Hazelton-Moffit Special School Dist. No. 6, Emmons County v. Ward

• Decision Date: 06 February 1961
• Docket Number: No. 16,No. 32,7907,Nos. 7906,E,HAZELTON-MOFFIT,32,16,s. 7906
• Citation: 107 N.W.2d 636
• Parties: SPECIAL SCHOOL DISTRICT NO. 6, EMMONS COUNTY, North Dakota, Petitioner and Respondent, v. M. D. WARD, Benejah Orthmeyer, Raymond Humann, Mrs. Meade Ward, and Ervin Grossman, individually and as officers or members of the School Board of former Liberty School Districtmmons County, North Dakota, Respondents, M. D. Ward and Mrs. Meade Ward, Respondents and Appellants.SPECIAL SCHOOL DISTRICT NO. 6, EMMONS COUNTY, North Dakota, Petitioner and Respondent, v. William ROOKER, Leo Bitz, Harvey Soule, Mrs. Floyd Bitz, and Mrs. William Rooker, individually and as officers or members of the School Board of former Buchanan School Districtmmons County, North Dakota, Respondents and Appellants.
• Court: North Dakota Supreme Court

Page 636

107 N.W.2d 636

HAZELTON-MOFFIT SPECIAL SCHOOL DISTRICT NO. 6, EMMONS

COUNTY, North Dakota, Petitioner and Respondent, v. M. D. WARD, Benejah Orthmeyer, Raymond Humann, Mrs. Meade

Ward, and Ervin Grossman, individually and as officers or

members of the School Board of former Liberty School

District No. 32, Emmons County, North Dakota, Respondents,

M. D. Ward and Mrs. Meade Ward, Respondents and Appellants.

HAZELTON-MOFFIT SPECIAL SCHOOL DISTRICT NO. 6, EMMONS

COUNTY, North Dakota, Petitioner and Respondent, v. William ROOKER, Leo Bitz, Harvey Soule, Mrs. Floyd Bitz, and Mrs. William Rooker, individually and as officers or members

of the School Board of former Buchanan School District No.

16, Emmons County, North Dakota, Respondents and Appellants.

Nos. 7906, 7907.

Supreme Court of North Dakota.

Feb. 6, 1961.

Syllabus by the Court.

1. One who is elected to the office of county superintendent of schools, goes into possession and exercises the function of the office, and discharges the duties thereof under color of authority, is a de facto officer although he may not possess the statutory educational requirements for the office.

2. One who is appointed by the county superintendent of schools to the position of county committeeman under the act to reorganize school districts, upon the expiration of the term of a county committeeman selected by school district respresentatives as provided by Chapter 147, Session Laws N.D.1947, where such appointment is made as provided by Section 15-5305 1957 Supplement to NDRC 1943 (Section 15-53-05 NDCC) providing for the filling of vacancies on the county committee by appointment by the county superintendent, and where such appointee goes into possession and exercises the function of the office and discharges the duties thereof under color of authority, is a de facto officer although there may be an unsettled question whether or not a vacancy existed within the terminology of the statute authorizing the county superintendent to appoint.

3. One who has prima facie title to office and is in possession thereof and exercising its functions is at least a de facto officer, and every act done in the capacity of the office is valid and effective.

4. A de facto public officer is clothed with all the rights and powers that he would have enjoyed as a de jure officer.

5. In a mandamus proceeding to compel the performance of an act for the benefit of a newly formed school district the respondents cannot raise in resistance to the issuance of the writ the eligibility to office of public officers charged with the responsibility of performing certain functions in the formation of the newly formed corporation where such officers are de facto officers.

6. An averment in a petition for mandamus by a school district that the organization was 'duly conducted' imports but a legal conclusion and does not broaden the issue to permit the respondents to challenge, by answer, the legality of the formation of the district.

7. When a statutory proceeding is specifically excepted from the new rules of civil procedure (N.D.R.Civ.P.), insofar as it is inconsistent or in conflict with the procedure and practice provided by the rules, the court is bound by the provisions of the statute.

8. Under the act to provide for the reorganization of school districts (Chapter 15-53 NDCC) the legislative act of establishing a new school district is complete when the county superintendent acts administratively to establish and organize the new district. It is his administrative acts that operate to create the new district.

9. Where the county superintendent has created a new school district under the act to provide for the reorganization of school districts (Chapter 15-53 NDCC) such new district is then clothed with prima facie existence.

