School Tp. of Franklin v. Wiggins

• Decision Date: 05 February 1904
• Parties: THE SCHOOL TOWNSHIP OF FRANKLIN, ETC., Appellant, v. S. W. WIGGINS et al., Appellees
• Court: Iowa Supreme Court

98 N.W. 490

122 Iowa 602

THE SCHOOL TOWNSHIP OF FRANKLIN, ETC., Appellant, v. S. W. WIGGINS et al., Appellees

Supreme Court of Iowa, Des Moines

February 5, 1904

Appeal from Greene District Court.--HON. Z. A. CHURCH, Judge.

ACTION in equity for an injunction, for an accounting, and other equitable relief. On motion of defendants, the court struck out many of the allegations of plaintiff's petition. Thereafter the defendants answered, and to the answer plaintiff filed a demurrer, which was overruled. Plaintiff elected to stand upon its demurrer, and refused to plead further. Thereupon judgment was rendered in favor of defendants for costs, and the plaintiff appeals. The further facts necessary to an understanding of the case will be stated in the opinion.

Reversed.

J. A Henderson and Wilson & Albert for appellant.

Owen Lovejoy and G. S. Tolliver for appellees.

OPINION

BISHOP, J.

The petition as originally filed was in one count. The defendants moved the court that plaintiff be required to separate its petition into counts, and, this motion having been sustained, the plaintiff thereafter filed an amended and substituted petition in three counts. In the first count it is alleged, in substance, that plaintiff is the school township of Franklin, in Greene county, and known, prior to the adoption of the present Code, as the district township of Franklin; that as such it has all the powers incident to a school township. It is then said that the defendants, Wiggins and six others, naming them, under claim that a part of the territory of said township, viz., sections 9, 10, 15, and 16 therein, has been organized into an independent school district known as the "Rural Independent School District of Cooper," and of which said defendants claim to be the directors and officers, have been and still are wrongfully and unlawfully assuming to act as such directors and officers for such alleged independent district, and to perform the functions and use the powers conferred by law upon directors of independent districts; that they have wrongfully levied and collected taxes on the property in said territory, and expended the same, and will continue to do so unless restrained by an order of court. Plaintiff says that such independent district has no legal existence in fact; that in February, 1896, the defendants and a few others residing within the limits of the sections named, secretly corruptly, and unlawfully and without giving notice as required by law, and to defeat the will of a large majority of the voters residing within the limits of said sections, expressed at a lawful election theretofore held, met and pretended to elect officers for said pretended district of Cooper; that said pretended organization was fraudulently kept secret until defendants could secure the passage of an act of the General Assembly legalizing, if possible, the organization of said district, and that an act known as chapter 170, page 173, Acts 26th Gen. Assem., was procured by them to be passed without knowledge on the part of plaintiff and of the voters in said pretended district, and without knowledge on the part of the General Assembly of the fraud involved in said organization. It is then said that said act of the General Assembly is in violation of the constitution that it is class and special legislation; that it is an act creating an independent district, and not an act curative of some inadvertence, or failure of knowledge, or oversight in complying with the law; that upon its face the act purports to simply legalize an organization, of which the required notice had been given, but which notice for some reason was defective in that it did not contain a proper description of the territory to be embraced within said pretended district. That plaintiff has no speedy or adequate remedy under the laws of this state. Count 2 of the petition was withdrawn. In count 3 the allegations of count 1 are made a part by reference. It is then alleged that defendants, pretending to be officers of the alleged independent district, have wrongfully caused to be assessed and levied taxes upon the property in said sections, and have collected and wrongfully expended the same in an amount which plaintiff is unable to state. The prayer of the petition is that a decree be entered, adjudging that said alleged independent district has never been organized, and that it has no existence in law or fact; that the acts of defendants, as alleged, be decreed fraudulent and void and of no effect; that said act of the General Assembly be decreed illegal, unconstitutional, and void; that defendants be required to account for all moneys and property received by them, and that they be permanently enjoined from further acting in the premises.

The court, on motion of defendants, struck out of said petition all that portion of count 1 which we have italicized as above, and the whole of count 3. The grounds of the motion, as addressed to the first count, were that the portion thereof which relates to the levy and collection of taxes, etc., states a separate and distinct cause of action improperly joined herein, and that the same is pleaded in violation of the order to separate into counts. The other portions of said count so stricken out were assailed as being irrelevant, redundant, and immaterial, and statements of legal conclusions and not facts. Count 3 was assailed as a cause of action improperly joined, for that the cause of action set forth in the first count is in the nature of an action in quo warranto.

Following the ruling upon such motion to strike, the defendants moved the court to transfer the cause to the law docket, there to be tried by ordinary proceedings, and this for the reason that the petition stated a cause of action in quo warranto, and was therefore improperly brought in equity, and that "plaintiff is in error as to the kind of proceedings adopted, and said cause is erroneously brought." This motion was sustained. Thereupon the defendants answered, the pleading being in five divisions. In the second division the legal organization of the independent district of Cooper, in February, 1896, is alleged, and that it has ever since done and performed all the acts and things incident to the conduct and maintenance of an independent district according to law, including the levy and collection of taxes, building a schoolhouse, etc. In the third division it is said that there is a defect of parties plaintiff, in that plaintiff has no legal capacity to sue, for the reason that it is not a citizen of the state of Iowa. In the fourth division it is said that there is a defect of parties defendant, for that there are a large number of electors in said independent district who are not made parties defendant, although they are necessary to a determination of this action. In the fifth division it is said that this action cannot be maintained, for the reason that it was not commenced by the county attorney of Greene county, nor has he been directed to bring the same, and no demand has ever been made upon such county attorney to commence the same,...