Howard v. Luke

• Decision Date: 18 April 1917
• Docket Number: Civil 1518
• Citation: 18 Ariz. 563,164 P. 439
• Parties: FRANK L. HOWARD, GEORGE F. PEABODY, W. H. FOREMAN, ROBERT HUNTER, HENRY L. EADS and RALPH MURPHY, Appellants, v. FRANK LUKE, W. A. MOEUR and C. WARREN PETERSON, as Members of and Constituting the Board of Supervisors of Maricopa County, Arizona, Appellees
• Court: Arizona Supreme Court

164 P. 439

18 Ariz. 563

FRANK L. HOWARD, GEORGE F. PEABODY, W. H. FOREMAN, ROBERT HUNTER, HENRY L. EADS and RALPH MURPHY, Appellants, v. FRANK LUKE, W. A. MOEUR and C. WARREN PETERSON, as Members of and Constituting the Board of Supervisors of Maricopa County, Arizona, Appellees

Civil No. 1518

Supreme Court of Arizona

April 18, 1917

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Affirmed.

Mr. C F. Ainsworth and Mr. I. J. Lipsohn, for Appellants.

Mr Wiley E. Jones, Attorney General, and Mr. Clyde M. Gandy County Attorney, for Appellees.

OPINION

ROSS, J.

This action was instituted by the plaintiffs-appellants to contest a school bond election held in school district No. 38 Maricopa county, Arizona, and to restrain the members of the county board of supervisors, who are the defendants-appellees, from issuing and selling the bonds so voted. The plaintiffs' right to prosecute the action is based upon their being property owners, taxpayers, and residents of said school district No. 38. They allege that the defendants, the members of the board of supervisors of Maricopa county, have been furnished by the board of trustees of school district No. 38 a certified copy of all the proceedings had in the matter of said election, wherein it was made to appear that a majority of the votes cast at said election were in favor of issuing such bonds and that said board of supervisors, acting thereon, had determined and ordered that the bonds of said school district in the sum of $15,000 should be issued, and were taking the legal and necessary steps for their sale. Plaintiffs further allege that the certified copy of the proceedings presented to the board of supervisors was not a true and correct statement of all of the proceedings; that the election was irregular and illegal, in that the law in several enumerated respects was not observed. In the view that we take of the case we do not deem it necessary to set forth here the various grounds upon which the election is asked to be declared ineffectual for the purpose for which it was held. The court issued a temporary restraining order, as prayed for, and at the trial heard evidence upon all of the issues tendered by the complaint. At the final hearing the temporary injunction was dissolved and judgment entered in favor of the defendants. The plaintiffs appealed from said judgment.

The power and authority of boards of trustees of school districts to call elections for the purpose of deciding whether bonds in their districts shall be issued and sold for the purpose of raising money for purchasing or leasing school lots or for building schoolhouses, and the notice to be given and the manner of holding such elections, are prescribed in sections 2736 to 2740, inclusive, of the Civil Code of 1913. That school district No. 38, in voting bonds to build schoolhouses, was exercising the authority vested in it, is without question. It is plainly and explicitly granted this power. It being a creature of the statute and its powers and functions limited and prescribed by law, we think it is well settled that in voting bonds the terms and requirements of the statute must be substantially followed. That does not mean, however, that mere irregularities in the conduct of the election or in the notice or in the returns or canvass of the votes should make it void. Dillon on Municipal Corporations, volume one, section 374, says:

"It is a canon of election law that an election is not to be set aside for a mere informality or irregularity which cannot be said in any manner to have affected the result of the election."

To the same effect is section 2202, volume 5, McQuillin on Municipal Corporations; Territory v. Board of Supervisors, 2 Ariz. 248, 12 P. 730.

But granting that irregularities may have occurred, or that there was fraud or open and flagrant violations of the law in the conduct of the election, we are puzzled to know how these things are germane as between the parties to this suit. These wrongs, if they exist, were committed by the school district through the judges of the election, or the trustees in calling and noticing the election or canvassing the returns of the election. None of these interested parties of before the court, either as plaintiff or defendant. School district No. 38 is the only party vitally interested in the issue tendered -- the proposed bonds are its bonds. From the property within its boundaries the interest and principal of the bonds must be paid. Acting within the limits of the law, it may assume such obligations, and if, in an endeavor to purchase lots or build schoolhouses, it is charged with illegal or fraudulent conduct, it certainly has the right to be heard in a court of proper jurisdiction on that question. The statute (section 2719, Civil Code) provides that a regularly organized school district shall be known by designated number, and in that name it may sue and be sued and hold and convey property for the use and benefit of the district. It is a quasi-municipal corporation, organized for the purpose of local self-government and home rule in matters pertaining to the training and education of its youth. It certainly would be anomaly in law if a school bond election held by a school district should be declared null and void in a court proceeding wherein the district was not made a party.

