Sanborn v. School-District No. 10, Rice County

• Decision Date: 01 January 1865
• Citation: 12 Minn. 1
• Parties: JOHN SANBORN v. SCHOOL-DISTRICT No. 10, RICE COUNTY.
• Court: Minnesota Supreme Court

Page 1

12 Minn. 1

JOHN SANBORN

v. SCHOOL-DISTRICT No. 10, RICE COUNTY.

Supreme Court of Minnesota.

Appeal by defendant from the judgment of the district court, Rice county.

The action was for the amount alleged to have been found due on an accounting between plaintiff and defendant for labor, money, and material done, advanced, and furnished by plaintiff to defendant in building a school-house. It appears that November 14, 1856, the district voted to build the house, authorized the trustees to raise the money, if necessary, and voted that the trustees expend not less than $1,000 on the

school-house; that the cost of the school-house was considerably in excess of $1,000, and the trustees accounted with plaintiff for labor done, material furnished, and money advanced by him in erecting it, and there was found due him therefor $1,146.66, for which, October 14, 1857, they gave him their note and executed the mortgage of the district on school lots to secure it. The execution of the mortgage was not previously authorized nor subsequently ratified by the district, and it was never foreclosed. At a meeting of the district, February 5, 1861, it was voted that plaintiff be requested to make a proposition on what terms he would settle. At the next meeting, March 4, 1861, plaintiff submitted a proposition in writing, offering to accept $1,250 in full of his claim, and the meeting voted to accept the proposition; and at a meeting June 26, 1861, the trustees were directed to pay the amount.

The facts in regard to the record book of the district, offered in evidence by the plaintiff at the trial, and the objections thereto, are stated in the opinion.

The following was the substance of defendant's requests to charge, except the first two, which the court held inapplicable to the case:

3. Any expenditure in excess of the amount voted by the district is void, and cannot be collected of the district.

4. Substantially the same as the third.

5. That a viva voce vote of the district was not such an acknowledgment as the statute of limitations contemplates.

6. That till exhausting the mortgage executed by the trustees the plaintiff cannot maintain this action.

7. That the action of a district meeting voting to ratify the action of its trustees, or to levy a tax to pay for the school-house, or to do any other act tending to ratify such action, or to recognize their acts as legal and binding, does not, if rescinded at an adjournment of the same meeting, or before the trustees or the creditors have done any act or changed their position on the faith of such ratification, operate to bind the district, and cannot be regarded as a ratification.

8. If there was an inherent defect of power in the district to authorize the doing of the act at the time it was done, it cannot subsequently ratify it.

9. Substantially the same as the seventh.

The court below refused each request, and plaintiff had a verdict, on which judgment was entered.

Cole & Case, for appellant.

Bachelder & Buckham, for respondent.

McMILLAN, J.

This action is brought to recover a sum of money alleged to have been found due to the plaintiff upon an accounting between the parties. Upon the trial of the cause, the plaintiff called William Lyon, the present clerk of the school-district defendant, and proposed to prove by him the authenticity of a book alleged to be the book of record of the district, at the time the cause of action is alleged to have accrued. The witness testified: "I did not receive the book from my predecessor in office, but did receive it from the plaintiff in this action; my predecessor was not present at the time the book was delivered to me by the plaintiff. I cannot say that the book is the record of the district." Without examining this witness further, the plaintiff called Thomas Bowles as a witness, who testified: "I am a resident of school-district No. 10; have been a resident of said district until within the last few months since 1855." The book was now handed to the witness by plaintiff's counsel, with the request to examine it and state if that was the book formerly kept by him as school-district clerk; to which defendant objected, and the objection was overruled, and defendant excepted. The book purports to be a record; it comes from the custody of the present clerk, and is identified by Bowles, a former clerk of the district, as the book of records kept by him as clerk. This is a sufficient authentication, prima facie. If it was not the record, the witness Lyon could have said so; he must know whether it is the record in his office, and it is evident it was. The plaintiff offered the book in evidence, which was objected to by the defendant —

1. That the book was not shown to come from the proper custody, and the custody from which it did come was not accounted for.

