Hagstrom v. Estherville Sch. Dist. No. 43 in Burleigh Cnty.

Decision Date30 September 1936
Docket NumberNo. 6441.,6441.
Citation67 N.D. 56,269 N.W. 93
PartiesHAGSTROM v. ESTHERVILLE SCHOOL DIST. NO. 43 IN BURLEIGH COUNTY et al.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. Repeal of a statute by implication is not favored; and unless there is an unavoidable and irreconcilable conflict between the latter law and the former one, no repeal by implication is effected.

2. Chapter 190, Laws 1925, providing for the removal of a schoolhouse in a common school district upon a petition signed by a majority of the electors of the district where the schoolhouse does not exceed $3,000 in value and the use of the schoolhouse as a public school has been discontinued for at least one year, and where the expense of moving the building will not exceed one-half of the value thereof, was not repealed by implication by the re-enactment and amendment of a prior statute (section 1184, Comp.Laws 1913) providing for the removal of a public schoolhouse pursuant to an election.

Appeal from District Court, Burleigh County; Jansonius, Judge.

Suit by John Albert Hagstrom against Estherville School District No. 43 in Burleigh County, North Dakota, and others. From an adverse order, plaintiff appeals.

Affirmed.

C. L. Crum, of Bismarck, for appellant.

Geo. S. Register and Hyland & Foster, all of Bismarck, for respondents.

CHRISTIANSON, Judge.

This is an appeal from an order dissolving a temporary injunction restraining the defendants from removing a certain schoolhouse without submitting the questionof removal to a vote of the electors of the school district.

The sole question argued and presented for determination is one of statutory construction.

Section 1184, Comp.Laws 1913, provides: “Whenever in the judgment of the board it is desirable or necessary to the welfare of the schools in the district, or to provide for the children therein proper school privileges or whenever petitioned to do so by one-third of the voters of the district, the board shall call an election of the voters in the district at some convenient time and place fixed by the board, to vote upon the question of the selection, purchase, exchange, or sale of a school house site, of the erection, removal or sale of a school house. Said election shall be conducted and the votes canvassed in the same manner as at the annual election of school officers.”

Chapter 190, Laws 1925, reads as follows:

“An act providing for the moving of school houses to other places within school districts under certain conditions whenever petitioned by a majority of the electors within any common school district, for the removal to another place within such district, such place to be designated in such petition, of a school house not exceeding three thousand dollars in value and in which school house the conducting of a public school has been discontinued for at least one year; it shall be the duty of the school board of such district, provided that the expense of moving such building shall not exceed one-half of the value thereof, to proceed forthwith to have such school so moved and school established therein at such new location.

This act shall not be construed as amending or repealing the existing acts governing the removal of school houses, but the proceedings hereby authorized shall be cumulative and in addition thereto.”

In 1931 the legislative assembly amended and re-enacted section 1184, supra, to read as follows: “Whenever in the judgment of the Board it is desirable or necessary to the welfare of the schools in the district, or to provide for the children therein proper school privileges, or whenever petitioned to do so by one-third of the voters of the district, the Board shall call an election of the voters in the District at some convenient time and place fixed by the Board, to vote upon the question of the selection, purchase, exchange or sale of a school site, or the erection, removal, purchase or sale of a school house. Said election shall be conducted and the votes canvassed in the same manner as at the annual election of school officers. If the question to be voted upon is the selection of a school site, the Board shall select one site to be described upon the ballot, and the voters shall express their preference either ‘For the selection of such site’ or ‘Against the selection of such site.’ If the question to be voted upon is the removal of a school house, the Board shall select one site to be described upon the ballot, and the voters shall express their preference either ‘For the removal of said school house to such site’ or ‘Against the removal of said school house to such site.” Chapter 253, Laws 1931.

In this case a petition was presented for the removal of a schoolhouse under the provisions of chapter 190, Laws 1925. No question is raised as to the validity of that statute if it remains in force. It appears beyond controversy that the schoolhouse in question did not exceed $3,000 in value and that “the conducting of a public school therein had been discontinued for at least one year prior to the time the petition was presented.” It also appears that the expense of moving the building will amount to $200 and that such expense does not exceed one-half of the value of the building. There is in fact no serious contention by the plaintiff that there has not been a substantial compliance with chapter 190, Laws 1925, and there is no contention that that statute is not a valid enactment. It is the contention of the plaintiff, however, that chapter 190, Laws 1925, is no longer in force, but that the same ws repealed by implication by chapter 253, Laws 1931. It is also contended by the plaintiff that a number of the persons who signed the petition for the removal of the schoolhouse signed a remonstrance or protest against such removal, and it is argued that if the names of the persons who signed the remonstrance are eliminated from the petition for removal such petition will not be signed by a majority of the electors in the school district.

[1] Subsequent legislation repeals previous inconsistent legislation whether the subsequent legislation expressly declares such repeal or not. “In the nature of things it would be so, not only on the theory of intention, but because contradictions...

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5 cases
  • State v. Hagge
    • United States
    • North Dakota Supreme Court
    • December 20, 1974
    ...A statute may repeal prior inconsistent legislation, whether expressly declaring such repeal or not. Hagstrom v. Estherville School Dist. No. 43, 67 N.D. 56, 269 N.W. 93 (1936). See also: State v. Morf, 80 Ariz. 220, 295 P.2d 842 (1956); State v. London, 156 Me. 123, 162 A.2d 150 (1960). Mo......
  • Home Owners' Loan Corporation v. Wright
    • United States
    • North Dakota Supreme Court
    • July 29, 1941
    ... ... Young, 68 ND ... 300, 279 NW 251; Hagstrom v. Esterville School Dist ... 67 ND 56, 269 NW ... ...
  • State ex rel. Public Service Commission v. Montana-Dakota Utilities Co.
    • United States
    • North Dakota Supreme Court
    • March 31, 1958
    ...Statutory Construction, 3rd Ed., Sec. 2022; State ex rel. Lofthus v. Langer, 46 N.D. 462, 177 N.W. 408; Hagstrom v. Estherville School Dist. No. 43, 67 N.D. 56, 269 N.W. 93. Having determined that Section 49-0505, NDRC 1943 is applicable to the schedules filed by the appellant with the Publ......
  • St. Paul Foundry Co. v. Burnstad Sch. Dist. No. 31
    • United States
    • North Dakota Supreme Court
    • November 13, 1936
    ...the two statutes as will result in a repeal by implication or by the general repealing clause above referred to. See Hagstrom v. School District (N.D.) 269 N.W. 93, where the rule regarding repeals by implication is reiterated. [3] The question then is as to the effect of section 1356 with ......
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