Morgan v. Independent School District No. 26-J in Elmore & Owyhee Counties

• Decision Date: 04 December 1922
• Citation: 211 P. 529,36 Idaho 372
• Parties: SHEPHERD MORGAN, on Behalf of Himself and All Others Similarly Situated, Appellant, v. INDEPENDENT SCHOOL DISTRICT No. 26-J in Elmore and Owyhee Counties, Idaho, a Municipal Corporation, and RILEY F. CASE, EDWARD W. ANDRUS, JOHN MCCABE, CURTIS L. SWAN, CHRIS GJORDING and MRS. JOSEPHINE ROBERTSON, as the Board of Trustees Thereof, Respondents
• Court: Idaho Supreme Court

211 P. 529

36 Idaho 372

SHEPHERD MORGAN, on Behalf of Himself and All Others Similarly Situated, Appellant, v. INDEPENDENT SCHOOL DISTRICT No. 26-J in Elmore and Owyhee Counties, Idaho, a Municipal Corporation, and RILEY F. CASE, EDWARD W. ANDRUS, JOHN MCCABE, CURTIS L. SWAN, CHRIS GJORDING and MRS. JOSEPHINE ROBERTSON, as the Board of Trustees Thereof, Respondents

Supreme Court of Idaho

December 4, 1922

JOINT INDEPENDENT SCHOOL DISTRICT - ORGANIZATION OF - MUNICIPAL CORPORATIONS-REQUISITES OF DE FACTO CORPORATION-COLLATERAL ATTACK-LAPSE OF TIME.

1. Where a joint common school district is located partly within two counties, under the provisions of C. S., sec. 872, the territory comprised in such district may be formed into a joint independent school district, for which purpose the same preliminary steps must be taken, and the same course pursued as in the organization of an independent school district lying wholly within one county, and the necessary organization proceedings may be had within the district as a whole and under the supervision of the board of commissioners of either county.

2. Held, that respondent district is a valid, legally existing joint independent school district.

3. The requisites of a de facto municipal corporation are: a law under which such a corporation as it purports to be might lawfully be organized, an attempt to organize thereunder, and actual user of the corporate franchise.

4. When the creation of a public corporation, municipal or quasi-municipal, is authorized by statute, and a corporation has been organized under the color of such authority, its corporate existence cannot be inquired into by the courts in a collateral proceeding. The validity of the incorporation can be determined only in a suit brought for that purpose in the name of the state or by some individual under the authority of the state who has a special interest which is affected by the existence of the corporation.

5. Under C. S., sec. 839, the regularity of the organization of a joint independent school district cannot be questioned in a collateral proceeding or otherwise after a period of six months from the date of the entry of the order establishing such district.

APPEAL from the District Court of the Third Judicial District, for Elmore County. Hon. Raymond L. Givens, Judge.

Action to enjoin issuance of bonds and levy of taxes. Judgment for defendants. Affirmed.

Judgment affirmed. Costs awarded to respondents.

W. H Langroise, for Appellant.

Under C. S., sec. 834, providing for the organization of independent school districts, the two jurisdictional requisites for the creation of such districts are, (1) filing with the board of county commissioners the requisite petition, and (2) the submission of the question to a vote of the electors. (Pickett v. Board, 24 Idaho 200, 133 P. 112.)

There can be no de jure or de facto corporation until these jurisdictional requisites are complied with. (City of Wardner v. Pelkes, 8 Idaho 333, 101 Am. St. 201, 69 P 64; People v. Town of Linden (Cal.), 40 P. 115.)

The corporate existence of a company which is neither a de facto nor a de jure corporation may be questioned in a private action to which it is a party. (Martin v. Deetz, 102 Cal. 55, 36 P. 368; Huber v. Martin, 127 Wis 412, 115 Am. St. 1023, 105 S.W. 1031, 3 L. R. A., N. S., 653; Dunbar v. Board, 5 Idaho 407, 49 P. 409.)

Perky & Brinck and Harry Keyser, for Respondents.

The user by the district of the functions and powers of an independent school district for the period of more than four years, its recognition by the two counties as such independent school district, its recognition by the state board of education as such, constitute it a de facto corporation, the organization of which cannot be attacked except in a direct proceeding in quo warranto. If in addition thereto a bona fide attempt to organize under the law be necessary, such bona fide attempt affirmatively appears. (14 C. J. 214; Dillon, Munic. Corp., sec. 67; McQuillin, Munic. Corp., sec. 151; Nelson v. School District, 181 Iowa 424, 164 N.W. 874; Gilkey v. Howe, 105 Wis. 4, 81 N.W. 120, 49 L. R. A. 483; Continental Trust Co. v. Toledo etc. R. Co., 82 F. 642; People v. Bowman, 247 Ill. 276, 93 N.E. 244; State v. Leatherman, 38 Ark. 81; State v. Harris, 102 Minn. 340, 12 Ann. Cas. 260, 113 N.W. 887, 13 L. R. A., N. S., 1193; Hamilton v. San Diego County, 108 Cal. 273, 41 P. 305; People v. Ellis, 253 Ill. 369, Ann. Cas. 1913A, 589, 97 N.E. 697.)

