Harvey v. Kirton
| Decision Date | 25 October 1917 |
| Docket Number | 31270 |
| Citation | 164 N.W. 888,182 Iowa 973 |
| Parties | I. E. HARVEY et al., Appellants, v. J. H. KIRTON et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED FEBRUARY 13, 1918.
Appeal from Marion District Court.--L. N. HAYS, Judge.
SOME forty or more persons join as plaintiffs, and say that they are residents, citizens, and taxpayers of the territory in Marion County, Iowa, proposed to be included in and to constitute a part of the proposed Consolidated Independent School District of Dallas, Marion County, Iowa, and residents of that part of said territory lying outside of the incorporated limits of the town of Dallas, with which it is proposed to consolidate the said outside territory, in order to form the consolidated district. Defendants are members of the board of directors, and one, the treasurer of the Consolidated Independent School District of Dallas, Marion County, Iowa. This action is in equity, and plaintiffs ask that the defendants and their successors be enjoined and restrained from acting as a board of directors and treasurer of said proposed district, and that the special election of March 27, 1915, and all acts in connection therewith, both before and subsequent thereto, be held and adjudged to be illegal and void. A trial was had, and plaintiffs' petition dismissed. Plaintiffs appeal.
Affirmed.
L. D Teter and Parsons & Mills, for appellants.
Crozier & Welch and W. G. Vander Ploeg, for appellees.
1. Plaintiffs ask that defendants be enjoined from exercising any of the functions of the office of school directors or officers of the Consolidated Independent School District of Dallas, on account of certain illegalities and irregularities alleged to have occurred during the organization of the consolidated district, which, it is alleged, rendered the organization illegal. Appellants have assigned errors, and all questions have been argued; but, in view of our holding that, under the circumstances of this case, quo warranto is the exclusive remedy, we ought not to consider other questions.
The organization of the consolidated district was attempted under the provisions of Section 2794-a of the Supplement to the Code, 1913.
It may be observed that every act and thing which the plaintiffs say the defendants will do unlawfully are those things which the law specifically requires or permits boards of directors of consolidated school districts to perform. The things which plaintiffs allege in their petition that the defendants threaten to do unlawfully are substantially these: That, unless restrained, the defendants will wrongfully proceed to effect an organization of the said proposed consolidated independent district, and will levy for a general fund of said proposed consolidated district the amount of necessary taxes for school purposes, and will certify the same to the county board of supervisors; that defendants will wrongfully proceed to provide transportation to and from school for the pupils residing in the district, and will proceed to provide a suitable school building within the town of Dallas, and the like. It is not claimed that the defendants are seeking to do these things in an unlawful manner, but plaintiffs' claim is that, because the district was not organized, defendants have no right to do these things at all. If the district is properly organized, then, clearly, defendants have a right to do these things. So that, after all, as stated, the proposition goes back to the question whether the district has been legally organized. It is not claimed that the defendants were not legally elected as officers and directors of the Consolidated Independent School District of Dallas. Plaintiffs' claim is that the consolidated district which defendants claim to represent as officers and directors was not legally established, and, therefore, the defendants should not be permitted to perform the duties which the law specifically enjoins upon them. So that, after all, the real question in the case is as to whether the district has been legally organized as a school corporation, and as to whether it has authority to act as such. Counsel for appellants concede as much; for they say in argument:
"That the Consolidated Independent School District of Dallas does not now, nor never has, existed as such, unless all proceedings are regular and valid, and there is a want of power, or at least there is a contention as to the want of power."
The defendants pleaded in their answer, and now contend, that, under the circumstances of this case, an injunction would not lie, but that an action of quo warranto is the proper remedy to test the legality of the organization of quasi corporations, such as a school district, and that such a remedy is exclusive, where the legality of the organization is the only question. Substantially all the evidence introduced on the trial was directed to this point, and the principal arguments of both appellants and appellees are on this question.
2. It is thought by appellants that the rule applies here that, if a wrong forum is selected, the proper remedy is a motion to transfer (citing Code Sections 3432, 3437, and In re Estate of Douglas, 140 Iowa 603, 117 N.W. 982); and that the failure of defendants to move to transfer is a waiver of the defects in the proceedings (citing, again, Code Sections 3432, 3433, 3434, 3437, Reiger v. Turley, 151 Iowa 491, 131 N.W. 866, Matthews v. Luers Drug Co., 110 Iowa 231, 81 N.W. 464).
But defendants are not objecting that appellants are not in the proper forum because the relief asked for can only be granted in equity, but they do contend that plaintiffs have no right to an injunction, and that injunction is not the proper remedy.
It occurs to us that there is another reason why the rule would not apply in this case, if an action of quo warranto is the proper and exclusive remedy. It is that, in a quo warranto proceeding, under Code Section 4316, leave of court, or a judge thereof, must be had before the action can be brought. Such an action is really by the state, at the relation of an individual.
3. Appellants contend that quo warranto is not an exclusive remedy, and their claim is that the distinction is that, where there is a want of power, or where the contention is as to the want of power, equity has jurisdiction. But they say that, where the power is conceded, but the manner of the exercise of the power is sought to be controlled, the remedy is at law. They cite Gallagher v. School Township, 173 Iowa 610, 154 N.W. 437; Hinkle v. Saddler, 97 Iowa 526, 66 N.W. 765; State v. Alexander, 129 Iowa 538, 105 N.W. 1021; McLachlan v. Town of Gray, 105 Iowa 259, 74 N.W. 773. And they cite, also, Code Sections 4313 and 4354. The first of these is one of the sections of the statute in regard to quo warranto cases, and the other is the statute on injunctions. Appellees say that these cases do not sustain the propositions for which they are cited, and they say that appellants cannot find a case squarely supporting the proposition.
Referring now to appellants' cases, it is true that, in the Gallagher case, the action was for an injunction to restrain defendants from acting as directors of the school district; but the question as to whether the remedy was a proper one was not raised, and no reference is made to the question in the opinion.
In the Hinkle case, no question was made as to the legality of the formation of the school district of which defendants were officers, and no question was made as to the legality of their election. The claim was that the election authorizing the levying of a tax for the building of a schoolhouse was illegally held. Some question was raised in that case as to the addition of certain territory, but that question was not determined by the court.
The case of State v. Alexander, supra, is authority only for the proposition that quo warranto is the proper remedy to test the validity of the organization of a school district. Such was the holding, also, in State v. School Dist. of Carbondale, 29 Iowa 264.
In the McLachlan case, plaintiffs sought to restrain by injunction the vacation of a certain highway within the defendant town, and the court held that plaintiffs had a plain, speedy and adequate remedy at law by certiorari. The statute provides under what circumstances certiorari will lie, and other provisions of the statute provide when quo warranto is a proper proceeding. The remedies are different. It is an elementary rule of law governing injunctions that injunctions will not be granted if the complaining parties have a plain, speedy, and adequate remedy at law.
Turning now to the statute under the title in regard to actions to test official and corporate rights, we find that Section 4313 provides:
And Section 4316 provides that "any citizen of the state having an interest in the question may apply to the court in which the action is to be...
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