Des Moines Independent Community School Dist. v. Armstrong

• Decision Date: 10 March 1959
• Docket Number: No. 49674,49674
• Citation: 95 N.W.2d 515,250 Iowa 634
• Parties: DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT, Appellee, v. O. E. ARMSTRONG, J. F. Baillie, B. E. Newell, Nels Lund, and E. W. Armel, Board of Supervisors, Homer Adcock, County Auditor, and Vincent L. Browner, County Treasurer, all of Polk County, Iowa, Appellants.
• Court: Iowa Supreme Court

Page 515

95 N.W.2d 515

250 Iowa 634

DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT, Appellee, v. O. E. ARMSTRONG, J. F. Baillie, B. E. Newell, Nels Lund, and E. W. Armel, Board of Supervisors, Homer Adcock, County Auditor, and Vincent L. Browner, County Treasurer, all of Polk County, Iowa, Appellants.

No. 49674.

Supreme Court of Iowa.

March 10, 1959.

Norman A. Erbe, Atty. Gen., Leonard C. Abels, Asst. Atty. Gen., Ray Hanrahan, County Atty., and A. R. Shepherd, Asst. County Atty., Des Moines, for appellants.

Herrick & Langdon, Des Moines, for appellee.

GARFIELD, Justice.

The question presented is whether section 297.5, Codes 1954, 1958, I.C.A., permits the directors of plaintiff Des Moines Independent Community School District to certify, and--if certified--requires defendant county board of supervisors to levy, an annual tax not exceeding one mill to be placed in the schoolhouse fund and used for the purchase of schoolhouse sites. The district court, on agreed facts, gave an affirmative answer to this question. We approve the decision.

In the past the directors of plaintiff district certified the amount of $125,000 to defendant board of supervisors who levied a tax in such amount to be placed in the schoolhouse fund and used for the purchase of sites for plaintiff district. On November 29, 1957, the state attorney general issued an opinion that this may not be done because plaintiff is not an 'independent' district. Defendant board then denied plaintiff's directors were entitled to certify an amount and require it to be levied as a tax for the schoolhouse fund. This action was thereupon commenced for a declaratory judgment that plaintiff's board is entitled to proceed as in the past in certifying and causing the tax to be levied.

Effective July 1, 1957, Des Moines Independent School District was enlarged by the inclusion of Elm Grove Rural Independent School District. In the election on the proposition whether such enlarged district should be established containing the territory then included in the two districts 63 ballots were cast in the Elm Grove district and 11,016 in the Des Moines district.

Section 297.5, Codes, 1954, 1958, I.C.A., under which plaintiff claims the right to certify, and cause defendant board to levy, the tax in question provides: 'The directors in any independent district whose territory is composed wholly or in part of territory occupied by any city may, * * * certify an amount not exceeding one mill to the board of supervisors, who shall levy the amount so certified, and the tax so levied shall be placed in the schoolhouse fund and used only for the purchase of sites in and for said school district.'

It is not questioned that the territory of plaintiff district is composed wholly or in large part of territory occupied by the City of Des Moines. Defendants insist, however, that after enlargement of the Des Moines district by inclusion of the Elm Grove district--which doubtless was the establishment of a new district--plaintiff is a community district, not an independent one, within the meaning of section 297.5.

We now set out section 274.2 which plaintiff claims, and the trial court held, makes section 297.5 applicable to plaintiff regardless of whether it is an independent district. It is in Code, chapter 274, I.C.A., entitled 'School District in General.' Section 274.2 provides: 'The provisions of law relative to common schools shall apply alike to all districts, except when otherwise clearly stated, and the powers given to one form of corporation, or to a board in one kind of corporation, shall be exercised by the other in the same manner, as nearly as practicable. But school boards shall not incur original indebtedness by the issuance of bonds until authorized by the voters of the school corporation.' (Emphasis added.)

I. Considering first the effect of 274.2, it seems plainly to be that where the board of one kind of school corporation is given power by statute the power shall be exercised by boards of other kinds of school corporations in the same manner, 'as nearly as practicable.' It is obvious 274.2 does not extend the rights conferred by 297.5 to the board of a district not composed in whole or part of a city. Such extension would clearly not be practicable. It would seem, however, 274.2 does make 297.5 available to plaintiff's board unless this is not practicable. It appears entirely practicable for such a district as plaintiff to certify and cause to be levied the tax in controversy here. We see no fair basis for concluding that the language of 274.2, 'as nearly as practicable,' limits the power of plaintiff in the respect here questioned.

