Sch. Dist. No. 28 of Lake & Missoula Counties v. Larson
| Decision Date | 16 November 1927 |
| Docket Number | No. 6183.,6183. |
| Parties | SCHOOL DIST. NO. 28 OF LAKE AND MISSOULA COUNTIES v. LARSON, County Superintendent of Schools (SCHOOL DIST. NO. 21 OF LAKE AND MISSOULA COUNTIES, Intervener). |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Lake County; Theodore Lentz, Judge.
Suit by School District No. 28 of Lake and Missoula Counties against Carrie Larson, as County Superintendent of Schools of Lake County, in which School District No. 21 of Lake and Missoula Counties intervened. Judgment for plaintiff, and defendant and intervener appeal. Affirmed.
Grover C. Johnson, of Polson, and Thomas N. Marlowe and Charles N. Madeen, both of Missoula, for appellants.
Walter L. Pope, of Missoula, and A. J. Brower, of Ronan, for respondent.
School district No. 28 has been a joint public school district, situate partly in Lake county and partly in Missoula county. A petition, addressed to the county superintendent of schools of Lake county and the county superintendent of schools of Missoula county, and praying for the creation of a new school district out of certain territory of the joint district, was presented to those officials. The territory sought by the petition to be made a new district comprised the southern part of the joint district, and included territory in each of the counties, so the proposed new district would be, itself, a joint district, and would have within its boundaries all of the territory of Missoula county that was in district No. 28, as well as some situate in Lake county. The petition was signed by a majority of the school electors residing within the proposed new district. Furthermore, it recites that it is signed by parents of more than ten school children residing within the proposed new district. There was a schoolhouse within the boundaries of the proposed new district, and there were in district No. 28 several schoolhouses which were not in the proposed new district.
The petition was filed, and, December 31, 1926, at Polson, the county seat of Lake county, a hearing thereon was held by both county superintendents, and, as a result, that night, the night of December 31, there was made and signed by both of those officials an order granting the petition, and purporting to create the proposed new joint district. The order did not describe the boundaries of the new district it assumed to create, but recited that “said petition for the creation and organization of a new joint school district as described in said petition is hereby granted and allowed.” It appears that the order was made in duplicate, and that each of the officials retained one for the files of her office. The term of office of Mary E. Eckstein, county superintendent of Lake county, expired that night, at midnight. She was succeeded by Carrie Larson, defendant herein. Aurelia Boles, county superintendent of Missoula county, succeeded herself.
January 3, 1927, at Missoula, Montana, Superintendent Boles wrote to Superintendent Larson, at Polson, and informed the latter that she, Superintendent Boles, had added to the order in her office a description of the boundaries of the new district, as set forth in the petition, writing it at the bottom, beneath the signatures of the officials; and, also, that she had written at the top of the order a heading, as follows:
“Order creating a school district out of a portion of school district No. 28, Missoula and Lake counties, state of Montana, said district to be known as school district No. 21.”
In her letter Superintendent Boles asked that Superintendent Larson make the same additions to the order in her office, or send it to Superintendent Boles, that she might make them. It appears that Superintendent Larson did the latter; that Superintendent Boles made like additions to the order sent her by Superintendent Larson, and returned it to that official.
Thereafter an appeal from that order to the boards of county commissioners of Lake and Missoula counties was taken by certain dissatisfied electors and taxpayers of district No. 28. The appeal was heard at a joint session of the boards, held at Polson. The result was that the commissioners of Lake county, at that time, or soon thereafter, made an order reversing the order appealed from; that the commissioners of Missoula county refused to take action at that time and place, but, at a later date, and at Missoula, county seat of Missoula county, made an order affirming the order appealed from.
Trustees for the supposedly created new joint district were appointed by the county superintendents of the two counties, but it appears that they have never functioned. It appears further that the trustees of district No. 28 have refused to recognize the order of the two superintendents in undertaking to create a new district or their action in appointing trustees for the supposed new district, and that the trustees of the old district have continued to exercise control over the schoolhouse in the supposed new district and the school therein conducted.
March 21, 1927, the county superintendent of Lake county, the defendant herein, called a meeting of the trustees of district No. 28 and the trustees of the supposed new district, known as District No. 21, to be held March 28, 1927, “for the purpose of apportioning the moneys and adjusting the indebtedness between the aforementioned districts,” and caused notice thereof to be served on all of the parties for whom the call was intended.
Thereupon the plaintiff herein, district No. 28, brought this suit to enjoin the defendant from proceeding in the premises as indicated in her call for such meeting, and to enjoin her from dividing with the supposed new district the funds of the plaintiff district or its property, and from taking, with respect to the supposed new district, any and all action whatsoever which would in any manner withdraw from the plaintiff district any of its funds or other property.
The complaint alleges the foregoing narrated facts; also that the petition for the creation of a new district was never presented to nor acted upon by the trustees of plaintiff district; that the order of the two county superintendents for the creation of a new district is wholly void, and all of the proceedings relating thereto are void; that plaintiff district has large sums of money constituting its school funds, all of which are needed by it for the purpose of maintaining its schools; that it has much permanent property, real and personal, all of which is needed for the conduct of its schools; that defendant threatens to, and, unless restrained, will, divide such money and other property, and deliver a part thereof to those assuming to be trustees of the supposed new district; that, if plaintiff district should be thus deprived of a part of its money and other property, the same would be dissipated and wholly lost to plaintiff, to its great and irreparable injury; that it has no adequate remedy at law. Some other necessary allegations are made. The complaint prays for appropriate injunction, equitable relief, and costs. With the complaint was filed and presented a motion for a temporary injunction.
An order to defendant to appear and show cause was issued and served, accompanied by a restraining order. At the appointed time defendant appeared by counsel. At the same time appeared other attorneys, who stated that they appeared for district No. 21, represented to be the real party in interest. They asked to be allowed to file a plea in intervention, setting up the claims of that district or supposed district. It was allowed to be filed pro forma, to be passed upon and disposed of at the end of the hearing to be had. Thereupon the plea in intervention was filed. It alleges what it represents to be the facts of the creation of what is denominated district No. 21. Such alleged facts do not differ materially from those alleged in plaintiff's complaint. It alleges further that the creation of the supposed new district is lawful and regular, and that it is entitled to a portion of the money and other property held by plaintiff district, and needs the same; that the trustees of plaintiff district wrongfully and illegally claim the right to exercise control over the schoolhouse situate in what is denominated district No. 21 and the school therein held. It admits that the petition for the creation of the proposed new district was not presented to the trustees of plaintiff district. It denies plaintiff district's right to the relief by it prayed for, and asks that its complaint be dismissed, and asks for other relief.
A hearing to the court was had. Plaintiff offered all of the evidence which was offered. There is no conflict in the evidence. The hearing left only questions of law to be decided by the court. It was agreed by counsel that the plea in intervention should be, not only the plea of the intervener, denominated district No. 21, but should be deemed the answer of defendant; also that the hearing should be deemed, and should constitute, a final trial of the merits of the cause, and that the decision of the court should be a final decree and judgment in the cause. Thereupon the court took the cause under advisement.
Thereafter the court rendered its decree and judgment, sustaining the contentions of plaintiff; adjudging the order for creation of a new district to be wholly void and all proceedings relating thereto void; adjudging the supposed district No. 21 to have no valid or legal...
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