Olson v. Coalfield Sch. Dist. No. 16 of Divide Cnty.

• Decision Date: 11 October 1926
• Docket Number: No. 5164.,5164.
• Citation: 54 N.D. 657,210 N.W. 180
• Parties: OLSON et al. v. COALFIELD SCHOOL DIST. NO. 16 OF DIVIDE COUNTY et al.
• Court: North Dakota Supreme Court

54 N.D. 657

210 N.W. 180

OLSON et al.

v.COALFIELD SCHOOL DIST. NO. 16 OF DIVIDE COUNTY et al.

No. 5164.

Supreme Court of North Dakota.

Aug. 12, 1926.

Rehearing Denied Oct. 11, 1926.

Syllabus by the Court.

When a court decision provides that judgment shall be entered, but without prejudice to the right of the defendants to have litigated and determined on its merits the question of estoppel, the right to litigate such question in another action is preserved to the defendants, and the entry of said judgment is not a bar to such further action.

When a high school is organized, taxes levied, buildings being constructed, teachers employed, and a high school conducted with between 30 and 40 pupils for a period of 9 months without opposition, it is then too late to object. The inaction and acquiescence of the plaintiffs in the organization and conduct of the high school in question in the case at bar is such laches as estops them from questioning the regularity of the organization proceedings.

Appeal from District Court, Ward County; A. G. Burr, Judge.

Action by Jonas Olson and others against Coalfield School District No. 16 of Divide County and others for an injunction. From a judgment for plaintiffs, defendants appeal. Reversed, with instructions.Sinkler & Brekke and McGee & Goss, all of Minot, for appellants.

F. J. Funke, Dudley L. Nash, and B. H. Bradford, all of Minot, for respondents.

BURKE, J.

[1] This is an action brought to restrain and enjoin the Coalfield school district No. 16, Brown school district No. 40, the officers of said school districts, and the board of education of the village of Kermit in Divide county from in any manner proceeding to further organize, operate, or continue a high school known as the Noonan district high school in Divide county, N. D.

In February, 1925, Jonas Olson, Perry Smithberg, Lars Dalager, and Oscar Morseth started a special proceeding to determine the validity of the organization of said high school. That action finally reached this court (Olson v. Coalfield School District No. 16, 208 N. W. 154). In that case, this court held that the Legislature had provided two methods for the organization of high schools, one for the organization of a high school in a special district, and one for the organization of a high school in a common school district, and that each is intended to be exclusive of the other; that is, a high school in a common school district can only be organized under the law prescribed by the Legislature for such organization, and likewise the organization of a high school in special district can only be organized under the law provided for that purpose.

In the organization of the high school the three districts acted under the law for the organization of a high school in common school districts, and if all three of the school districts interested had been common school districts, the organization would have been regular and legal. However, in the organization they included one special school district, and therefore the organization was irregular and illegal.

The defendants petitioned for a rehearing and alleged:

“The organization of said district high school was consummated on the 7th day of June, 1924, and ever since said district high school has been in operation, that after the election organizing the said district high school no contest of the said election was instituted and no proceedings were had to declare the said organization of said district high school illegal until February 7, 1925, and that the plaintiffs in this action stood by and without objection permitted the organization to go forward, and allowed and permitted without objection the expenditure of large sums of money, the levying of taxes, the hiring of teachers, the actual conduct of the high school for several months, the creation of indebtedness, the contribution of money by private citizens to aid in the construction of the high school building, and the expenditure of such money contributed in such construction, and many other things sufficient to create an estoppel against the plaintiffs.”

They then quoted figures amounting in all to $9,793.24, as money invested or debts incurred in the organization of said high school, all of which was supported by the affidavit of the clerk of the district high school board.

In finding 6, the trial court in the original proceeding found as a fact that an election was held in each of the three school districts on the 7th day of June, 1924, at which a majority in each district voted that the building owned by the Kermit school district be purchased for the sum of $5,000 and erected on the site selected for the high school in the Coalfield district. In the answer there were the following allegations:

“That in each of said districts at said elections it was decided and determined to establish the site of the said district high school for the said three districts, all of which districts are adjacent, in the town of Noonan in Coalfield school district, and that a site was then and there selected for such district high school by each of said districts, which site was located at Coalfield School district, and it was further decided and determined that, at each of the said school district elections hereinbefore mentioned held on said 7th day of June, 1924, the building owned by the Kermit school district should be purchased from said Kermit school district for the sum of $5,000, and that same should be erected on the site selected in the Coalfield school district; that after the said election was held and in reliance on said election a basement was dug at the site of the said location selected for said district high school in said Coalfield school district and a foundation constructed and erected for the purpose of erecting the said purchased schoolhouse thereon.”

On page 4 of defendant's brief in the original proceedings there is the following argument:

“After these districts had so organized a district high school, Coalfield expended large sums of money constructing a basement and erecting the foundation for the purpose of moving the Kermit four-room school building to Noonan and to carry out the will of the people of those districts as expressed in those elections. Not only that, but the said districts voted and issued bonds for the purpose of going on with this educational work, except Brown school district. These districts have expended large sums of money in an effort to get this district high school in operation. Brown school district attempted to issue bonds some time ago for the purpose of constructing, erecting, and maintaining under this organization their proportionate share of the project. They were enjoined, and rightly so, because the election was called without having a petition signed and filed as provided by section 1185 of the Compiled Laws. Then an election was called for the 9th day of February, and this action was commenced which prevented the holding of such election.”

The trial court found as facts the allegations in the answer to be true, which, considered with the argument in the plaintiff's brief, indicates that the defendants relied upon the question of estoppel. In considering the case on rehearing, this court concluded that the question of estoppel could not be determined appropriately in the proceeding before it. With all of this in view, on rehearing this court said:

“It seems to us that, in view of the pleadings in the case and the issues as made thereby, and considered and determined by the trial court, it is not now possible to remand...