Fractional Sch. Dist. No. 1 of Barry Tp. v. Twp. Sch. Dist. of Barry Tp.

• Decision Date: 06 June 1932
• Docket Number: April Term.,No. 154,154
• Citation: 259 Mich. 75,242 N.W. 843
• Parties: FRACTIONAL SCHOOL DIST. NO. 1 OF BARRY TP. et al. v. TOWNSHIP SCHOOL DIST. OF BARRY TP. et al.
• Court: Michigan Supreme Court

259 Mich. 75

242 N.W. 843

FRACTIONAL SCHOOL DIST. NO. 1 OF BARRY TP. et al.

v.TOWNSHIP SCHOOL DIST. OF BARRY TP. et al.

No. 154, April Term.

Supreme Court of Michigan.

June 6, 1932.

Appeal from Circuit Court, Barry County; Russell R. McPeek, Judge.

Quo warranto by the Fractional School District No. 1 of Barry Township and others against the Township School District of Barry Township and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Argued before the Entire Bench.

POTTER, J., dissenting.

Carney & Carney, of Kalamazoo, for appellants.

L. E. Barnett, of Hastings, for appellees.

SHARPE, J.

What is commonly spoken of as the ‘School Code’ was enacted by the Legislature in 1927 (Act No. 319). It appears in the Compiled Laws of 1929 as section 7094 et seq. Section 7131 reads as follows: ‘Whenever a majority of the qualified school electors of any organized township present and voting, vote in favor of organizing said township into a single school district, such township shall, after the election of the board of education as hereinafter provided, be a single school district and shall be governed by the provisions of this act.’

Provision is thereafter made for the presentation of a petition therefor to the township board of the township and the submission of the question to a vote of the qualified school electors therein.

At a special election, held in the township of Barry, in the county of Barry, pursuant thereto, it appeared that 183 votes were cast in favor of, and 114 against, the proposition. Members of the township school board were thereafter duly elected and assumed to act as such, whereupon the officers of the plaintiff districts commenced this proceeding by quo warranto to test the legality of the organization of the township district and the right of such persons to hold such offices. A judgment was entered for defendants, from which plaintiffs have taken this appeal.

The first question presented is thus stated by counsel for appellants: ‘Can a primary school district be compelled to become consolidated without its consent?’

In our opinion, decision of this question is controlled by Perrizo v. Kesler, 93 Mich. 280, 53 N. W. 391, 392. In that case the constitutionality of Act No. 176, Pub. Acts 1891, which authorized the organization of any township in the Upper Peninsula into a single school district upon certain steps being taken by the qualified electors of the township, was involved. One of the claims made was ‘that the act destroys the essential attributes of the primary school district, as it existed at the formation of the Constitution,’ and it was held ‘that our Constitution expressly relegates the primary schools to the discretion of the Legislature.’ This decision has been cited with approval in Keweenaw Ass'n v. School-District, 98 Mich. 437, 57 N. W. 404;Pingree v. Board of Education, 99 Mich. 404, 58 N. W. 333;Attorney General v. Lowrey, 131 Mich. 639, 92 N. W. 289;Burton v. Koch, 184 Mich. 250, 151 N. W. 48; and is in line with our holdings as to the control of the Legislature over cities and villages. See Kingsford v. Cudlip, 258 Mich. 144, 241 N. W. 893, handed down April 4, 1932.

It is also urged that the notice of election given to the voters was insufficient. It was in the following form:

‘Notice of Election.

‘Notice to the qualified school electors of the Township of Barry, County of Barry, Michigan, and the legal school electors of fractional districts the schoolhouse of which is in said township:

‘The township board of said township has called a special election for the purpose of submitting the question of organizing said township into a township school district as provided under Act 319, Public Acts of 1927, as amended, at the town hall of said township on the 28 day of July, A. D. 1931.

‘The polls will be open at ten o'clock a. m. and remain open until five o'clock p. m. on said above named day and date.

‘Dated this 3 day of July, A. D. 1931.

‘[Signed] Vernon Webster,

‘Twp. Clerk.

‘-- Election to be held at the Tooles schoolhouse.’

The defect complained of is in the designation of the place for holding the election. The testimony discloses that there was no town hall in the township. In using the form, the township clerk should have inserted the name of the schoolhouse in its stead, but neglected to do so, and added the words stating the place where the election would be held, with an arrow pointing to it as indicated. For general election purposes, the township is divided into two election precincts, one of them being located in what is spoken of as the Dietrich building in Hickory Corners, and the other in a hall owned by the Community Club in the village of Delton. When this petition was presented to the township board, it determined that there should be but one place in the township for the holding of the election, and, as testified to by the supervisor, selected the Tooles schoolhouse therefor ‘because it was the nearest public building to the center of the township’; that the schoolhouse was known by that name because ‘there was a family of Tooles lived there in that neighborhood for a great many years.’ We may take judicial notice of the fact that the township of Barry is approximately 6 miles square, and contains but 36 sections of land.

The election being a special one, the statutory provisions as to notice must be deemed mandatory. In Hulan v. Township of Greenfield, 229 Mich. 273, 200 N. W. 980, 983, the sufficiency of the publication of a notice of a special election was involved in an ouster proceeding. In the opinion, written by Mr. Justice Steere, the question was discussed at length, and many authorities cited and quoted from. The conclusion reached is thus stated: ‘We are here dealing with an election which is past and asked to declare it void because a particular detail of the law relative to notice has not been strictly observed, without any showing that thereby any elector was deprived of his right to vote or in any way misled, or that the result was affected by the irregularity complained of. The validity of an election does not involve the technical question of jurisdiction as in a case where the court is acting judicially between litigating parties. Conceding as mandatory the statutory requirements that general notice of time, place, and purpose of a special election be given the public by posting and publishing for the times and in the manner outlined, the essential requirements to that end have been substantially complied with.’

The record before us does not disclose that any elector was deceived as to the place where the election would be held, or was deprived of his vote thereby. It is apparent that any one who saw and read the notice as posted would be informed that the election would be held at the Tooles schoolhouse, a place doubtless well known to all the electors of the township. The omission to so state in the body of the notice when it so clearly appeared in the line below, to which attention was directed by the arrow pointing to it, must be deemed an irregularity only. As was said in People ex rel. Hartwick v. Avery, 102 Mich. 572, 574, 61 N. W. 4, 5: ‘The electors are not to be deprived of the result of their votes at an election by the mistake of election officers, when it does not appear to have changed the result. Under repeated decisions it is settled that the matters relied on here were irregularities, and did not invalidate the election.’

In Gardner v. Board of School Dist., 248 Mich. 134, 137, 226 N. W. 895, 896, Mr. Justice Wiest, speaking for the court, said: ‘The election was ‘called to be held in the schoolhouse in said district,’ etc. In the district are two school buildings; one used as a kindergarten, and situated across the road from the school building proper. Because of the two school buildings, we are asked to hold that the place of election was indefinite. There is no evidence of confusion as to place, and no possible reason for the voters not understanding where they were to vote. We are not impressed with the point urged.'

The judgment is affirmed.

CLARK, C. J., and McDONALD, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred with SHARPE, J.

POTTER, J. (for reversal).

The proceedings taken did not, in my opinion, result in the formation of a township consolidated school district and the abolition of the several local school districts and fractional school districts into which the township of Barry was and is organized.

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