Klutts v. Jones

• Decision Date: 20 April 1915
• Docket Number: No. 1750.,1750.
• Parties: KLUTTS ET AL.v.JONES, TREASURER, ET AL.
• Court: New Mexico Supreme Court

20 N.M. 230

148 P. 494

KLUTTS ET AL.

v.JONES, TREASURER, ET AL.

No. 1750.

Supreme Court of New Mexico.

April 20, 1915.

Syllabus by the Court.

The authority and powers of officers are determined by the law, considered as a whole, and a mistaken conception on the part of an officer as to the statute under which he has acted will not affect the validity of his action, provided he actually had legal authority. Held, that where directors of a school district, upon petition to the county superintendent, were ordered by such officer to hold an election for the purpose of determining whether the bonds of such district should be issued for the purpose of providing funds to pay for the erection of a new school building, such action presumably being taken under chapter 46, Laws 1899, which act did not apply to the election in question, because such district had a school building, but where such directors had the power, under section 1542, Comp. Laws 1897, to call and hold the election in question, it will be presumed, nothing to the contrary appearing, that the directors acted under the latter section in calling an election for the purpose of determining whether bonds should be issued.

A complaint, seeking to enjoin the issuance and sale of bonds authorized by the vote of the electors of a school district, which shows that the bonds were authorized by a majority of one vote, and that certain persons, naming them, voted for such bond issue, that such persons, at the time of the election, were not bona fide residents of the school district, and entitled to vote therein, and which contains other allegations showing that the votes cast by such persons changed the result of the election, is sufficient to withstand a demurrer.

Where the Constitution of a state fixes the qualifications and determines who shall be deemed qualified voters in direct, positive, and affirmative terms, these qualifications cannot be added to by legislative enactment. Held, the Constitution having made women possessing certain qualifications qualified electors at all school elections, that it would not be within the power of the Legislature to prescribe additional qualifications.

An election within a school district for the purpose of determining whether bonds of such district shall be issued for the purpose of building a schoolhouse is a school election, within the meaning of section 1, art. 7, of the state Constitution.

Section 1545, Comp. Laws 1897, construed. Held, that the boundaries of the school district need not be established and monumented prior to the holding of the election, or the signing of the bonds by the president of the school board.

The verb “to issue” means to emit or send forth, and it does not embrace the preliminary acts of calling and holding the election, or signing and dating the bonds, but is confined to the delivery, unless the context of the statute requires that a different meaning should be accorded to the words.

The insufficiency of the affidavit or verification to a pleading is not ground for demurrer.

The statutes of New Mexico contain no provision for contesting a school bond election.

Appeal from District Court, Roosevelt County; McClure, Judge.

Action by William D. Klutts and another against Moses B. Jones, Treasurer, and another. From judgment for defendants, plaintiffs appeal. Reversed and remanded, with directions.

A complaint, in an action to enjoin the issuance and sale of bonds authorized by the electors of a school district, held not demurrable.

G. L. Reese, of Portales, for appellants.

James A. Hall, of Portales, for appellees.

ROBERTS, C. J.

This action was instituted in the court below by appellants, Moses B. Jones, county treasurer of Roosevelt county, and school district No. 30 of said county, to enjoin said defendants from advertising for sale, negotiating, selling, or transferring certain bonds, voted by said school district, for the purpose of constructing a new schoolhouse therein, and which the treasurer of said county, it was alleged, was proceeding to advertise and sell, under the statute. To the second amended complaint a demurrer was filed by appellees, which was sustained generally by the court, and judgment was entered for the appellees. From this judgment appellants prosecute this appeal.

Seven legal propositions were presented by the demurrer, which will be discussed here; the facts being stated in connection with the consideration of each separate point.