2. The witness was not a proper person to establish the authenticity of the book as the school-district record.

3. It does not appear that any of the meetings were legally and properly called.

The first two objections are already disposed of. The third, therefore, is to be considered, and in the consideration of this objection we may embrace all the objections to the record of specific meetings, which are substantially —

1. That it does not appear that the purpose for which the meetings were called was stated in the notice of meeting.

2. That it does not appear that any notice of either meeting was given.

3. It does not appear that the time and place of the meeting of October 5, 1857, termed an annual meeting, were fixed at the annual meeting previous thereto. The question raised by the first two objections is a question as to the burden of proof; not the necessity of giving a notice, or its essential requisite.

The statute under which this school-district defendant was organized, in prescribing the meetings of the district, provides that an annual meeting shall be held at the time and place previously appointed, and at such annual meeting the time and place of holding the next annual meeting shall be fixed; but no further provision is made for an annual meeting in case of failure to designate the time and place at the last meeting. It further provides that special meetings may be held whenever called by the trustees, or any two of them, and all notices of annual or special meetings shall be in writing, signed by the trustees or clerk of the district, and shall state the object for which the meeting is called, and shall be posted up in three public places of the district at least six days previous to the time of holding such meeting. Comp. St. p. 359, § 67.

It is further provided that "it shall be the duty of the clerk of such school-district —

"1. To record the proceedings of his district in a book to be provided for that purpose by the district.

"2. To give notice of annual or special meetings," etc. Comp. St. p. 359, § 68.

There is no other provision in the statute requiring any record of the notice of any meeting, or prescribing what shall be the evidence of such fact. It is provided by section 64, p. 358, that "the inhabitants entitled to vote in such district, or any portion of them not less than five in number, when lawfully assembled in any district, in any district meeting, shall have power, by a majority of the votes of those present," among other things, "(2) to adjourn from time to time as occasion may require; * * * (4) to designate a site for the district school-house; (5) to levy such tax (not exceeding $600 in any one year) on the taxable property in the district as the meeting shall deem sufficient to purchase or lease a suitable site for a school-house, and to build, hire, or purchase such school-house, and keep in repair and furnish the same with necessary fuel and appendages; (6) to repeal, alter, or modify their proceedings from time to time, as occasion may require; * * * (8) to designate the number of months a school shall be kept during the year; and when said district is organized, as above provided, it shall be to all intents and purposes a body corporate, capable of suing and being sued, and fully competent to transact all business appertaining to schools and school-houses in their own district, according to the provisions of this chapter."

Excluding from present consideration the further objection, subsequently noticed, to the admissibility of the record of the meetings of March 4, 1861, and subsequent thereto the record of each of the other meetings, except those held by regular adjournment, recites the fact that "pursuant to notice previously given in writing, agreeable to the provisions of statute, the legal voters of school-district No. 10 met," etc. If irrespective of the record of this character, the meeting having been held, the presumption would not be in favor of the regularity of the proceedings, under the present circumstances, we think, the clerk being required to give notice of the meetings, and to keep a record of the proceedings of his district in a book to be provided for the purpose, and no other mode of the record of the notice, or evidence of the same being prescribed by statute, the record is prima facie evidence of a regular notice. Doughty v. Hope, 3 Denio, 598; Briggs v. Murdock, 13 Pick. 306; 1 Greenl. Ev. § 493; Codman v. Winslow, 10 Mass. 150-1; Ang. & Ames, Corp. § 199. But it is objected that the record of the annual meeting of October 5, 1857, was incompetent "because it did not appear from the records or otherwise that the time or place of holding this meeting had been fixed at any previous meeting;" and we are cited to the case of Marchant v. Langworthy, and others, 6 Hill. 646, as directly in point. That decision was made under the New York statute, which contains the same provisions with reference to annual meetings that our statute does, but it also contains a provision for an annual meeting if the time is not designated as specified. 1 Rev. St. N. Y. (3d Ed.) pp. 541-2, §§ 87-9.

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