Hodges v. Snyder

• Decision Date: 24 June 1920
• Docket Number: 4630
• Citation: 43 S.D. 166,178 N.W. 575
• Parties: J. H. HODGES, Nick Hoffman, Walter Anderson, E. E. Ackley, and H. M. Muser, v. G. T. SNYDER, C. W. Walkow, A. O. Walkow, C. J. Noyes and J. W. Earl, members of the Board of Education, C. A. Jepson, Clerk, and J. W. Kruger, Treasurer of the Erwin Independent Consolidated School District No. 1, and M. L. McCarty, County Superintendent of Schools of Kingsbury County, South Dakota Defendants and respondents.
• Court: South Dakota Supreme Court

43 S.D. 166

178 N.W. 575

Nick Hoffman, Walter Anderson, E. E. Ackley, and H. M. Muser,

v.

G. T. SNYDER, C. W. Walkow, A. O. Walkow, C. J. Noyes and J. W. Earl, members of the Board of Education, C. A. Jepson, Clerk, and J. W. Kruger, Treasurer of the Erwin Independent Consolidated School District No. 1, and M. L. McCarty, County Superintendent of Schools of Kingsbury County, South Dakota Defendants and respondents. South Dakota Supreme Court Appeal from Circuit Court, Kingsbury County, SD Hon. Alva E. Taylor, Judge #4630--Reversed Hall & Purdy Attorneys for Appellant. Null & Royhl Attorneys for Respondents. Opinion filed June 24, 1920

POLLEY, J.

The defendants in this case are acting as the officers of the purported Erwin independent consolidated district No. 1 of Kingsbury county and the superintendent of schools of that county. Plaintiffs are resident property owners and taxpayers of the territory embraced within said purported school district.

Prior to the acts complained of by plaintiffs, the said territory consisted of school districts Nos. 31, 32, 34, 35, and 5o of said county. During the months of March and April, 1919, certain proceedings were had by defendants, to the end that, on the 16th clay of April, 1919, the superintendent of schools of said county made and signed an order in which he declared that school districts Nos. 31, 32, 33, 34, and 50 be, and are, consolidated into a single district to be known as Erwin independent consolidated district No. 1 of Kingsbury county. Why district No. 35 was omitted from the order does not appear. On the 8th day of April, 1919, an election Was held in said purported consolidated school district, at which election a board of directors of such district was elected. Thereafter, and during the. months of May and June, 1919, said board took certain proceedings with a view of issuing bonds to the amount of $97,000 for the purpose of purchasing a school site and erecting a school building thereon, in the city of Erwin. Thereafter, on the 4th day of June, 1919, an election was held in said purported district for the purpose of deciding whether said bonds should be issued. This election authorized the issuance of such bonds. Thereupon plaintiffs commenced this action, and asked to have defendants enjoined and restrained from purchasing said school site or erecting the said school building, and from in any manner interfering with the schools as they existed in the said several school districts, or issuing or selling said bonds, or any part thereof; and that all the proceedings had for the establishment of such purported consolidated school district and the issuing of said bonds be declared null and void.

At the commencement of the action the court issued an order to show cause, on a certain day specified, why a temporary injunction should not be issued, and which order contained a meantime restraining order. To plaintiffs' complaint, defendants interposed a general demurrer. The demurrer was sustained, and an order to that effect made and entered by the court. The court also at the same time made and entered a separate order vacating the meantime restraining order and denying the pendente lite injunction. From this order plaintiffs took an immediate appeal, and also appealed from the order sustaining defendants' demurrer. Both appeals are presented on the same brief.

It is contended by respondents that appellants, in the preparation of their brief, have not complied with rule No. 4 of this court (170 NW vii), and that for that reason their brief should not be considered. In this contention respondents are clearly wrong. The portion of the rule that is claimed appellants have violated reads as follows:

"Each assignment, or group of assignments, if they present a like question, should be followed by the argument and authorities relied upon to sustain the alleged claim of error."

While the appellants' assignments are stated in separate paragraphs and separately numbered, they all present like questions. True, the making of the order vacating the temporary restraining order is separately assigned as error, but the setting aside of that order followed as a matter of course when the demurrer to the complaint was sustained. The substance of both orders could more appropriately have been incorporated into one order, and then one assignment would have been sufficient, and but one appeal would have been necessary. The assignments should be treated as a group of assignments presenting like questions.

Another question of practice is raised by respondents that must be disposed of before the merits of the case can be reached. Plaintiffs commenced the action in their own name as the real parties in interest, asking for equitable relief by injunction. Defendants contend that this is not the proper remedy, but that plaintiffs should have proceeded by an information in the nature of quo warranto. The reason, of course, as claimed by defendants, why plaintiffs should not be allowed to maintain this action is that, this being an action for equitable relief on the ground that the school district was not legally organized, it involves a collateral attack on the proceedings and the election to organize the district; and it is contended that such matter can be inquired into only in quo warranto procedings. If this action involved merely an attack on the regularity of the procedings and the election leading up to the organization of such school district, we might concede, though we do not decide, that quo warranto procedings would be the only remedy. But this action goes further back than the proceedings to organize the district or the regularity of the said election: It questions the very right to organize a consolidated or independent district out of the territory involved, and a suit in equity in the name of the real parties in interest is the proper remedy.

The case of Brick Co. v. Grank Forks, cited and relied upon by appellants is not analogous to this case. In that case there was no question as to the legal existence of the corporation involved, nor that the defendants were the legal officers thereof. The complaint in that case was that the corporation was trying to exercise its authority beyond its territorial jurisdiction. Neither is the case of Nelson v. School District, 181 Iowa, 424, cited and reliecd upon by respondents, analogous to this case. That case was determined upon the theory that a de facto public corporation existed; but in this case it is claimed that there was not even a de facto corporation.

It is the contention of appellants that the purported Erwin Independent consolidated school district No. 1 was not legally organized, and never existed as a corporate entity, for the reason, among other things, that chapter 194, Laws 1913, did not contemplate the inclusion of an independent school district in a consolidated district. This matter has been thoroughly considered by this court in Isaacson v. Parker, 176 N.W. 653, and again in the same case on rehearing (178 NW 139), where the above contention of appellants was sustained. This is the construction adopted by the Code commission, and, when they incorporated the law into the Code, they eliminated the words, "school districts of any kind," and inserted in lieu thereof the words, "two or more common school districts." Section 7569, Rev. Code 1919. But immediately after the adoption of the Code and before it went into effect, the Legislature amended this section by the enactment of chapter 170, Laws 1919, which amendment provides...