, 1935.

Tranferred from Superior Court, Merrimack County; Lorimer, Judge.

Bill in equity by Belle H. Clough against Elmer B. Osgood and others. The case was transferred without ruling on defendants' demurrer.

Decree for plaintiff.

Bill in equity by a taxpayer resident in that part of the city of Concord included in the Penacook Union school district against persons claiming to act as the school board of the town district of Concord, praying that all votes of the district last named be decreed to be illegal and void, and that the defendants be enjoined from issuing any bonds and borrowing any money to be used in the construction and equipment of a new high school building. Transferred without ruling, upon the defendants' demurrer. The material facts set forth in the bill will be stated in the opinion.

Robert J. Kelliher, of Concord, for plaintiff.

Willoughby A. Colby, of Concord, for

defendants.

PAGE, Justice.

The Penacook school district, composed of a portion of the territory and inhabitants of the city of Concord and of two homesteads in Canterbury, was created by act of the Legislature in 1907. Laws 1907, c. 290. Two years later the Legislature created the Penacook Union school district, composed of the territories and inhabitants of the Penacook school district and the Boscawen special school district. By the terms of the act, the two constituent districts were abolished except for the mere purpose of liquidating their respective debts. Laws 1909, c. 239.

When this act became effective, there was a town district in Concord, but by an act of the Legislature eight years later the town district was annexed to the Union school district of Concord. Laws 1917, c. 347. This act provided that all the property of the town district should become the property of the union district; that the latter should assume all the debts and obligations of the former; and that the latter should be the custodian of the former's records. The town district was not abolished in so many words, but the provisions of the act left no necessity whatever for the continuance of its corporate entity. Therefore there was evidence of legislative intent to effect its dissolution. It does not appear that the town district had any organization or transacted any business after 1917. In any event, the proceedings leading to this bill in equity were apparently based upon the theory that the town district had no existence in the early part of 1935. From 1917 to 1935, the people within the territorial limits of the city of Concord were served by only two districts, both of which were special districts—by the Union school district in all the territory except the Penacook area, and by the Penacook Union school district in that area.

There was introduced in the Senate of 1935 bill No. 42, entitled, "An Act Relative to Penacook Union School District." Section 1 of this bill provided that the territory embraced within the former Boscawen special school district might be "withdrawn" from the Penacook Union school district and "united with the town district of Boscawen." This section, in terms providing for a withdrawal and no more, was nevertheless entitled "Dissolution of District."

Section 2 provided machinery for the calling and holding of a meeting of the residents of the former Boscawen special school district entitled to vote in school matters. Section 3 provided that if the said residents should vote "to withdraw from said union district the procedure for this dissolution of said union district and union with the town district shall be as provided in chapter 119 of the Public Laws, sections 44 to 50, inclusive."

This bill, after amendments were made, was enacted as Laws 1935, c. 313. Sections 1 and 3 of the bill suffered no material change before enactment other than the omission of the provision that the Boscawen territory, if withdrawn, should become a part of the town district of Boscawen. In section 2 two changes were made: (1) The number of Boscawen residents upon whose petition a meeting should be called to act upon the question of withdrawal was increased from three to twenty-five; and (2) it was provided that no valid action could be taken at the meeting unless a majority of the residents entitled to vote in that territory were present and a record of that fact made. Before enactment, a new section was inserted providing that the territory within Concord might be "withdrawn from said union district with the same procedure and in the same manner as hereinbefore set forth for the withdrawal of the Boscawen Special School District." The inhabitants of Concord within the Penacook Union school district did not act under the provisions of this section. Under the provisions of the act, the residents of the Boscawen territory met on July 27, 1935, and voted to withdraw from the Penacook Union school district. All parties to this proceeding appear to agree that the meeting was legally called and held, and no question is raised as to the validity of the withdrawal.

Upon the belief that the withdrawal resulted in the dissolution of the corporate entity of the Penacook Union school district, twelve residents and legal voters of Concord within its limits petitioned a justice of the peace to call a meeting to organize the town school district of Concord. The meeting was called and was held on September 14, 1935; officers were chosen, the defendants were elected members of the school board, appropriations were made for the support of schools, and other business was transacted. At a later meeting of the "town district" on October 17, 1935, it was voted to authorize the issuance of bonds to raise money for the construction and equipment of a new high school building, a building committee was chosen, and other action taken appropriate to the purpose of erecting and equipping the building.

The validity of these votes depends upon the legal existence of the "town district." If, as urged by the plaintiff, the Penacook Union school district has not been dissolved as a corporation by virtue of the withdrawal of the Boscawen territory under the provision of the act of 1935, the new "town district" is legally nonexistent, and all of its votes and doings are void. The question is whether it was the intent of the Legislature to effect the dissolution of the corporation known as the Penacook Union school district, as distinguished from a mere taking away of a part of the territory in which it was authorized to administer the affairs of the schools.

The defendants lean heavily upon the statutes setting up the typical school district organization. For fifty years that typical organization has consisted of a single district in each town. Yet the Legislature has continued to recognize the integrity of districts organized, like the Penacook Union school district, under special acts. Laws 1885, c. 43, § 1; P.L. c. 119, § 1. Every legally organized...