Dartmouth Sav. Bank v. School Dists. Nos. 6 and 31

• Decision Date: 10 October 1889
• Docket Number: 6 and 31.
• Citation: 43 N.W. 822,6 Dakota 332
• Parties: Dartmouth Sav. Bank v. School-Dists.
• Court: North Dakota Supreme Court

43 N.W. 822

6 Dakota 332

Dartmouth Sav. Bank v. School-Dists.

Nos. 6 and 31.

Supreme Court of Territory of Dakota

October 10, 1889

Appeal from district court, Minnehaha county.

Bailey & Davis, for appellants. Wynn & Young, for respondent.

TRIPP C. J.

This is an action to recover upon a bond and its interest coupons alleged to have been issued by school-district No. 64 Minnehaha county, Dak. The complaint, in substance, alleges that school-district No. 64 was duly organized from portions of school-districts Nos. 6 and 31 of said county; and that as such corporation duly organized, it issued by its proper officers the bond in controversy, among others, to aid in the construction of a school-house for said school-district No 64, in accordance with the statute in such case made and provided; that plaintiff became and is now the owner and holder of such bond for value before maturity; that said district No. 64 has been dissolved, and that said defendant districts, 6 and 31, are the successors thereof. The principal defense set up and relied upon by the defendants is that said district 64 was never organized; that it never had any legal existence; and that the issue of said bond was without authority of law, and therefore illegal and void. The issues were submitted to a referee, and the court, upon the report of the referee, made findings of fact and conclusions of law sustaining the organization of district 64, and rendered judgment for the plaintiff. Exceptions were duly taken to the findings and conclusions of law, and from the judgment so entered the defendants appeal to this court.

An inspection of the bill of exceptions and the record of the case shows that long prior to the execution and issue of the bond in controversy defendants were duly-organized school-districts of Minnehaha county, numbered 6 and 31, respectively; that on the 12th day of March, 1879, the superintendent of schools of the county of Minnehaha claimed to have formed school-district 64 from a part of said districts 6 and 31; that subsequently a number of the citizens of said school-district 64 met together and elected officers, voted taxes, etc.; that subsequently the officers so elected executed and issued the bond in question, with others, for the purpose of erecting a school-house in said district 64; that said school-house was subsequently erected with the proceeds of such bonds, and that subsequently to the issue of said bond, upon an appeal from the action of the county superintendent of schools to the board of county commissioners, as provided by statute, the proceedings of the superintendent of schools creating such school-district 64 were reversed, and the territory carved out of districts 6 and 31 was again restored to them. It does not appear from the record which district, upon the dissolution of district No. 64, obtained the house erected with the proceeds of the bonds, or what, if any, use was ever made of it by such district. The statute then in force as to organization of new districts by the county superintendent of schools provides as follows: "Districting the County. That it shall be the duty of the county superintendent of schools, in addition to other duties required of him, to divide his county into school-districts, subdivide and rearrange the boundaries of the same, when petitioned by a majority of the citizens residing in the district or districts to be affected by said change, and to furnish the county commissioners of such county with a written description of the boundaries of each district, which description must be filed in the register of deeds' office before such district shall be entitled to proceed with its organization by the election of school-district officers; and it shall be his duty to keep on file in his office all petitions and remonstrances, which shall show the date of reception and the action had thereon; and it shall be his further duty, on the division of or change of district boundaries, to notify the clerk of the districts interested of the change made." Section 10, c. 40, Pol. Code 1877. The only evidence of the creation of school-district No. 64 was an extract from a book kept by the county superintendent of schools, designated as the "Book of Records of the Formation of School-Districts," which reads as follows: "School-District No. 64. 1879, March 12.--Formed of sections S. E. 1/4 section 28, S. 1/2 of sections 26 & 27; all of sections 34 & 35; the east 1/2 of section 33, township 101, range 48. Not in separate existence. Is now merged in districts 6 & 31." The statute did not then require the keeping of such a record. There were also some entries in records of school-districts 6 and 31, of similar character. No petition to the superintendent of schools, of citizens of the districts to be affected by the change, nor any written description of the boundaries of the districts filed in the register of deeds' office, was offered in evidence, and no parol or other evidence was offered, except as above stated, to prove that district 64 was ever created or organized, except in so far as the production of the bond and proof of its execution tended to do so, and the record of the district meeting at which the tax was voted and officers elected. On the other hand, after the plaintiff had rested its case, the defendants offered to prove that no such petition was ever in fact presented to the superintendent of schools. and this offer was rejected by the court and referee, but upon what ground the record does not disclose.

From an examination of section 10, supra, and other sections of the school law in force when the bond in controversy was issued it will be observed that the county superintendent of schools was vested with power to create and change the boundaries of school-districts within his county in the manner and under the conditions prescribed by the statute. It was not intended by the legislature, nor can any interpretation of the statute be given, to allow him the arbitrary power of making and unmaking districts at will; and whatever may be the extent of his power or the effect of his decision in creating new districts from those already formed, and whether such power was merely ministerial or quasi judicial in character, it is clear that it could not be brought into exercise, except in the manner pointed out by the statute, and upon the happening of those events or the performance of those acts which gave him jurisdiction in the premises. Two things are specifically required to be done before the citizens of any proposed district can meet and organize: First, "a majority of the citizens residing in the district to be affected by the change must petition the county superintendent of schools;" and, second, "the county superintendent of schools must furnish the county commissioners with a written description of the boundaries of each district, which description must be filed in the register of deeds' office." And these requirements are not left for the courts to construe as mandatory, for the legislature has made them so by express enactment, saying they shall be done "before such district shall be entitled to proceed with its organization." Can it be said, in the face of such a statute, that the presentation of a petition and the furnishing and filing of a description of the school-districts are merely directory, and that a failure to comply with such requirements is a mere irregularity? If there were no good reason for such legislation, its meaning could hardly be mistaken; and, were the language of the statute doubtful, courts would be slow to give it a construction different from what its present language makes plain and unmistakable. It could never have been a supposed intention of the legislature that county superintendents of schools should make and unmake districts without regard to the wishes or will of those to be affected thereby. The petition of a majority of the citizens residing in the district to be affected by the change is the prerequisite to the exercise of his jurisdiction; and, without expressing any opinion or intimation as to how far any action of his in determining when such petition contains a majority, as required by the statute, or when such change shall or shall not be made, is or may be final, except in so far as it may be reversed on appeal by the board of county commissioners, we are clearly of the opinion that, in absence of such petition, his action is without jurisdiction, and is void. He is vested with power to act upon presentation of a petition, and not otherwise. As well might a justice of the peace or other tribunal render judgment against persons or property without issue of process. The making and presentation of the petition to him is a jurisdictional fact, which must be established when denied, and required to be proved, to give validity to the judgment or decision relied upon as ultimate proof of the matter in issue. The statute requires such petition to be filed in the office of the superintendent of schools, and he is required to enter thereon his action in the premises. In this case, not only was no such petition offered in evidence, and no attempt made to account for its loss, if it ever existed, but, when the superintendent of schools is presented as a witness in the case, no question is attempted to be asked him as to whether in fact such petition...