Sch. Dist. No. 94 v. King

• Decision Date: 29 June 1910
• Citation: 127 N.W. 515,20 N.D. 614
• Parties: SCHOOL DIST. NO. 94 v. KING et al.
• Court: North Dakota Supreme Court

20 N.D. 614

127 N.W. 515

SCHOOL DIST. NO. 94

v.KING et al.

Supreme Court of North Dakota.

June 29, 1910.

Syllabus by the Court.

An amendatory act is not contrary to section 61 of the state Constitution, requiring the subject of the act to be expressed in the title, when it does not relate directly to the provisions of the section amended. It is sufficient if the amendment is germane to the subject of the act of which the amended section is a part, and the same is within the title of the original act.

Laws enacted for the consolidation or division of school districts are valid as resting solely on legislative discretion or policy, unless they are contrary to some constitutional provision.

Chapter 106, Laws 1907, relating to division of school districts and attaching parts thereof to a city, town, or village for school purposes, is not unconstitutional as taking property without an opportunity for a hearing, or as depriving school districts of their property without due process of law.

A division or partial consolidation of school districts under chapter 106, Laws 1907, is not in violation of the Constitution forbidding the taking of property without due process of law. The ownership of the property in such cases is not of private property. It is property devoted to state purposes, and subject to legislative control, unless the Legislature violates some constitutional provision in reference to the same.

Whether a preliminary injunction shall be continued in force pending the trial on the meritsof the action, or dissolved on motion, rests in the sound judicial discretion of the trial judge, and his action thereon will be upheld unless such discretion has been manifestly abused.

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

Action by School District No. 94 against W. W. King and others, constituting the Board of Education of the Village of Tower City, and another. Judgment for defendants, and plaintiff appeals. Affirmed.

M. A. Hildreth, for appellant. Stambaugh & Fowler, for respondents.

MORGAN, C. J.

The complaint alleges the following facts: That plaintiff is a duly organized school district of the county of Cass, and as such owns a schoolhouse in which is conducted school for at least nine months each year; that the territory comprising said district consists of sections 1 to 12, inclusive, of township 140, range 55; that the schoolhouse owned by said district is situate on section 9; that the defendants compose the board of education of the village of Tower City, in said county; that said board of education is duly organized for the purpose of carrying on a public school in said village; that the defendants as such board of education did on the 3d day of June, A. D. 1909, make an order attaching to the village of Tower City for school purposes all of sections 4, 5, 6, 7, 8, and 9 in said township and range; that said order was based upon a petition which was fraudulently presented to said board, and said order was void for the reason that the petition was not signed by a majority of the voters of the territory to be attached to the village of Tower City for school purposes; that said territory to be annexed to the village of Tower City for school purposes is more than three miles from the central school, in said village, and the petition was not signed by two-thirds of the school voters residing in the territory that is more than three miles from the central school; that the board in making said order acted illegally and in violation of section 949, Rev. Codes 1905, as amended by chapter 106 of the Laws of 1907, and said chapter 106 is unconstitutional and void; that said defendants are threatening to carry out such illegal and void proceedings, and, if not restrained from so doing, their action will greatly injure the plaintiff and the inhabitants thereof, and that they have no adequate remedy at law.

The relief demanded is that the defendants be restrained from proceeding with the carrying out of the order. An order to show cause was issued by the trial court why the defendants should not be restrained as prayed for in the complaint, and a temporary restraining order was issued. Upon the return day of the order to show cause, on the 21st day of June, 1909, the district court denied the application to make the order permanent, and denied the application to continue the same in force pending the trial of the action. A stay of proceedings for 10 days was granted to the plaintiff, to perfect an appeal to the Supreme Court, and a supersedeas bond was ordered to be given in the sum of $1,500. The plaintiff has appealed from the order denying the application to make the injunction permanent, or to continue the same in force pending the trial of the action.

In this court the appellant relies upon the following grounds for a reversal of the order: (1) That the statute under which defendants seek to proceed is unconstitutional, for the reason that it does not provide for any fair and legitimate mode of hearing on the part of the parties concerned. (2) By annexing section 9 of said territory the defendants confiscated and destroyed the schoolhouse property belonging to school district No. 94. (3) That the defendants, in making the order in question, perpetrated a fraud upon the inhabitants of school district No. 94. (4) That said chapter 106 of the Laws of 1907 is void, as contravening the provisions of section 61 of the Constitution. (5) “Conceding that said act is constitutional, it was error to deny an injunction, pendente lite, where great public interests were involved, as in this case.”

Section 949, Rev. Codes 1905, pursuant to which the defendants are proceeding, is as follows, to wit: “When any city, town or village has been organized for school purposes, 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 said city, town or village for school purposes, upon application in writing signed by a majority of the voters of said 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 the 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 the county commissioners shall attach 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 to any adjacent school or special district or districts, upon petition to do so, signed by three-fourths of the legal voters of such adjacent territory, and all assets and liabilities shall be equalized according to section 864.”

So far as the unconstitutionality of chapter 106, Laws 1907, on the alleged ground that it infringes on section 61 of the state Constitution relating to titles, is concerned, it appears that said act is an amendment of section 949, Rev. Codes 1905. The amendment in the 1907 law in no way changes the original act as to any question affecting this case. It confers upon the county commissioners, under certain conditions, authority to attach certain portions of a school district after division thereof to a school district of another county. The fact that this amendment confers the authority upon county commissioners to attach certain portions of a school district to a school district of another county is immaterial so far as the rights of this plaintiff or any inhabitant of the plaintiff district are concerned. Whether the conferring of such authority upon the county commissioners is or is not a constitutional enactment we need not, therefore, determine, as no such authority was exercised or attempted to be exercised in the case at bar. The plaintiff, therefore, cannot urge the invalidity of the 1907 act under the facts of this case.

The title of the act of 1907 is as follows: “An act to amend section 949 of the Revised Codes of 1905, relating to education.” Section 949 was originally enacted as a state law in 1890, but the same was in force before 1890 as a part of the territorial statutes. The section has been continued in force in the revision as originally enacted, so far as any question here involved is concerned. The title of the act of 1890 (Laws 1890, c. 62) of which section 949 was a part, was “An act to provide for a uniform system of free...