Newberry v. Starr

• Decision Date: 20 June 1929
• Docket Number: No. 77.,77.
• Citation: Newberry v. Starr, 247 Mich. 404, 225 N.W. 885 (Mich. 1929)
• Parties: NEWBERRY et al. v. STARR et al.
• Court: Michigan Supreme Court

247 Mich. 404

225 N.W. 885

NEWBERRY et al.

v.STARR et al.

No. 77.

Supreme Court of Michigan.

June 20, 1929.

Error to Circuit Court, Oakland County; Glenn C. Gillespie, Judge.

Information in quo warranto by Burton Newberry and others against Clara Ellen Starr and others.Judgment for defendants, and plaintiffs bring error.Affirmed.

Argued before the Entire Bench.

Fellows, J., North, C. J., and Sharpe, J., dissenting.Pelton & McGee, of Pontiac, and Arthur E. Moore, of Royal Oak, for appellants.

W. C. Hudson, of Royal Oak, for appellees.

CLARK, J.

ActNo. 169, Public Acts of 1927, was approved on May 14 and given immediate effect.We quote a part of section 1: ‘Any incorporated city having within its boundaries portions of five or more school districts shall be a single school district which boundaries shall be coterminous with the boundaries of said city.Said school district shall be known as the ‘School District of the City of _____.’Said school district shall be organized and governed as provided for third class district under the provisions of act number one hundred sixty-six of the public acts of nineteen hundred seventeen and any amendments in force at the time this act takes effect and any amendments that may hereafter be enacted, and by the general school laws of the state not inconsistent herewith.Within thirty days after this act shall take effect, the city clerk of said city shall call an election within said city at a time and place to be designated by him for the election of seven members of the board of education whose terms, manner of qualifying, organization of the board, and officers shall be as provided for third class districts in said act number one hundred sixty-six of the public acts of nineteen hundred seventeen, as amended.'

Section 2 provides of division of assets and liabilities with other districts, section 3 of distribution of primary school money and of taking census, and section 4 of territory outside the district created.The city of Royal Oak had within its boundaries portions of five or more school districts.The city clerk did not call a special election within the period of 30 days, but he did call one to be held onJune 11, 1928, at which a board of education was elected.Information in quo warranto was filed by the plaintiffs against defendant school district of the city of Royal Oak and the members of its board of education, to test the existence of the defendant district and the right to office of the said board members.Defendants had judgment.Plaintiffs bring error.

ActNo. 169 was repealed by Act 319, Public Acts of 1927, a codification of school laws, which took effect September 4, 1927, the expiration of 90 days from the end of the legislative session.

If the defendant district was ‘organized and existing under the laws of this state’ on September 4, 1927, it is now a district, for section 1 of chapter 6 of Act 319 provides that all such districts ‘shall constitute and continue to be a school district under this chapter.’

In the quoted language of section 1 of Act 169, it will be seen that a district created by the act is to be ‘under the provisions of ActNo. 166 of the Public Acts of 1917,’ etc.That act contained a provision that it was not to take effect in any district until approved by a majority of school electors voting thereon at an election at which the question was submitted.It is clear that the Legislature adopted by reference in Act 169 the provision of Act 166, but without that relating to approval by the electors, for it is not to be thought that the Legislature created a school district and at the same time permitted the electors thereof to say whether or not the district was to have any governing laws, and it was directed to proceed under that act.

Act 169 did create a school district.It described the district, gave it a name, and by reference defined its powers.The failure of the clerk to do a ministerial act, to call a special election to provide a board, and that for a time the district had no board did not nullify the statute, did not destroy the corporation created.A school district may lose its board without thereby losing its corporate existence.

The chief question in the case is the right of the Legislature to give Act 169 immediate effect.Section 21, art. 5, State Constitution provides, in part: ‘No * * * act shall take effect or be in force until the expiration of ninety days from the end of the session at which the same is passed, except that the legislature may give immediate effect to acts making appropriations and acts immediately necessary for the preservation of the public peace, health or safety by a two-thirds vote of the members elected to each house.’

