Hauswirth v. Mueller

• Decision Date: 15 March 1901
• Citation: 64 P. 324,25 Mont. 156
• Parties: HAUSWIRTH v. MUELLER et al.
• Court: Montana Supreme Court

64 P. 324

25 Mont. 156

HAUSWIRTH v. MUELLER et al.

Supreme Court of Montana

March 15, 1901

Appeal from district court, Silverbow county; E. W. Harney, Judge.

Action by Simon Hauswirth against Henry Mueller and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

C. E White and W. J. Jameson, for appellant.

Chas R. Leonard and Peter Breen, for respondents.

PIGOTT J.

This is an appeal from a judgment entered upon an agreed statement of facts submitted to the district court of Silverbow county under the provisions of sections 2050-2052, Code Civ. Proc. The sole question involved is whether or not the notice of election hereinafter set forth was in substantial conformity with the provisions of the statute prescribing the contents of such a notice. The facts material to the consideration of the question are these; School district No. 1 of Silverbow county is a district of the first class, the population being 60,000. On March 6, 1900, the board of county commissioners of Silverbow county designated within the district nine polling places for the election to be held on April 7, 1900 and established 29 (?) registry precincts. This action was taken under section 1773 of the Political Code, as amended by house bill No. 63, approved March 3, 1899 (Laws 1899, p. 584). On March 13, 1900, the board of trustees resolved that, at the school election to be held on the 7th day of April following, there be submitted to the electors of the district the question whether bonds should be issued and sold to the amount of $50,000, bearing 4 per cent. interest, redeemable in 10 years, and payable in 20 years, for purchasing school lots and building school houses thereon. On March 22, 1900, there were posted in three public places in the district notices, of which the following is a copy: "Notice of School Election. Notice is hereby given that an election will be held on Saturday, the 7th day of April, A. D. 1900, in school district No. 1, Silverbow county, state of Montana, for the purpose of electing four school trustees for the term beginning on the third Saturday in April, A. D. 1900, and ending on the third Saturday in April, A. D. 1902. The following question will also be submitted to the registered voters in said school district, to be voted upon at said time, to wit: 'Shall bonds be issued and sold to the amount of fifty thousand ($50,000.00) dollars, bearing four (4) per cent. interest, redeemable in ten (10) years, and payable in twenty (20) years, for the purpose of purchasing school lots and building school houses thereon?' Polls will be open from eight o'clock a. m. to twelve m., and from one o'clock p. m. until eight p. m. [Signed] J. E. Moran, County Clerk." We observe, in passing, that publication in a newspaper does not seem to have been made. On March 23, 1900, the board of county commissioners caused to be published in a daily newspaper a notice of registration, describing the boundaries of each registry precinct, giving the location of the office, the name of the registry agent therefor, the date of and the hours during which the office of the registry agent would be open, and during which persons might apply and be registered, and containing also a description of the polling places as designated on March 6th by the board of county commissioners. In pursuance of the notice which was posted on March 22d, an election was held on the 7th day of April, at which 3,794 ballots were cast, 2,875 being in favor of the issuance of the bonds, and 919 to the contrary. The trustees were about to issue and sell the bonds when the plaintiff sought an injunction. Except as to the failure of the notice of election to state the places of holding it, the validity of the proceedings in respect of the proposed issue of bonds is conceded. The court below decided that the notice of election was sufficient, and rendered judgment dismissing the plaintiff's "cause of action." The plaintiff has appealed. The cause was submitted on yesterday, and it is deemed advisable to render a decision immediately.

Section 1962 of chapter 6 of the Political Code, under the authority of which chapter school trustees are authorized to issue bonds, provides that an election to determine whether bonds shall be issued shall be held in the manner prescribed in section 1243 of title 3 of part 3 of the Political Code. No section bearing that number is found in title 3. Counsel for the defendants frankly state that the trustees proceeded under section 1940 in the matter of calling the election for the issuance of the bonds. Examination of the various provisions of the Political Code touching the right to issue bonds, and to provide extraordinary funds for school purposes, makes it evident that the supposed section 1243 (which does not exist) was inadvertently used for section 1940, and that by a misprision or clerical error "1243" was inserted where the legislative assembly intended to put section "1940." If this be not true, then there is nowhere in the statutory law any provision prescribing the manner of calling and holding an election for the purpose of determining whether school district bonds shall be issued.

Section 1773 of the Political Code, as...