Sand v. Peterson

• Court: North Dakota Supreme Court
• Citation: Sand v. Peterson, 30 N.D. 171, 152 N.W. 271 (N.D. 1915)
• Decision Date: 20 March 1915

152 N.W. 271

30 N.D. 171

SUMNER SAND, in His Own Behalf and in Behalf of All Other Taxpayers of Scott School District No. 12 of Adams County, State of North Dakota, Similarly Situated, v. O. F. PETERSON, J. A. Balsinger, Theo. Lokken, Paul M. Brown, and F. M. Jackson

Supreme Court of North Dakota

March 20, 1915

Rehearing denied April 10, 1915.

Appeal from the District Court, Adams County, Honorable W. C Crawford, Judge.

Action in equity by Sumner Sand against O. F. Peterson, J. A Balsinger, Theo Lokken, Paul M. Brown, and F. M. Jackson for a permanent injunction.

From an order denying a temporary injunction, pendente lite upon return of an order to show cause, plaintiff appeals.

Order affirmed.

Affirmed.

E. C. Wilson for appellant.

The presumption always is that a school district is common. Laws 1911, chap. 266, § 37.

A school district, being originally common, remains so, until legally organized into a special district. The procedure is purely statutory, and the provisions must be followed. The law requires the petition to be signed by one third of the "Voters" in the district. A "resident" is not necessarily a "voter." Dartmouth Sav. Bank v. School Dist 6 Dakota 332, 43 N.W. 822; School Dist. v. Pace, 113 Mo.App. 134, 87 S.W. 580.

The fact that one third of the voters have signed the petition must appear from the petition affirmatively. Potter v. Trustees of Schools, 10 Ill.App. 343.

Such petition must also give the boundaries of the territory to be organized. 35 Cyc. 837.

Even if it were a de facto district, the plaintiff must succeed. Dartmouth Sav. Bank v. School Dist. supra.

The petition for annexation is void on its face, because it fails to recite that the lands sought to be annexed are adjacent to the Hettinger district, and that it was signed by the requisite number of voters. Re Heidler, 122 Pa. 653, 16 A. 97; Re Wolfe, 8 Kulp, 181; Potter v. Trustees of Schools, supra.

The posting of notice of hearing on such petition is absolutely jurisdictional. Likewise, the publication, as by law provided. Graves v. School Inspectors, 102 Mich. 634, 61 N.W. 60; Huyser v. School Inspectors, 131 Mich. 568, 91 N.W. 1020; Howard v. Forrester, 109 Ky. 336, 59 S.W. 10; Noble v. White, 25 Ky. L. Rep. 1282, 77 S.W. 678; Re Clearfield Independent School Dist. 79 Pa. 419.

The purpose of annexation is for relief and convenience. 35 Cyc. 856 (3); Re Wolfe, 8 Kulp, 181.

Paul W. Boehm and F. M. Jackson, for respondents.

The rightful existence of a corporation cannot be raised in a collateral proceeding, or by private individuals. The question can only be raised by the state. 10 Enc. L. & P. 256; St. Paul Gaslight Co. v. Sandstone, 73 Minn. 225, 75 N.W. 1050; Gilkey v. How, 105 Wis. 41, 49 L.R.A. 483, 81 N.W. 120; State v. Fuller, 96 Mo. 165, 9 S.W. 583; Miller v. Perris Irrig. Dist. 85 F. 693; Shapleigh v. San Angelo, 167 U.S. 646, 42 L. ed. 310, 17 S.Ct. 957, and cases cited; 28 Cyc. 174, note 55; Kuhn v. Port Townsend, 12 Wash. 605, 29 L.R.A. 445, 50 Am. St. Rep. 911, 41 P. 923.

The order made by the board of education, that the territory be annexed, presumes regularity in all steps in the annexation proceedings. Greenfield School Dist. v. Hannaford Special School Dist. 20 N.D. 393, 127 N.W. 499; Jones Ev. §§ 41, 42; Bank of United States v. Dandridge, 12 Wheat. 64, 69, 6 L. ed. 552, 554; Nofire v. United States, 164 U.S. 657, 41 L. ed. 588, 17 S.Ct. 212; Hayes v. United States, 170 U.S. 637, 42 L. ed. 1174, 18 S.Ct. 735.

The proceedings were legal and regular in all respects. Redfield School Dist. v. Redfield Independent School Dist. 14 S.D. 229, 85 N.W. 180; Wood v. Bangs, 1 Dakota 179, 46 N.W. 586; Grant County v. Colonial & U. S. Mortg. Co., 3 S.D. 390, 53 N.W. 746.

