Isaacson v. Parker
| Decision Date | 19 February 1920 |
| Docket Number | 4591,4596,4593,4592 |
| Citation | 176 N.W. 653,42 S.D. 562 |
| Parties | No. 4591 ISAAC ISAACSON, Plaintiff and appellant, v. ELLIOTT A. PARKER Superintendent of Schools of Hamlin County; C. P. Leonard et al, members of Board of Education and Directors of Hayti Independent School District No. 2; Hayti Independent Consolidated District No. 2; and H. L. Stearns, Hamlin County Treasurer, Defendants and Respondents. No. 4596 ISAAC ISAACSON, Plaintiff and appellant, v. ELLIOTT A. PARKER, Superintendent of Schools of Hamlin County; C. P. Leonard et al, members of Board of Education and Directors of Hayti Independent School District No. 2; Hayti Independent Consolidated District No. 2; and H. L. Stearns, Hamlin County Treasurer, Defendants and Respondents. No. 4592 JEAN ALATALO, Plaintiff and appellant, v. ELLIOTT A. PARKER, Superintendent of Schools of Hamlin County; C. P. Leonard et al, members of Board of Education and Directors of Hayti Independent School District No. 2; Hayti Independent Consolidated District No. 2; and H. L. Stearns, Hamlin County Treasurer, Defendants and Respondents. No. 4593 JEAN ALATALO, Plaintiff and appellant, v. ELLIOTT A. PARKER, Superintendent of Schools of Hamlin County; C. P. Leonard et al, members of Board of Education and Directors of Hayti Independent School District No. 2; Hayti Independent Consolidated District No. 2; and H. L. Stearns, Hamlin County Treasurer, Defendants and respondents. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Hamlin County, SD
##4591, 4596, 4592, 4593--Reversed
Attorneys for Appellant.
M. J. Russell, F. J. Benthin
Attorneys for Respondent.
Opinion filed February 19, 1920
These two actions were begun on February 15, 1919, for the recovery of taxes paid under protest, pursuant to the provisions of chapter 289, Laws 1915. The ground of recovery is the alleged invalidity of proceedings begun in 1917 whereby two certain common school districts and an independent school district in Hamlin county were declared to be a consolidated school district by the name of "Hayti Consolidated School District No. 2 of Hamlin County," under chapter 194, Laws 1913, as amended. The taxes sought to be recovered purport to have been levied by the consolidated district. In the Isaacson case the plaintiff also alleges that he was a school director and patron of one of the common school districts. In both cases an annulment of the purported consolidated district is sought, and an injunction against the further levy and collection of taxes by the purported consolidated district. Among other grounds of illegality it is alleged that the purpose of the consolidation was fraudulent, and without regard to the benefits to the outlying districts, and that the purpose was the shifting of the burden of taxation resting upon the independent district to the rural districts.
The amended complaints also allege the bringing of an action in prohibition to prevent the county superintendent from making the order of consolidation, and its dismissal because the acts sought to be restrained were ministerial (State ex rel. Isaacson v. Parker, 166 N.W. 309); an attempt to secure the consent of the state's attorney to bring quo warranto proceedings, and the refusal of the state's attorney, although indemnity for costs was furnished; an attempt to secure the like permission from the Attorney General (Wright v. Lee, 55 N.W. 930, and its refusal. We think the state's attorney should have permitted the bringing of the action, and that upon his refusal the Attorney General should have granted such permission. 22 R. C. L. 702. We do not subscribe to the doctrine of some courts that such right of refusal is an arbitrary discretion.
The parties defendant were the county superintendent of schools, the county treasurer, the consolidated district, and the members of the board of education thereof. Two separate demurrers were interposed to the complaint in each case, which were sustained. The plaintiffs appeal from the separate orders; hence the four titles above. We here consider them together.