[1][2] The third, fourth, fifth, sixth, and tenth paragraphs of the complaint, to which the first and sixth paragraphs of the demurrer were addressed, alleged, in substance, that on or about the 5th day of March, 1914, a petition purporting to have been signed by 20 residents of said district, and no more, was presented to the county superintendent of schools of said county, asking that such superintendent order the school directors of school district No. 30, said county, to hold an election for the purpose of voting on the question of the issuance of $5,000 in bonds of such district for the purpose of erecting a new schoolhouse. This allegation is followed by others, showing that, pursuant to such petition, the superintendent ordered the board of directors to submit such question to the voters of such district; that the directors, pursuant to such petition and order, did so submit such question; and that at such election bonds were voted by a majority of one vote. The complaint further shows that such district already had a school building, and alleges that two of the signers of such petition were not qualified petitioners, setting up the ground of disqualification.

Appellees contend that the directors of the school district had the power and authority to call and hold the election of their own volition, the district having a school building, and that it will be presumed that the directors acted voluntarily in the matter, notwithstanding the petition to and order of the county superintendent.

Section 1542, C. L. 1897, authorizes the school directors of any school district to submit to the voters of their district at any annual or special election, called for that purpose, the question of the issuance of bonds for the purpose of constructing a school building. Under this section the proposition as to whether bonds shall be voted for a new building may be submitted to the voters of the district, upon the initiative of the directors, regardless of the fact that such district has or has not a school building. In 1899 the Legislature, by chapter 46, Laws of 1899, provided that the county superintendent of schools should have the power, in cases where any school district in his county does not own a schoolhouse, upon a petition signed by 20 residents of such school district, etc., to order the school directors of such district to submit the question of issuing bonds of such district for the purpose of building a schoolhouse, and gave the superintendent the right to remove directors for failure to submit such question when so ordered.

Appellees contend that chapter 46, supra, had no application to the election held in this case, it being governed by section 1542, C. L. 1897, which required no petition to or action by the county superintendent; that the complaint, failing to allege that the school directors acted against their own best judgment, or that they were coerced into calling the election by the order of the county superintendent, stated no cause of action, in this regard. The position taken by appellees is correct. There being a schoolhouse in this district, the county superintendent had no power or authority to order the directors to hold the election in question. Presumably the directors knew the law, and did not act in the premises because of the order issued by the superintendent. There existed statutory authority for the calling and holding of the election by the directors, and the statute was followed in the present case, in so far as we are advised by the complaint. The fact even that the directors thought they were acting under the act of 1899, rather than section 1542, supra, would not affect the case, if the acts done by them were legal under said section.

“The authority and power of officers are determined by the law, considered as a whole, and a mistaken conception on the part of an officer as to the statute under which he has acted will not affect the validity of his action, provided he actually had legal authority.” 29 Cyc. 1431.

In the case of Davis v. Brace, 82 Ill. 542, a county officer extended certain taxes. He thought he was acting under one statute, whereas his power to do the act was derived from another. The court said:

“It would seem, therefore, especially in a court of equity, wholly unimportant under what law the clerk intended to make the extension. It is sufficient that there is a law which confers authority to do what he has done.”

In the case of In re Rockaway Park Imp. Co., 83 Hun (N. Y.) 263, 31 N. Y. Supp. 386, the supervisors of a county recited a repealed statute as the source of their authority. The repealing statute conferred upon the board the power to do the act, which they undertook to do under the repealed statute. The court said:

“If the board thus had full power to do what they did, their action was not rendered illegal by a mistake in the recitation of the source of its power.”

See, also, Pope v. Davenport, 52 Tex. 206.

The above being true, the court properly sustained these paragraphs of the demurrer.

The seventh paragraph of the complaint was as follows:

“Seventh. Plaintiffs allege: That the majority of the qualified electors of said school district voting in said election did not vote for the issuance of the bonds of said district in that the following named persons, who voted for the issuance of the bonds of said district at said election, and whose votes were counted therefor, were not qualified electors and voters at said election: Willie Mae Culberson ...