La Duke v. Melin

• Decision Date: 29 April 1920
• Citation: 177 N.W. 673,45 N.D. 349
• Parties: LA DUKE v. MELIN et al., Board of Directors of Ft. Totten School Dist. No. 30.
• Court: North Dakota Supreme Court

45 N.D. 349

177 N.W. 673

LA DUKE

v.MELIN et al., Board of Directors of Ft. Totten School Dist. No. 30.

Supreme Court of North Dakota.

April 2, 1920.

Rehearing Denied April 29, 1920.

Syllabus by the Court.

In this case an election was held for the selection of a schoolhouse site in Ft. Totten school district No. 30, in Benson county. One site received 51 votes and another site received 22 votes. The election board refused to count the 51 votes on the ground that the site designated by them was within the boundaries of the Ft. Totten military reservation (also, that 30 of such 51 votes were cast by persons residing within said military reservation), and declared that the site designated by the 22 voters was the site chosen at such election. La Duke, a taxpayer and elector in such school district, instituted an election contest. He caused notice of contest, setting forth fully the grounds on which he assailed the findings of the election board, to be served on the proper parties. Such parties appeared and answered on the merits. Later the plaintiff and defendant entered into a stipulation of facts, and submitted the matter to the district court for determination on the merits. No objection was made in the trial court to the procedure adopted.

It is held:

That the defendants cannot raise the question in the Supreme Court that plaintiff has chosen the wrong remedy.

That the Ft. Totten Military Reservation has been abolished by the federal government, and that the lands formerly included therein are no longer within the exclusive governmental and political control of the United States.

That the state may rightfully exercise political and governmental control over lands formerly within such military reservation, and reserved by the United States for Indian school and Indian agency purposes, to the extent of including them within its political subdivisions for political and governmental purposes.

That persons residing on the lands so reserved, and otherwise qualified to vote, are entitled to vote at an election in the school district in which such lands are included.

That a schoolhouse site located on such lands is within the school district, and may be legally selected by the voters of the district.

Appeal from District Court, Benson County; Burr, Judge.

Election contest by Frank La Duke against A. A. Melin and others, as the Board of Directors of Ft. Totten School District No. 30, a public corporation. Judgment for plaintiff, and defendants appeal. Affirmed.

W. M. Anderson and H. S. Blood, both of Devils Lake, for appellants.

Wardrope & Butterwick, of Minnewaukan, for respondent.

CHRISTIANSON, C. J.

This controversy involves the selection of a schoolhouse site in Ft. Totten school district No. 30, in Benson county, in this state. The matter was submitted to the district court upon stipulated facts. From the stipulated facts it appears that the territory which was embraced within the Ft. Totten military reservation is wholly within the boundaries of the school district; that at the election to select the schoolhouse site 51 ballots were cast for a site situated on land which formed a part of such military reservation and 25 ballots were cast for a site on land within the school district but outside of such military reservation; that 30 of the 51 votes cast for the site located on land within said military reservation were cast by persons who at the time of such election resided upon territory which formed a part of said military reservation. The election board rejected all ballots cast for the site located within the boundaries of the military reservation, and in its return certified that the site located outside of such boundaries had received a majority of all the legal votes cast at said election. Thereupon the plaintiff, who is a duly qualified elector and taxpayer in said school district and a patron of the public schools thereof, instituted a contest. The defendants, members of the board of directors of said defendant school district, appeared and answered. The parties thereupon submitted the matter to the district court for determination upon a stipulated statement of facts. The district court held that the election board erred in rejecting the ballots cast for the site situated within the military reservation, and that such site had received a majority of the legal votes cast at the election. Judgment was entered accordingly, and defendants have appealed.

Appellants contend: (1) That a contest will not lie in a case like the one at bar; (2) that persons who reside upon the Ft. Totten military reservation are not electors under the laws of this state; (3) that the proposed schoolhouse site within the Ft. Totten military reservation is not in fact within the school district.

[1] We do not find it necessary in this case to determine whether a contest will lie as to an election for the selection of a schoolhouse site. The district court is a court of general jurisdiction. Manifestly it was the tribunal in which any proceeding to set aside the findings of the election board must be instituted. The plaintiff caused notice of contest to be served upon the defendants. The defendants appeared and answered. Thereafter the parties entered into a stipulation of facts which they submitted to the trial court and asked that court to determine the questions of law arising upon the facts so stipulated. Hence the trial court had jurisdiction of both the parties and the subject-matter. So far as the record shows, no objection was made in any manner in the court below to the form of the remedy. It is well settled that in these circumstances the defendants cannot now raise the question that the plaintiff should have pursued another remedy. Lobe v. Bartaschawich, 37 N. D. 572, 164 N. W. 276;Minneapolis, St. P. & S. Ste. M. R. Co. v. Stutsman, 31 N. D. 597, 154 N. W. 654; 3 C. J. 723, 750.

[2] The land constituting the Ft. Totten military reservation was part of the territory acquired in 1803 by cession from France. The military reservation was created by executive order in 1867. The Devils Lake Indian Reservation, which was created the same year, included the military reservation within its outer boundaries. Later certain changes were made in the boundaries of the military reservation, the last change being made in 1887. The military reservation, as so defined, contained 9,000 acres. During all of this time the reservation was within the territory of Dakota, and the jurisdiction of the United States was necessarily paramount. In 1889 Congress provided:

“For the division of Dakota into two states, and to enable the people of North Dakota, South Dakota * * * to form Constitutions and state governments, and to be admitted into the Union on an equal footing with the original states.” See Enabling Act.

No provision was made in such act of Congress for the retention by the United States of political authority, dominion, and legislative power over any of the so-called military reservations. The Constitution of North Dakota, however, provided:

“Jurisdiction is ceded to the United States over the military reservations of Ft. Abraham Lincoln, Ft. Buford, Ft. Pembina and Ft. Totten, heretofore declared by the president of the United States; provided, legal process, civil and criminal, of this state, shall extend over such reservations in all cases in which exclusive jurisdiction is not vested in the United States, or of crimes not committed within the limits of such reservations.” Const. N. D. § 204.

There is nothing to show that any application was made by the United States for such constitutional provision, but, as it conferred a benefit, the acceptance thereof is to be presumed in the absence of any dissent on their part. Ft. Leavenworth R. R. Co. v. Lowe, 114 U. S. 525, 5 Sup. Ct. 995, 29 L. Ed. 264, 265.

It appears that the Ft. Totten military reservation ceased to be used for military purposes by the War Department in 1882, and has not since been so used. It further appears that the Secretary of War, by an order issued October 1, 1890, placed the abandoned barracks and other buildings at the disposal of the Secretary of the Interior for Indian school purposes, and that ever since that time the Secretary of the Interior, through the Bureau of Indian Affairs, has had full control over such buildings, and that the same have been utilized for the purpose of conducting an Indian school therein.

In 1901 the Indians made a treaty with the United States by the terms of which they did-

“cede, surrender, grant, and convey to the United States all their claim, right, title, and interest in and to all that part of the Devils Lake Indian Reservation now remaining unallotted, including the tract of land at present known as the Ft. Totten military reserve, situated within the boundaries of the said Devils Lake Indian Reservation, and being a part thereof.”

By act of Congress approved April 27, 1904 (chapter 1620, 33 Stat. 319), such treaty was modified...