School Dist. No. 115 v. School Dist. No. 54

• Decision Date: 05 December 1898
• Citation: 55 P. 98,34 Or. 97
• Parties: SCHOOL DIST. NO. 115 v. SCHOOL DIST. 54.
• Court: Oregon Supreme Court

55 P. 98

34 Or. 97

SCHOOL DIST. NO. 115 v. SCHOOL DIST. 54.

Supreme Court of Oregon

December 5, 1898

Appeal from circuit court, Linn county; H.H. Hewitt, Judge.

Mandamus by school district No. 115 against school district No. 54 to compel defendant, from which plaintiff was created by a division of district No. 54, to act with it and the superintendent of schools in dividing assets and liabilities. There was judgment for plaintiff, from which defendant appeals. Affirmed.

J.K Weatherford, for appellant.

Geo. W. Wright, for respondent.

BEAN J.

This is a proceeding by mandamus brought by the plaintiff, a school district created out of territory formerly embraced within the boundaries of the defendant district, to compel the defendant to appoint some disinterested person to act with the county superintendent and a like person chosen by the plaintiff, as a board of arbitrators, to make an equitable division between the plaintiff and defendant of the assets and liabilities of the defendant district at the time of the organization of plaintiff, as provided in subdivision 4, § 2590, Hill's Ann.Laws. The defense to the proceeding is that the plaintiff is not an existing corporation, because not legally created or organized, and is therefore not entitled to the relief sought. To prove its creation and organization, the plaintiff gave in evidence, over the defendant's objection, (1) an order of the superintendent of common schools, made and entered of record in his office on February 24, 1896, reciting that, by virtue of a petition signed by a majority of the legal voters of school district No. 54, filed in his office February 18, 1896, he had that day divided such territory into two districts, giving the boundaries of each, the new one to be known as "District No. 115," together with oral proof that the petition upon which the order of the superintendent purports to be based could not be found; (2) the minutes of a meeting of the voters of the new district held on March 9, 1896, at which a board of directors and clerk were elected; (3) the record of an ineffectual joint meeting of the directors of both districts held March 17, 1896, for the purpose of dividing the school property; (4) the record of a meeting of the board of directors of the plaintiff held on March 19 1896, at which an arbitrator was chosen to act with the superintendent and an arbitrator to be appointed by the defendant, in the matter of the division of such property. The defendant's objections to the admission of this evidence may be summarized thus: First, the petition upon which the county superintendent assumed to act in creating the plaintiff district was neither introduced in evidence nor its contents shown by parol, and there was no proof that it was signed by a majority of the legal voters of the district second, it was not affirmatively shown that the county superintendent, immediately after creating the new district notified the taxable inhabitants thereof, or the directors of the old district, of such order, as required by law; and third, there was no legal proof that notice to the citizens of the district to meet for the purpose of organization and for the election of directors and clerk was...