'Practicable' means capable of being performed or effected; feasible; possible. 72 C.J.S., pages 467-468; Webster's New International Dictionary. See also Gifford v. New Amsterdam Cas. Co., 216 Iowa 23, 24, 248 N.W. 235. Webster lists 'impossible' as one of two antonyms for 'practicable.' Section 274.2 requires only that other kinds of school corporations exercise the powers conferred on any one kind 'as nearly as practicable.' Complete practicability is not exacted.

Consolidated School District of Glidden v. Griffin, 201 Iowa 63, 66, 206 N.W. 86, 87, involves a question somewhat analogous to the one here. There section 4230, Code, 1924 (now, with an addition not here material, section 279.14, Codes, 1954, 1958, I.C.A.), provided 'The board of directors of any independent school district or school township where there is a township high school shall have power to employ a superintendent of schools for one year. After serving at least seven months, he may be employed for a term of not to exceed three years.' It was claimed 'a consolidated district is not an independent school district within the meaning of this section.' The opinion refers to section 4124, Code, 1924 (now section 274.6, Code, 1958, except that the names of community school district have been added), setting out the names by which school corporations shall be designated, and to what is now section 274.2 (4190, Code, 1924), quoted above, and goes on to hold:

'The law in force at the time the present district was organized would make the plaintiff a consolidated independent school district. Section 4230 authorizes the employment of a superintendent. It is the only section that does. It is not denied that a consolidated district may employ a superintendent. Such power seems to be conceded. If it may, by statutory authorization, employ a superintendent at all, it is by force of this section; and, as the authority is granted only to independent districts and to school townships having high schools, the consolidated district is necessarily an independent district within the meaning of the section. The authority granted is to employ a superintendent for a term not to exceed three years if he has served at least seven months. The thought of the section seems to be that townships having no high school would not be expected to employ a superintendent, and that districts other than school townships are independent districts. We are therefore of the opinion that the employment in question was authorized.'

The Griffin decision is approved and the language just quoted is repeated in Hahn v. Clayton County, 218 Iowa 543, 549-550, 255 N.W. 695. It is also cited in Rural Independent School Dist. No. 3 v. McCracken, 212 Iowa 1114, 1123, 233 N.W. 147, 151, for the proposition, 'A consolidated school district classifies for some purposes as an independent district.' Grant v. Norris, 249 Iowa ----, 85 N.W.2d 261, 268, says the successor to the consolidated district is commonly called 'community.'

In contending section 274.2 does not make available to plaintiff the right to certify and have levied the tax provided for by 297.5 defendants rely heavily upon Ferguson v. Brick, 248 Iowa 839, 82 N.W.2d 849, 850. We think there is a vital distinction between the cited case and this. In the former the question was whether a statute providing for removal from office of elected officials, found in the chapter titled 'Commission form of municipal government,' is applicable to officials of the Council-Manager form. It was contended the statute is made applicable to officals of the latter form of government by Code, 1954, section 363C.14, I.C.A., which states: 'Unless otherwise specifically provided by statute, all laws which are applicable by their terms to all cities and towns shall be applicable to cities under the city manager plan * * *.' (Emphasis added.) Section 368.42, similar to 363C.14, was likewise relied upon.

We held the removal provision is not one applicable by its terms to all cities and towns but is limited to officials of the commission form of city government. We also pointed out that the removal statute requires the petition for removal to be signed by a certain number of electors based upon the vote for mayor at the last election and under the council-manager form, unlike the commission form, there is no vote for mayor. Here section 274.2 specifies that except when otherwise clearly stated the powers given one form of school corporation or a board in one kind of corporation shall be exercised by the other, as nearly as practicable. This statute is unlike those involved in Ferguson v. Brick, supra, in that it does not provide powers given all school corporations are exercisable by some designated kind of corporation.

Nothing in Cook v. Consolidated School Dist., 240 Iowa 744, 38 N.W.2d 265, is inconsistent with our decision here. Indeed the Cook opinion quotes what is now section 274.2 (4190, Code, 1935) and says it 'applies to all common school districts referred to therein, including consolidated districts.' At pages 758-759 of 240 Iowa, at page 272 of 38 N.W.2d. As defendants assert in argument, consolidated districts are the predecessors of community districts. And the above language from the Cook case regarding the former is equally applicable to...