Isaacson v. Parker

• Decision Date: 05 June 1920
• Docket Number: 4591,4596,4592,4593.
• Citation: 178 N.W. 139,43 S.D. 142
• Parties: ISAACSON v. PARKER et al. (two cases). ALATALO v. SAME (two cases).
• Court: South Dakota Supreme Court

178 N.W. 139

43 S.D. 142

ISAACSON v. PARKER et al. (two cases).

ALATALO v. SAME (two cases).

Nos. 4591, 4596, 4592, 4593.

Supreme Court of South Dakota

June 5, 1920

Appeal from Circuit Court, Hamlin County; J. H. Bottum, Acting Judge.

On petition for rehearing. Petition denied, and former opinion upheld.

For former opinion, see 176 N.W. 653.

Whiting J., dissenting.

Eugene P. Campbell and Loucks, Hasche & Foley, all of Watertown, for appellants.

M. J Russell, of Watertown, F. J. Benthin, of Hayti, and McFarland & Kremer and Hanten & Hanten, all of Watertown, for respondents.

Byron S. Payne, Atty. Gen., amicus curiae.

GATES J.

The respondents petitioned for a rehearing. The former opinion of this court is found in 176 N.W. 653. The Attorney General representing the educational department of the state, filed a petition as amicus curiae. In view of the fact that the decision of this court was adverse to the construction placed by the educational department upon the consolidated school law, we granted a rehearing. Able counsel argued the questions before the court. Elaborate briefs were filed by the parties and by the Attorney General. The principal ground urged by respondents, aside from the claims that this court erred in its interpretation of section 1, c. 194, Laws of 1913, is that we erred in asserting that the consolidated district was not only not a de jure district, but was not a de facto district, and therefore that we erred in holding that the plaintiff could attack the organization without obtaining the refused permission of the state's attorney and the Attorney General. In support of this ground cases are cited by respondents which tend to establish a rule that parties that sit idly by and acquiesce in the formation of a corporation may be estopped from questioning the validity of the organization even though it was not at the beginning a de facto corporation. But such is not this case. This action was brought before money was expended, before a contract for a school building was let, and before bonds were issued. The recitals in the complaint also negative acquiescence by appellants and negative the good faith of the attempted organization. How can such authorities be applicable to the present situation? Among the cases cited are the following: Tulare Irr. Dist. v. Shepard, 185 U.S. 1, 22 S.Ct. 531, 46 L.Ed. 773; Coler v. Rhoda Sch. Tp., 6 S. D. 640, 63 N.W. 158; Schweigert v. Abbott, 122 Minn. 343, 142 N.W. 723, the soundness of which decisions we do not challenge.

Respondents admit that appellants would have had a standing in court if the action had been brought for an injunction. In addition to the relief asked for the recovery of taxes paid, under the provisions of chapter 289, Laws of 1915 (section 6826, Rev. Code 1919), the allegations of the complaint set forth sufficient facts and prayer for relief to constitute the complaint one for injunctive relief. Let it also be borne in mind that the statements contained in the former opinion are to be applied to the facts of these cases as alleged in the amended complaints and as admitted by the demurrers thereto.

After giving much thought and careful consideration to this case and to its probable consequences, we are still of the opinion that the allegations of the complaint entitle appellants to the relief sought. We are still of the opinion that the reason and fundamental thought underlying the passage of the act of 1913 was the "purpose of promoting a better condition in rural schools." Such being the issue, the question whether or not the inclusion of an independent district in a consolidated district would be a benefit to the pupils of the rural territory is entirely irrelevant. It is a demonstrable fact from the record in this case and from the history of other consolidated districts that when an...