The board of supervisors, under the law, have only a ministerial duty to perform. Paragraph 2740, Civil Code. They are not interested individually, and but indifferently in their official capacity. The law does not place upon them the obligation of investigating an election and determining whether the law has been followed or not. They are required, when "all the proceedings had in the premises" make it appear that a majority of the votes cast at said election were in favor of issuing bonds, to issue the bonds. Neither their interest nor their official duty would compel them to make answer in a proceeding of this kind. They might refuse to defend or, if disposed, confess judgment -- this without regard to the legality of the election. They are the agents of the school district in a very limited sense. They may issue the bonds, advertise and sell them, but they are not required to defend suits to test the legality of the election authorizing their issuance. In defending a suit of this kind they are mere volunteers in so far as the interest of the school district is concerned. Atchison, T. & S.F. Co. v. Wilhelm, 33 Kan. 206, 6 P. 273.

It is not always an easy matter to determine who are proper parties, but if a party be indispensable, it would seem a statement of the case would plainly show it. The rule is that:

"The parties interested in the decision of the cause must be before the court on one side or the other." State ex rel. v. Sanderson, 54 Mo. 203.

A defect of parties, however, may be waived by proceeding to trial without objection, unless the party omitted is indispensable to a final and conclusive determination of the question in controversy. The rule in that regard is well stated in Conway v. Sexton, 243 Ill. 59, 90 N.E. 203, wherein it is said:

"In discussing the method of raising the question of the lack of parties in chancery proceedings in Prentice v. Kimball, 19 Ill. 320, 323, this court said: 'It is the usual and better practice, where the want of proper parties is apparent on the face of the bill, to take advantage of it by demurrer or motion to dismiss, or, if not patent, by plea or answer. Where the parties omitted are mere formal parties and not indispensable to a decision of the case upon its merits, it will be too late to make the objection at the hearing; but where the rights of the parties not before the court are intimately connected with the matter in dispute, so that a final decree cannot be made without materially affecting their interest, . . . the objection may be taken at the hearing, or on appeal, or on error. Courts will, ex officio, take notice of such omission and rule accordingly.' The following, among other authorities, sustain the rule laid down in the decision just quoted: Spear v. Campbell, 4 Scam. (Ill.) 424; Farmers Nat. Bank v. Sperling, 113 Ill. 273; Howell v. Foster, 122 Ill. 276, 13 N.E. 527; Gerard v. Bates, 124 Ill. 150, 7 Am. St. Rep. 350, 16 N.E. 258; Johnson v. Huber, 134 Ill. 511, 25 N.E. 790; Bradley Gilbert, 155 Ill. 154, 39 N.E. 593; Chandler v. Ward, 188 Ill. 322, 58 N.E. 919; Dubs v. Egli, 167 Ill. 514, 47 N.E. 766; Abernathie v. Rich, 229 Ill. 412, 82 N.E. 308." Bittinger v. bell, 65 Ind. 445; Bradley v. Gilbert, 155 Ill. 154, 39 N.E. 593, Spelling on Injunctions § 975.

There is another insuperable difficulty in the plaintiffs' case when they undertake to attack the regularity and legality of the school bond election without making school district No. 38 a party to the suit. If the school election here challenged as illegal is to be set aside, it must be by some direct proceeding. Its legality or regularity cannot be impugned or questioned collaterally. Its record of the election and the proceedings in connection therewith speak verity in all proceedings, except it be one brought directly to determine the question of its validity or correctness. In Smallwood v. Newbern, 90 N.C. 36, the situation was in many respects analogous to the present one, and the court there said:

"The proper authorities having ascertained that a majority of the qualified voters voted 'for schools,' their finding and decision in that respect, for the purposes of this action, is final and conclusive. Their decision cannot be assailed collaterally. If it could be done in this case, it could be done in another, and in every case, and indefinitely. It would lead to gross absurdity and...