Much is said in the briefs on both sides of the cases as to the authority of the plaintiffs to attack the formation of the district, except by way of quo warranto; but we do not deem a discussion of those matters necessary to the decision to which we have arrived, because we determine that chapter 194, Laws 1913, did not apply to independent school districts, hence there was no law authorizing the consolidation of an independent school district with a common school district. The purported consolidated district was therefore neither a de jure nor a de facto corporation; hence the remedy by quo warranto was not exclusiye. "It is a cardinal principle that there cannot be a corporation de facto, when there cannot be one de jure." 7 R. C. L. 61.
Briefly stated, the main contention of appellants is that chapter 194, Laws 1913, does not authorize the consolidation of a common school district with an independent school district. On the other hand, the respondents contend that such consolidation is within the purview of said chapter, but that, even if there be doubt in regard thereto., the Legislature by chapter 4, Laws 1919, legalized the formation of the consolidated district.
Beginning with the first general school law after statehood, and continuing at least until the enactment of chapter 170, Laws 1919 (), the Legislature has evinced a steadfast intention not to allow city schools (or perhaps more accurately stated, independent school districts) to absorb outlying rural precincts, except upon the consent of at least the majority of the electors of the outlying district, nor to absorb an outlying district (except in peculiar circumstances) beyond the two-mile limit without the unanimous consent of the electors of such territory. Section 4, subc. IV, c. 56, Laws 1891; § 4 subc. X ch. 57, Laws 1897; chap. 78, Laws 1899; section 4, subc. XI, c. 113, Laws 1901; section 2410, Rev. Pol. Code 1903; chapter 133, Laws 1903; section 176, c. 135, Laws 1907; section 7536, Rev. Code 1919.
Under the consolidated district act, as amended, three-fifths of the voters in the proposed district may effect the consolidation in the fact of the unanimous vote of the voters of the outlying territory. If the act applies to independent school districts, the only check upon the ability of an independent district to adsorb rural districts, and under the guise of a consolidated district to compel a rural district to assist in the support and maintenance of the independent district, is the provision that in the first instance 25 per cent. of the electors of the outlying district must petition for the consolidation and the superintendent of public instruction must approve. Nor under that law is the independent district limited by county lines. Just so long as 25 per cent. of the electors of an outlying district Will petition and the state superintendent will approve, three-fifths of the voters of the proposed district may extend, and keep on extending, the boundaries of the district indefinitely, and the wishes of the remaining 75 per cent. of the electors of the outlying district may be entirely ignored.
Under these circumstances we do not think we should give such a construction to section 1, c. 194, Laws 1913, as would nullify the long-continued and emphatic legislative policy that independent districts should not ride roughshod over rural districts, unless the intention of the Legislature of 1913 to abandon such policy is clearly manifest. The first act we find with reference to the consolidation of school districts and the elimination of the old districts is the act in question, although chapter 127, Laws 1903, provided for a possible consolidation of school townships for the purpose of a township high school, without destroying the old districts.
Section 1, c. 194, Laws 1913, was as follows:
It is the contention of respondents that the words "two or more school districts of any kind" are there used in their broad sense; hence that they include independent school districts. It is the contention of appellants that those words manifestly refer only to the common or rural schools, because of the title of said act and other amendatory acts, and :because of the context.
The title to the act of 1913 was as follows:
"An act entitled 'An act to increase the efficiency of the common school system of this state and to promote instruction in the elements of agriculture and home economics and prescribing the method of procedure in organizing such districts.'"
The title to chapter 164, Laws 1915, which amended section 3 of the 1913 act, was as follows:
"An act entitled 'An act to amend section 3, chapter 194, of the Session Laws of 1913, relating to common schools.'" The title to chapter 218, Laws 1917, which further amended said section, was as follows:
"An act entitled 'An act to amend section 3, chapter 194, of the Laws of 1913, chapter 164 of the Laws of 1915 relating to common schools.'"
The title to chapter 176, Laws 1915, which amended section 9 of the 1913 act was as follows:
"An act entitled 'An act to amend section 9 of chapter 194 of the Session Laws of 1913, relating to common schools.'"
There has always been a well-defined distinction...
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