When the fact of the existence of a corporation de facto is established, it is the settled law that its existence de jure cannot be collaterally attacked; that is, by any other than the state under whose law its formation was sought, and then only in a direct proceeding. (Kardo Co. v. Adams, 231 F. 950; Hufford v. Herrold, 189 Iowa 853, 179 N.W. 53; Dunne v. Burbank, 190 Iowa 67, 179 N.W. 969; Connine v. Smith, 190 Mich. 631, 157 N.W. 450.)

Upon grounds of public policy, the organization of municipal corporations of long standing cannot be questioned, and even the state under such circumstances is estopped from questioning the validity of the organizations. (People v. Alturas County, 6 Idaho 418, 55 P. 1067, 44 L. R. A. 122; Pickett v. Board, 24 Idaho 200, 133 P. 112; State v. Carr, 191 F. 257; State v. St. Louis County, 117 Minn. 42, 134 N.W. 299; State v. Willis, 18 N.D. 76, 118 N.W. 820; Simpson v. Stoddard County, 173 Mo. 421, 31 S.W. 700; State v. McLean County, 11 N.D. 356, 92 N.W. 385.)

BUDGE, J. Rice, C. J., and Dunn, J., concur in conclusion, McCarthy, J., concurs.

OPINION

BUDGE, J.

This is an action to enjoin the issuance of bonds and the levy of taxes by respondent district. The cause was tried to the court without a jury. The court made certain findings of fact and conclusions of law, and entered judgment in favor of respondent, from which this appeal is taken.

The court found that appellant lives in Owyhee county, within the boundaries of respondent district, and owns land and other property therein, subject to taxation; that he is an elector, qualified to vote at any election hereinafter mentioned; that respondents Case, Andrus, McCabe, Swan, Gjording and Robertson are, and since August, 1917, they and their predecessors in office have been, the trustees of respondent district; that said district lies partly within Elmore county and partly in Owyhee county; that the territory now comprised in respondent district was duly organized in 1915 as a joint common school district, designated as joint school district No. 26-J, and duly and legally functioned as such until the summer of 1917; that during June and July, 1917, a petition was circulated throughout said district and was signed by more than one-fifth of those within said district who were qualified to vote at school elections, praying that an election be called to determine whether said territory should be organized into an independent school district. Said petition was not presented to the board of county commissioners of Owyhee county, but was presented to the board of county commissioners of Elmore county, which latter board, at a meeting duly and regularly held, considered said petition, found that the requisite jurisdictional facts appeared therein and existed, and that no protest was on file with said board, and thereupon ordered that the question be submitted to a vote of all the electors within said district who were authorized to vote for the levy of taxes and issuance of bonds, such election to be held on August 11, 1917, at the schoolhouse in said district, situated in Glenns Ferry, Elmore county. Due and legal notice of such election was given to all qualified electors residing within said district, both in Elmore and Owyhee counties, and said election was held at the time and place appointed. Qualified electors throughout the district, from both counties appeared and voted, and all of said electors so desiring, whether residing in Elmore or Owyhee county, and within said district, were permitted to and did vote, 45 votes being cast in favor of, and 21 against, the creation and organization of an independent school district. The election returns were duly and regularly certified to the board of county commissioners and the superintendent of public instruction of Elmore county and to the ex-officio clerk of the board of county commissioners and superintendent of public instruction of Owyhee county. Thereafter, on September 17, 1917, the board of county commissioners of Elmore county, pursuant to due and legal notice, met and received and canvassed the returns of said election, found that said election had duly and legally authorized the organization of respondent district, ordered that the territory comprised therein be declared an independent school district, designated "Independent School District Glenns Ferry No. 26-J in Elmore County," and appointed six trustees therefor, some of whom resided in Elmore and some in Owyhee county. Said district has since functioned under the name of "Independent School District No. 26-J in Elmore and Owyhee Counties," the letter "J" signifying that the district is a joint district.

The board of trustees met and organized as such on September 26 1917, since which time they and their successors have continued to function in all respects as, and to exercise all the rights of, a board of trustees of an independent school district, and through them the district has entered into contracts, employed principals, assistants and other teachers, levied taxes, handled school funds, issued warrants, defrayed expenses and paid bills, in all respects as a duly, regularly and legally organized joint independent school district. Each year since its organization, respondent district has made an...