School District No. 25 v. Rice

• Decision Date: 22 May 1905
• Parties: SCHOOL DISTRICT No. 25 v. RICE, TREASURER
• Court: Idaho Supreme Court

81 P. 155

11 Idaho 99

SCHOOL DISTRICT No. 25 v. RICE, TREASURER

Supreme Court of Idaho

May 22, 1905

APPEAL-EQUITABLE RELIEF NOT GRANTED WHEN.

1. The remedy for review of the action of a board of county commissioners in this state is by appeal from the order or act complained of under the provisions of section 1776 Revised Statutes. (Amended Sess. Laws 1899, p. 248.)

2. Equitable relief will not be granted where there is a plain speedy and adequate remedy by appeal provided.

(Syllabus by the court.)

APPEAL from the District Court of Shoshone County. Honorable Ralph T. Morgan, Judge.

Action to restrain defendants from doing certain acts. Reversed.

Reversed and remanded.

Henry P. Knight, for Appellant.

The court erred in overruling defendant's demurrer. "It is an elementary principle that the existence of a municipal corporation cannot be collaterally attacked." (1 Smith on Municipal Corporations, arts. 57-59; People v Maynard, 15 Mich. 463: Mendenhall v. Burton, 42 Kan. 570, 22 P. 558; State v. Town of Tipton, 109 Ind. 73, 9 N.E. 704; People v. Larue, 67 Cal. 526, 8 P. 84; Kuhn v. Port Townsend, 12 Wash. 605, 50 Am. St. Rep. 911, 29 L. R. A. 445, 41 P. 923; First Baptist Church v. Branhom, 90 Cal. 22, 27 P. 60; Osborne v. Village of Oakland, 49 Neb. 340, 68 N.W. 506; Speer v. Board of County Commrs., 88 F. 749, 766, 32 C. C. A. 101; School Dist. v. State, 29 Kan. 57; Clement v. Everest, 29 Mich. 19; Donough v. Dewey, 82 Mich. 309, 46 N.W. 782; White v. Berry, 171 U.S. 366, 18 S.Ct. 917, 43 L.Ed. 199; Shapleigh v. City of San Angelo, 167 U.S. 646, 17 S.Ct. 957, 42 L.Ed. 310; Bateman v. Florida Commercial Co., 26 Fla. 423, 8 So. 51; Bodman v. Drainage Commrs. , 132 Ill. 439, 24 N.E. 630: Atchinson etc. R. R. Co. v. Wilson, 33 Kan. 223, 6 P. 281.) Quo warranto is the proper remedy for testing the validity of the incorporation of either private or municipal corporations. (People v. Montecito Water Co., 97 Cal. 276, 33 Am. St. Rep. 172, 32 P. 236.) In the state of Idaho a plain, speedy and adequate remedy is provided for respondents by statute. (Rev. Stats. 1887, sec. 1776.) When such a remedy is provided by law, plaintiff has no standing in a court of equity. The court has no jurisdiction of the case. (Picotte v. Watt, 3 Idaho 447, 31 P. 805; Morgan v. County Commrs., 4 Idaho 418, 39 P. 1118; Rogers v. Hays, 3 Idaho 597, 32 P. 259; County of Ada v. Bullen Bridge Co., 5 Idaho 188, 95 Am. St. Rep. 180, 47 P. 818, 36 L. R. A. 367.)

John P. Gray, for Respondent.

When the board of county commissioners or any other tribunal makes an order which it has no jurisdiction to make, that order or act may be attacked directly or indirectly, collaterally or otherwise, at any time, in any kind of an action whatsoever. The only act which cannot be attacked collaterally is an act which, though it may be irregular, is made by a tribunal which has acquired jurisdiction to make the order. This court in the case of Dunbar v. Board of Commrs. of Canyon County, 5 Idaho 407, 49 P. 409, has furnished the authority upon this question when it holds, "Where the action of the board in making an order is void, it may be attacked directly, indirectly or collaterally at any time or place." (Spelling on Injunction and Other Extraordinary Remedies, sec. 712.)

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

The facts are stated in the opinion.