F. E. FISK, District Judge. BURKE, J., not participating, F. E. FISK, District Judge, sitting by request.

OPINION

F. E. FISK, District Judge.

This is an appeal from an order of the district court of Adams county dissolving a temporary restraining order and refusing to grant a temporary injunction upon a hearing of an order to show cause why a temporary injunction should not issue pendente lite.

The material allegations of the complaint are as follows:

1. "That prior to January 25, 1913, defendants formed and associated themselves together under the name and style of 'the Board of Education of Hettinger School District No. 13.'

"2. That Hettinger school district No. 13 is, and has been during all of the times hereinbefore referred to, a common-school district of said county, principally comprised of township 129 of range 96.

"3. That it is not possible for said common-school district to have a board of education, nor never has been, nor were any of said defendants ever elected or appointed as members of any such board. That such school district is, and always has been, governed by a district-school board consisting of three members.

"4. That township 129 of range 95 of said county is called 'Scott school district No. 12.'

"5. That plaintiff is a resident, legal voter, and taxpayer of said county and Scott school district, and the owner of 146 acres of land therein, and an undivided half of another tract of land of 160 acres, all within the limits of such district, and also a large amount of personal property.

"6. That at a special meeting of said defendants on January 25, 1913, there was an application in writing presented to them under their fictitious name of 'the Board of Education of Hettinger School District No. 13' in words and figures, to wit:

'Hettinger, N.D., January 18, 1913.

We, the undersigned, legal voters of and within the territory hereinafter described, do hereby petition the Honorable Board of Education of Hettinger School District No. 13 of the state of North Dakota to attach and embrace for school purposes, to the said Hettinger school district No. 13, the following described territory lying and being in the county of Adams and state of North Dakota, to wit: All of sections 6, 7, 8, 18, 17, 19, west half and the northeast quarter of section 20; west half of the northeast quarter and the northeast quarter of the southeast quarter of section 20; west half of section 30; north half of northwest quarter, southwest quarter of northwest quarter of section 29; west half of the northwest quarter, west half of the southwest quarter section 16; southwest quarter of the northwest quarter, west half of southwest quarter section 9; west half of northwest quarter, southeast quarter of northwest quarter, and the southwest quarter of section 5, all in township 129 north, range 95 west, fifth principal meridian.'

[9 signatures attached].

"That thereupon said defendants, unlawfully assuming to act as and under their said fictitious name of 'the Board of Education of Hettinger School District No. 13,' pretended to grant the prayer of said application without any notice of hearing, and on the 26th day of February, 1913, made, issued, and entered upon the records of said district-school board an order in form, attaching and annexing said territory to said Hettinger school district No. 13 for school purposes, without either publishing or posting notices of hearing.

"7. That said defendants are now threatening and making preparations to further their unlawful purpose of annexing said territory to said Hettinger school district, and they as said pretended board of education are about to unlawfully select and appoint an arbitrator, and to cause the district-school board of said Scott school district to likewise select an arbitrator, and to then cause said two arbitrators and the county superintendent of schools of said county to act as a board of arbitration and to unlawfully effect an equalization of property, funds on hand, and debts as between said two school districts, and to thereby deprive this plaintiff of his property, school privileges, and advantages naturally belonging to him and to his said land, and to burden him and his property with debts and heavy taxation, and thereby do him an irreparable injury, for which he has no adequate remedy at law.

. . . .

"8. That much of said territory is more than 3 miles distant from the central school of said Hettinger district.

. . . .

"9. That the purpose of said annexation is to obtain from and to deprive said Scott school district of its taxes for school purposes, and to bring more property for taxing purposes within the limits of said Hettinger district. That the signers upon said application are not the real parties in interest, but the entire plan and purpose of said annexation is that of said defendants, and they are using said signers as the means and instruments to effect such annexation under color of right, and in taking advantage of the depopulated condition of said territory outside of said sections 6, 7, and 18.

"That none of the signers of said application are residents of said Scott school district, nor are any of them voters therein for school purposes, nor were they at the time of said signing."

This complaint was duly verified by the plaintiff, and, together with the following affidavit of plaintiff's attorney, E. C. Wilson, constituted the basis for the issuance of the order to show cause and the temporary restraining order, and was the only proof offered by plaintiff upon the hearing of such order to show cause, which resulted in the order complained of being made.

Affidavit.--"E C. Wilson, being duly sworn, says that he is the attorney for the plaintiff in the above-entitled action, and as such drew the accompanying complaint therein; that he has had under consideration from a legal standpoint all of the acts and proceedings leading up to and forming the basis of the actions threatened to now be done by said defendants, and he has...