The trial judge, in an opinion filed after quoting from MacQueen v. Port Huron City Commission, 194 Mich. 328, 160 N. W. 627: ‘Fundamentally, provision for and control of our public school system is a state matter, delegated to and lodged in the statelegislature by the constitution in a separate article entirely distinct from that relating to local government.The general policy of the state has been to retain control of its school system, to be administered throughout the state under state laws by local state agencies organized with plenary powers independent of the local government with which, by location and geographical boundaries, they are necessarily closely associated and to a greater or less extent authorized to co-operate.Education belongs to the state.It is no part of the local self-government inherent in the township or municipality except so far as the legislature may choose to make it such’-said:

‘Keeping in mind the duty of the state to provide proper educational facilities, and, the control and regulation which the legislature has always exercised over such state agencies, it is clear that a statute providing for the consolidation of school districts stands on a different footing, so far as the constitutional provision under which acts may be given immediate effeect is concerned, than a statute which merely affects the rights of a citizen of the state.At the time of the passage of the act the general statutes fixed many definite dates at which the officers of school districts must perform official acts.The machinery provided by law for the carrying on of the functions of school districts depended upon the performances by such officers of certain duties at fixed times.

‘For illustration, the valuation of any whole school district for the purpose of taxation was the assessed value of the property contained therein as fixed by the board of review at its annual meetings (Sec. 5644, C. L., '15); the school district board between the second Monday in July and the first Monday in August must make out and deliver to the township clerk a report of all taxes to be voted (Sec. 5667, C. L., '15); the supervisor of each township must assess a one mill tax upon the township and report the aggregate amount of such assessments to the clerk who in turn must report the amount to each school district before September first (Sec. 5700, C. L., '15); the annual school district meetings for the election of school officers and the transaction of other business of the district must be held on the second Monday in July and the school year commences on the same date (Sec. 5661, C. L., '15); the county treasurer must apportion the fines paid, etc., to the various school districts before August first (Sec. 5750, C. L., '15); the superintendent of public instruction between the 5th and 15th day of July in each year must apportion 95 per cent of the primary school interest fund among the several cities and townships in proportion to the number of children, etc. (Sec. 5644, C. L., '15); the township clerk on the first Monday in August must report to the superintendent of public instruction the number of school districts in his township with a statement of the amount of money raised for school libraries (Sec. 5694, C. L., '15), and the county treasurer must furnish to the superintendent of public instruction before July first, following the receipt of assessment rolls, a statement of the assessed valuation of each school district, etc., within his county (Sec. 5644, C. L., '15).

‘A more searching examination of the statutes relating to the duties of school district officers and the conduct of the affairs of school districts would serve to emphasize the necessity of giving immediate effect to any act relating to the consolidation of school districts, if the operation of the new district were to be carried on without interruption.If the new district created by the act was to function during the ensuing school year it was necessary that the act be given immediate effect, so the taxable property of the new district might be determined and the necessary funds provided to meet the expenses of the district.The officers of the district, under the general school laws, were expressly charged with the responsibility of providing for the safety of the school buildings and the health and physical well being of the pupils who were in attendance.Certainly no more important duty rests upon the legislature than to provide adequate and proper educational facilities for the youth of the state, and I do not believe it will be said the orderly and continuous operation of the primary school system is not necessary for the preservation of public peace, health and safety.’

The board may close the school and may say temporarily who shall be excluded from it during an epidemic of smallpox or other contagious disease, Mathews v. Kalamazoo Board of Education, 127 Mich. 530, 86 N. W. 1036,54 L. R. A. 736, and it is the duty of the board to enforce proper health regulation requiring exclusion from school, during the prevalence of smallpox, People v. Lansing Board of Education, 224 Mich. 388, 195 N. W. 95.

A few powers or duties usually conferred on district boards under law of the time were:...