STOCKSLAGER, C. J.--

The plaintiff commenced its action in the district court of Shoshone county, alleging: 1. That it is, and has been since the eleventh day of October, 1898, a regularly organized school district in Shoshone county, Idaho. 2. That defendant Rice is a citizen and resident of Shoshone county and county treasurer of Shoshone county, state of Idaho. 3. That William T. Hooper is a citizen and resident of Shoshone county and assessor and ex-officio tax collector of said county. 4. That the defendants, W. H. Shaw, J. W. Rogers and P. H. Blake, are citizens of the county of Shoshone, state of Idaho residing near Greer, in said county, and pretending to act as trustees of a school district known as and called School District No. 38. 5. That on the eleventh day of October, 1898, the plaintiff was regularly and duly created by the board of county commissioners of the county of Shoshone. state of Idaho as a school district to be known as and called School District No 25, in the county of Shoshone, state of Idaho and ever since said date has continued, and now continues, to exercise the functions of a school district according to the laws of the state of Idaho. (Then follows the boundaries, which it is alleged contain about twelve square miles.) 6. That heretofore, to wit, during the month of March, 1902, and prior to the 15th of March, 1902, George W. Casteel, Washington Bonner, and others, filed a petition with the county superintendent of public instruction for the creation and establishment of a new school district to be formed from territory within the boundaries of School District No. 25, in Shoshone county, state of Idaho as aforesaid, which petition is in words and figures as follows, etc. (Here follows petition in usual form.) 7. That no notice of the filing of said petition was given by the county superintendent as required by the act of the legislature of the state of Idaho approved February 6. 1899, entitled "An act to establish and maintain a system of free schools," by sending notice. Plaintiff further alleged that no notice by registered mail or otherwise was sent by the county superintendent to the trustees of School District No. 25 in Shoshone county, state of Idaho or to any member thereof. That no printed notice was posted in at least three public places in the district so affected. That no notice, printed or otherwise, was posted on the door of the schoolhouse in said district for at least one week or for any length of time, or all. 8. That Reuben Dennis and other citizens and residents within the boundaries of School District No. 25, in Shoshone county, state of Idaho having been advised that the petition for the division of said district had been filed on or before the fourteenth day of April, 1902, filed a remonstrance protesting and remonstrating against the creation of the proposed new district, which remonstrance is in words and figures as follows: (Here follows a petition to the board of county commissioners praying that District No. 25 be divided no more at present, signed by Rueben Dennis and twenty others.) And thereafter the county superintendent of public instruction transmitted the said petition for the establishment of the proposed new district to the board of county commissioners with her disapproval. And thereafter at the regular quarterly meeting of the board at the regular April, 1902, term thereof and on the third day of said term, to wit, the sixteenth day of April, 1902, the board of county commissioners at Shoshone county took up the said petition for final action, and after considering the said petition and the said remonstrance, made an order in words and figures as follows, to wit: (The petition and remonstrance in the matter of new school district in the south end of the county were examined and tabled.) 9. That at the regular April, 1902, meeting the boundaries of the said School District No. 25 were altered and a portion of the territory within said School District No. 25, in Shoshone county, was attached to School District No. 24 in said county and state, leaving the boundaries of School District No. 25 as follows: (Then follows description of the district.) 10. That thereafter at the regular July meeting of the board of county commissioners, on the twenty-fifth day of July, 1902, the board of county commissioners of Shoshone county, again took up for reconsideration the petition aforesaid and granted the same, the order of the board being in words and figures as follows, to wit: The petition of Washington Bonner and others for the establishment of a new School District No. 38 was examined and granted and it was ordered that School District No. 38 be and the same hereby is established with boundaries as follows: (Here follows a description of District No. 38.) 11. That no other petition was filed on or before the fifteenth day of the month preceding the regular July meeting of the board, and no petition was filed at any time asking for the creation of said pretended School District No. 38, except the petition hereinbefore set forth and referred to. Plaintiff further alleges that no notice was given by the county superintendent of the receipt of any petition, and no notice by registered mail was sent to each and all or any of the trustees of School District No. 25 in Shoshone county, state of Idaho which was the district to be affected by the proposed change, and no printed notices were posted in at least three public places or in any public place, or at all, in the said District No. 25, so affected, nor was any printed or other notice posted on the door of the schoolhouse in said district for at least one week, or for any length of time prior to the July meeting of the board of county commissioners, or at any other time or at all. Plaintiff further alleges that the only petition acted upon by the board of county commissioners in creating the said pretended District No. 38 was the petition filed prior to the regular April, 1902, quarterly meeting of the board and finally acted upon at the said April, 1902, meeting of the board of county commissioners of Shoshone county. 12. Plaintiff further alleges that it received no notice of the act of the board of county commissioners of July 25, 1902, until the fourth day of February, 1904, when notice was received from the county superintendent of public instruction had directed the county...