Dennis v. Indep. Sch. Dist. of Walker

• Citation: 148 N.W. 1007,166 Iowa 744
• Decision Date: 06 October 1914
• Docket Number: No. 29092.,29092.
• Parties: DENNIS v. INDEPENDENT SCHOOL DIST. OF WALKER ET AL.
• Court: United States State Supreme Court of Iowa

166 Iowa 744

148 N.W. 1007

DENNIS

v.INDEPENDENT SCHOOL DIST. OF WALKER ET AL.

No. 29092.

Supreme Court of Iowa.

Oct. 6, 1914.

Appeal from District Court, Linn County; Milo P. Smith, Judge.

This is a certiorari proceeding brought by the plaintiff in the district court against the school district and its board of directors to have the action of the school board, wherein they seek to condemn certain premises for schoolhouse grounds, reviewed and declared null and void because, as is alleged, the school board exceeded its jurisdiction, power, and authority, under the statute, and otherwise acted illegally. The case was tried upon the record and an agreed statement of facts. The court found in favor of the defendants and dismissed the writ. Affirmed.H. C. Ring and Jamison, Smyth & Hann, all of Cedar Rapids, for appellant.

Voris & Haas, of Marion, for appellees.

PRESTON, J.

There is no dispute as to the facts, some of which are admitted in the answer, others are covered by an agreed statement. It appears that the defendant, the Independent School District of Walker, for 25 years prior to July, 1911, owned and used lots 1 and 2, block 4, in the town of Walker, as a school site. Said lots are each 50 by 147.5 feet in size and contain one-third of an acre. They are within the platted portion of the town. The additional land sought to be condemned is within the corporate limits, but is not within the platted part of the town, and has never been laid out into lots or blocks. About July, 1911, the school board began condemnation proceedings for the purpose of acquiring an additional tract of land to be used for school playground purposes. This tract of land so sought to be acquired was 200 by 400 feet and would contain 1.83 acres. The land sought to be acquired was the property of two owners. One tract (138x400 feet in extent) belonged to Lucinda McCalley, who accepted the award of the referees without objection, and the remainder of the tract (62x400 feet in extent) was the property of the appellant. The land of appellant so taken was less than one-half acre. Said entire tract 200 by 400 feet is claimed by the school district under said condemnation proceedings.

[1] From the award of the referees appeal was taken to the district court and thence to this court and decided in another opinion rendered at the present sitting. The regular size of a full block in the town of Walker is 450 by 300 feet inside of the street lines. A block of that size contains more than 3 acres. The land so condemned including lots 1 and 2 of the original school ground comprises about 2 1/8 acres and is less than a regularly platted block of full size in the town. It is the contention of appellant that by the provisions of section 2814, Code Supplement 1907, the school board had no power or authority to take or hold to exceed one acre of land, except that in a town or village it may include one block. The position of appellee is that the district has power to take and hold real estate in excess of one acre provided the plaintiff consents or does not object thereto. A construction of section 2814, Code Supplement, is necessary. It reads:

“Any school corporation may take and hold so much real estate as may be required for schoolhouse sites, for the location or construction thereon of schoolhouses, and the convenient use thereof, but not to exceed one acre, exclusive of public highway, except in a city, town or village it may include one block exclusive of the street or highway as the case may be: or in districts consolidated under the provisions of section twenty-seven hundred ninety-nine (2799) of the Code, or chapter one hundred forty one (141) of the Laws of the Thirty-First General Assembly, or in school townships holding not more than two school sites, may consist of not to exceed four acres, for any one site, unless by the owner's consent, which site must be upon some public road already established or procured by the board of directors and shall, except in cities, towns, or villages, be at least thirty rods from the residence of any owner who objects to its being placed nearer, and not in any orchard, garden or public park.”

As to this appellant says: The section is divided into two distinct parts applicable to two distinct and separate subjects, the first part of which ends at the colon preceding the word “or” near the end of the fifth line of said section. The first part refers to any school corporation not enumerated in the second part of said section and authorizes the taking and holding by such school corporation for schoolhouse sites not to exceed one acre of land, with the exception that in a city, town or village it may include one block.

The second part, commencing with the said word “or” following the colon in the fifth line of said section, empowers consolidated districts or school townships not holding more than two school sites to take and hold not to exceed four acres, with the exception that by the owner's consent more than four acres may be taken and held.

The Walker School Corporation is authorized to take and hold land for schoolhouse sites under the provisions of the first part of said section only and none other; that the first part of section 2814 as far as the colon is complete in itself, and that there is no necessary connection or dependence between the first and latter half of the section. In this we cannot concur. The entire section ought to be construed together, and that the consent of the owner referred to in the last part of the section has reference to the first part of the section as well as the latter part. We are of opinion that such was the intent of the Legislature. Code, § 2743, provides:

“Each school district now existing shall continue a body politic as a school corporation, unless hereafter changed as provided by law, and as such may sue and be sued, hold property, and exercise all the powers granted by law, and shall have exclusive jurisdiction in all school matters over the territory therein contained.”

Under section 2814, Code Supplement, the school district has power to acquire any amount of real estate necessary for its use. It cannot take without the owner's consent more than the amount limited. But with the owner's consent the amount which may be acquired is not limited, and the district may acquire any amount being necessary for the needs of the district. In a city or town it may take and hold a block. If not in a city or town, it may take and hold an acre. It cannot take more than the block nor more than the acre, as the case may be, unless by the owner's consent. In determining the meaning of section 2814 of the Supplement, as to the power of the district in taking and holding real estate, it is proper to take into consideration preceding legislation on the subject. Section 2814 of the Supplement is practically a re-enactment of prior laws with some additions.

The statute in question first appears in chapter 124, Acts of 13th G. A., and is there as follows:

“That it shall be lawful for any school board in this state, whether of district township or independent district, heretofore organized, or that may hereafter be organized under the laws of this state, to take and hold, under the provisions contained in this act, so much real estate as may be necessary for the location and construction of a schoolhouse, and convenient use of the school: Provided, that the real estate so taken, otherwise than by the consent of the owner or owners, shall not exceed one acre.”

There are other provisions of the act, and section 3 thereof is substantially the same as the present Code, § 2815, relating to condemnation.

The provisions of the act were carried into the Code of 1873, where, as section 1825, it appears as follows:

“It shall be lawful for any district township, or independent district, to take and hold under the provisions contained in this chapter, so much real estate as may be necessary for the location and construction of a schoolhouse and convenient use of the school: Provided that the real estate so taken, otherwise than by consent of the owner or owners, shall not exceed one acre.”

In the Code of 1897, § 2814, eliminating...