McEvoy v. Christensen
| Decision Date | 19 September 1916 |
| Docket Number | 31292 |
| Citation | 159 N.W. 179,178 Iowa 1180 |
| Parties | PATRICK MCEVOY et al., Appellants, v. JAMES P. CHRISTENSEN et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED, SATURDAY, JANUARY 13, 1917.
Appeal from Pottawattamie District Court.--THOMAS ARTHUR, Judge.
SUIT to cancel the levy and enjoin the collection of taxes for school purposes of the Consolidated Independent School District of Beebeetown, resulted in the dismissal of the petition. The plaintiffs appeal.
Affirmed.
Addison G. Kistle and Viggo Lyngby, for appellants.
R. B McConlogue, Roadifer & Roadifer and C. W. Kellogg, for appellees.
An election was held in the schoolhouse of Prairie View Independent School District in Harrison County on August 15, 1914, to determine whether the Consolidated Independent School District of Beebeetown should be organized, composed of the districts and parts of districts described in a petition duly approved by the county superintendents. A majority of those voting favored the proposition, and directors were chosen January 26th following. On August 14, 1915, the board of directors fixed the amount required for the general fund as $ 6,000, and that necessary to meet the interest on bonds to be issued at $ 650, and certificates were made out accordingly, and filed with the respective auditors of Harrison and Pottawattamie Counties. The levy of 31 mills necessary to raise this was regularly made in Harrison County, but the levy in Pottawattamie County, within which were four sections of land included in the new district, appears on record under the column headed "Teachers' Fund." The levy was higher than previously made for school purposes in any of the districts consolidated, and it appears that about $ 2,000 had been turned over by the several districts to the new district, and was on hand. Other facts essential to a full understanding of the case will appear as we proceed with the discussion.
I. The limit for the support of consolidated schools such as contemplated is fired by Section 2794a, Per. b, Code Supplemental Supplement, 1915, at $ 50 per pupil residing in the district; and it is argued that, since over $ 2,000 was on hand, the certification of $ 6,000, as required, would exceed this sum. But the limitation is of the "levy for the general fund of said school . . . which shall not exceed $ 50 for each person of school age, " and not a limitation on the amount that may be on hand at any one time. In other words, the resources of the district to be considered by the directors are not involved in the limitation of the additional sum which may be raised by levy. As there were 129 pupils, the levy was within the limitation of the statute.
II. Nor is the circumstance that the record of the board of supervisors of Pottawattamie County indicated that the levy of 31 mills was for the "Teachers' Fund" of any consequence. It appeared that the levy was for the purposes of a consolidated independent school district; and, as this could only be for the "general fund," the error manifestly was merely clerical,--a mere irregularity,--in no manner affecting the validity of the levy. See S. C. & St. P. R. Co. v. County of Osceola, 45 Iowa 168; Robbins v. Magoun, 101 Iowa 580, 70 N.W. 700.
III. Section 2794-a of the Supplemental Supplement to the Code, 1915, provides that, "when a petition describing boundaries of contiguous territory containing not less than 16 sections within one or more counties is signed by one third of the electors residing on such territory," and approved by the county superintendents of schools, the question of the organization of a consolidated independent school district thereof shall be submitted at an election to be called as therein directed, at which election "all voters residing in the proposed consolidated district shall be entitled to vote by ballot for or against such separate organization." The parties stipulated that a witness would have testified, if present, subject to objection, that less than one third of such electors signed the petition, if women over 21 years of age residing in the district were counted as electors, but that no women presented themselves to vote or voted. There were no ballots at the election booths with the words "Woman's ballot" printed thereon.
The law required the board of directors of the school corporation within the proposed district "having the largest number of voters" to ascertain whether the petition filed was "signed by one third of the electors residing on such territory," and only upon so finding to call the election. Whether the correctness of its decision may be questioned in this proceeding is not broached by either party, save as raised by the plea of former adjudication, and therefore is not considered. But see Jordon v. Hayne, 36 Iowa 9, and Ryan v. Varga, 37 Iowa 78. It may be assumed that the board concluded that the statute, by using the words "electors residing in such territory," meant males possessing the qualifications of voters. An elector is defined by Bouvier's Dictionary as "one who has the right to vote for public officers; one who has the right to vote." In O'Flaherty v. City of Bridgeport, 64 Conn. 159 (29 A. 466), it is said:
The same view is expressed in In re Application of Carragher, 149 Iowa 225; State v. Tuttle, 53 Wis. 45 (9 N.W. 791); Bergevin v. Curtz, 127 Cal. 86 (59 P. 312); and City of Beardstown v. City of Virginia, 76 Ill. 34, 39. See, also, Coggeshall v. City of Des Moines, 138 Iowa 730, 736, 117 N.W. 309.
Whenever the legislature employs the word "elector," without qualification or explanation, the word may be assumed to have reference to persons authorized by the Constitution to exercise the elective franchise. That instrument (Section 1 of Article 2) defines who are electors:
"Every male citizen of the United States, of the age of 21 years, who shall have been a resident of this state 6 months next preceding the election, and of the county in which he claims his vote, 60 days, shall be entitled to vote at all elections which are now or hereafter may be authorized by law."
Section 1131, Code, 1897, does not purport to enlarge these qualifications, nor to declare women electors. It merely specifies certain subjects upon which discrimination will not be tolerated, by providing that:
"The right of any citizen to vote at any city, town or school election, on the question of issuing any bonds for municipal or school purposes,...
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