Sch. Dist. No. 94 v. Thompson

• Citation: 27 N.D. 459,146 N.W. 727
• Parties: SCHOOL DIST. NO. 94 v. THOMPSON et al.
• Decision Date: 14 April 1914
• Court: United States State Supreme Court of North Dakota

27 N.D. 459

146 N.W. 727

SCHOOL DIST. NO. 94

v.THOMPSON et al.

Supreme Court of North Dakota.

April 6, 1914.

On Petition for Rehearing, April 14, 1914.

Syllabus by the Court.

Plaintiff seeks to perpetually enjoin defendants, as officers of a special school district, from annexing certain adjacent territory to such district for school purposes, under section 133, c. 266, Laws of 1911, alleging as grounds for such relief that the special district had unlawfully incurred an indebtedness exceeding the constitutional debt limit; and also that the petition for such annexation was not signed by qualified school voters in such adjacent territory.

Held, that the first ground alleged is of no avail; it being wholly immaterial under such statute.

Held, further, that the sole issue for trial under the pleadings is whether the signers of the petition were, in fact, residents and school voters in such adjacent territory, and, on trial de novo, the trial court's finding thereon in defendants' favor is adopted by this court.

The petition for the annexation of adjacent territory to a special district for school purposes need not set forth all the facts, the existence of which are required by the statute to authorize the board to act. It is for the board of the special district to determine, before allowing such petition, whether the jurisdictional prerequisites, in fact, exist authorizing it to grant the prayer of the petitioners.

The fact that the petitioners were not owners of the real property sought to be annexed is not material; the statute merely requiring that they be school voters in such adjacent territory. Nor does the fact that such petitioners contemplated a removal from such lands at a future time disqualify them from acting while they remained such voters.

Appellant's contention that the notice of hearing on such petition was not published as required by section 133, Laws 1911, c. 266, held untenable. One publication of such notice in the nearest newspaper 14 days prior to the hearing, and posting the same in the manner prescribed in the above section, is all that was contemplated by the Legislature.

Additional Syllabus by Editorial Staff.

A person who had actual notice of a petition for annexing certain adjacent territory to a special school district under Laws 1911, c. 266, § 133, and of the hearing thereon, prior to the hearing, and filed a written protest with the district board against the proposed annexation, could not complain, in his subsequent action to enjoin the board from annexing such territory, that due notice of the hearing was not given.

Injunction will not lie to restrain the officers of a special school district from annexing adjacent territory under Laws 1911, c. 266, § 133, where the annexation has been fully completed prior to commencement of the action.

Appeal from District Court, Cass County; Chas. A. Pollock, Judge.

Action by the School District No. 94, a corporation, against C. M. Thompson and others. From a judgment for defendants, plaintiff appeals. Affirmed.

M. A. Hildreth, of Fargo, for appellant. A. A. Twitchell, of Tower City, and Pollock & Pollock, of Fargo, for respondents.

FISK, J.

[1] Plaintiff, school district, seeks to perpetually enjoin the defendants, as members of the board of education of the village of Tower City, and the defendant Addison Leach, as county auditor of Cass county, from doing any act looking to the transfer for school purposes of sections 6 and 7, the west half of section 5, and the west half of section 8, all in township 140 north, of range 55 west, lying and being in Cass county, from plaintiff, school district, to the special school district of the village of Tower City. Such transfer was sought to be effected pursuant to section 133 of chapter 266, Laws of 1911. The section reads as follows: “When any special school district has been organized and provided with a board of education under any general law, or a special act, or under the provisions of this article, territory outside the limits thereof but adjacent thereto may be attached to such special school district by the board of education thereof, upon application in writing signed by a majority of the voters of such adjacent territory; provided, that no territory shall be annexed which is at a greater distance than three miles from the central school in such special district, except upon petition signed by two-thirds of the school voters residing in the territory which is at a greater distance than three miles from the central school in such special district; and upon such application being made, if such board shall deem it proper and to the best interests of the school of such corporation and of the territory to be attached, an order shall be issued by such board attaching such adjacent territory to such corporation for school purposes, and the same shall be entered upon the records of the board. Such territory shall from the date of such order be and compose a part of such corporation for school purposes only. Such adjacent territory shall be attached for voting purposes to such corporation, or, if the election is held in wards, to the ward or wards or election precinct or precincts to which it lies adjacent; and the voters thereof shall vote only for school officers and upon such school questions; provided, that nothing in this act shall prevent any such adjacent territory from being annexed because of such adjacent territory being in an adjoining county, and provided, that the county commissioners may detach any part of such adjacent territory which is at a greater distance than three miles from the central school in such special district and attach it to any adjacent common or special school district or districts upon petition to do so, signed by three-fourths of the legal voters of such adjacent territory; provided, further, that in all cases fourteen days' notice of a hearing before the board shall be given, by publication in the nearest newspaper and posted notices in conspicuous places, three in the special district, three in the territory sought to be annexed, and three in the district remaining from which the territory shall be taken. And such territory shall not become a part of the special district until five days after such hearing, upon order of the board as hereinbefore provided; and all assets and liabilities shall be equalized according to section 217.”

The grounds alleged in the complaint as a basis for the relief prayed for are: First, that the school board of such special school district, some time prior to the attempted annexation of such territory, erected a large school building in Tower City, and, in doing so, greatly exceeded the debt limit in violation of the Constitution of the state, which limits the indebtedness of each school district to a sum not exceeding 5 per cent. of the taxable property of the district; and, second, that the petition asking for the annexation of such territory to such special school district is null and void, for the reason, as alleged, that the same was not signed by a majority of the voters of the territory sought to be annexed; nor was it signed by two-thirds of the school voters residing in that portion of the territory sought to be annexed, which is located at a greater distance than three miles from the center of such special school district. The petition which was...