10. The establishment and organization of a reorganized school district by the county superintendent of schools under Chapter 15-53 NDCC establishes the prima facie legal existence of the newly formed district, and the courts will not, in a mandamus proceeding to compel the officers and school board members of the former school districts absorbed by the reorganization to deliver up properties of the former districts, go behind the administrative acts of the county superintendent in the establishment and organization of the new district to determine the ultimate legal existence thereof.

11. Mandamus proceedings brought by a newly formed school district established to have prima facie legal existence cannot be defeated by averment of facts in the answer which attack the ultimate legality of the district.

12. A public official is presumed to have performed his duties regularly.

13. It is a purpose of quo warranto or an action in the nature of quo warranto to inquire into the ultimate legality of a municipal corporation. Chapter 32-13 NDCC.

14. The statutes and the rules of civil procedure do not contemplate that the special proceeding of mandamus can be made the appropriate remedy to determine questions that are properly the subject of an action.

15. As a general rule the constitutionality of a statute cannot be first raised on appeal in a civil proceeding.

16. A court will pass on a constitutional question only when such question is properly before it and necessarily involved.

17. Courts should not of their own volition go outside of the record and search for reasons for annulling a statute, nor should they conjure up theories to overturn and overthrow it.

William R. Mills, Bismarck, for respondents and appellants.

Conmy, Donahue & Conmy, Bismarck, for petitioner and respondent.

TEIGEN, Judge.

Hazleton-Moffit Special School District No. 6 is the petitioner. It filed two petitions against the board members and officers of two former school districts praying for a writ of mandamus to compel the respondents individually and as such board members and officers of the former school districts to pay over and release to the petitioner all properties and assets in their hands belonging to the former districts. The petitions in brief alleged that the petitioner is a corporation organized and existing under and by virtue of the laws of the State of North Dakota; that the respondents were officers or board members of the former school districts but that such school districts had ceased to exist; that in a reorganization of school districts conducted pursuant to the provisions of Chapter 15-53 of the 1957 Supplement to NDRC 1943, all of the area formerly included in the said former school districts named was incorporated into the petitioner district as an integral part thereof; that the said former school districts thereupon terminated as legal entities; and that the time for appeal had expired. Pursuant to the statutes and the adjustment of property, assets, debts and liabilities, all of the property and assets of said former school districts became the property and assets of the petitioner. Demand had been made upon the respondents for delivery thereof but they have refused and still refuse to pay over or release the same. Petitioner prayed for a peremptory writ of mandamus to compel respondents in each of said cases to turn over to it the property and assets of their respective former school districts.

The respondents in each of said cases filed similar answers. In one of the cases, however, three of the respondents filed with the court an offer of judgment which was accepted by the petitioner and the court. The record does not disclose what offices these three respondents held, but we assume they did not constitute a majority of the school board or those who had actual possession of the property in question as the proceeding continued to be resisted. Thus the two respondents in the one case, and all of the respondents in the other case, filed answers in each of the proceedings. The answers are identical. In these answers the respondents deny that the petitioner is now or at any time has been a corporation; deny that the former school districts and ceased to exist as corporations, and deny that the reorganization of the school districts was duly conducted under the provisions of Chapter 15-53, supra. They further deny that the former school districts were incorporated into the petitioner district or that the former school districts terminated as legal entities. They deny that the time for appeal from the proceedings had expired, and deny that the assets and property in the hands of the respondents is the property of the petitioner district. The respondents admit that a demand had been made, but allege that they believe the same to be invalid and of no effect.

The respondents affirmatively plead that the reorganized district had not been properly formed. In designating the matters which they claim rendered the district invalid, they aver that the county committee, purporting to perform pursuant to statute, was not a duly constituted county committee and was therefore illegal. They averred that the polling places were not in proper places; that certain petitions had been filed with the county committee which had been disregarded; that the second election held for the formation of the new school district was invalid because it was not preceded by another public hearing, and that in the notice of election there was an omission in the boundary description. The respondents allege that the county superintendent of schools did not have the statutory educational requirements for the office; that the proposed boundary was gerrymandered to include a certain schoolhouse, thus depriving another district of it; that the votes of one district included within the proposed reorganized district were misclassified as rural. They further contend that the petitioner in performing acts as a school district was doing so in an illegal manner in that it was obtaining money in the form of loans without calling for bids; that if the said former districts no longer exist, respondents, as...