Schouweiler v. Allen
| Decision Date | 08 October 1908 |
| Court | North Dakota Supreme Court |
Original application for writ of certiorari by B. W Schouweiler and others to be directed to Frank P. Allen and others.
Writ denied.
Writ denied.
W. S Lauder, for plaintiff.
Persons not parties below, having an interest in the proceeding to be reviewed may apply for certiorari. Champion v Com'rs, 5 Dak. 416, 41 N.W. 739; State v. Rose, 4 N.D. 319, 58 N.W. 514; 6 Cyc. 767, 768, 769.
Intervention must be before entry of judgment. Revised Codes 1905, section 6825; Carey v. Brown, 58 Cal. 180; Hocker v. Kelley, 14 Cal. 165; Owens v. Colgan, 32 P. 519; Foerny v. Ball, 6 La.Ann. 685.
Courts will not dispose of a case at the will of the parties thereto, where the rights of others, or the public will be prejudiced. School Dist. v. Clifcorn, 112 N.W. 1099; State v. Ludvig, 82 N.W. 158; Van Gordon v. Goldamer, 16 N.D. 323, 113 N.W. 609; McDuffie v. Greenway, 24 Texas, 625; Penobscot R. Co. v. Mayo, 60 Maine, 306; Major v. Collins, 11 Ill.App. 658; McAdam v. Jenkins, 64 N.C. 795.
Purcell & Divet, Dan. R. Jones and Chas. E. Wolfe, for respondents.
Where intervention is denied the applicant can obtain full relief by an appeal from the order denying. Coburn v. Smart, 53 Cal. 742; Stich v. Dickinson, 38 Cal. 608; Amundson v. Wheelock, 8 Pickering, 470; Harman v. Barhydt, 31 N.W. 488; Henry v. Insurance Co., 26 P. 176; Trenton v. Highland, 10 So. 442; Hall v. Jack, 32 Md. 253; Keefe v. Branch, 84 N.C. 202; Rollins v. Rollins, 76 N.C. 264; Bass v. Fountelroy, 11 Texas, 698.
This is an application for a writ of certiorari or other proper writ to be directed to the judge of the district court of the Fourth judicial district, the clerk of that court for Richland county, the officers of the Fairmount school district, and T. P. Williams. All the records in the action sought to be reviewed are before us, and the application may be considered on its merits.
April 30, 1907, a special election was held in the Fairmount school district on the proposition of issuing the bonds of that district in the amount of $ 18,000, for the purpose of building a new schoolhouse with the proceeds. Neither the regularity nor validity of the preliminary steps leading up to the election or the conduct of the election is questioned. At such election 271 votes were cast, 140 of which were in favor of issuing bonds and 131 against it. The result was duly certified to the county auditor, and a tax spread on his records against the property of the district to create a sinking fund to pay the bonds as they might mature, in accordance with the statute. It is alleged that this tax became a valid charge against the property of the district for the year 1907. The board of directors of the district, when the election was held, consisted of three members, of whom two were in favor of the issuance of the bonds and one was opposed thereto. After the election the board proceeded to carry out the instructions of the voters, plans and specifications for the proposed building were procured, arrangements were perfected for the sale of the bonds to the state, and advertisements for bids for the construction of the schoolhouse were published. The board was about to sell the bonds and enter into contracts for the building of the schoolhouse when the annual school election occurred on the 4th of June, 1907. At that election a new director opposed to the issuance of bonds was elected in place of one who had favored them, making the new board stand one in favor of their issuance and two opposed thereto. Immediately after this election and such change in the complexion of the school board, an action was commenced by one T. P. Williams for himself and others similarly situated, for the purpose of enjoining the officers from issuing the bonds and from proceeding further to carry out the instructions of the voters given at the special election referred to. It is unnecessary to specify at length the allegations of the complaint. The material point is that it charged that at the special election referred to 15 of the persons who voted in favor of bonds "were not legal voters of the district, or within the county of Richland, and had no right or authority to vote at said election upon any question or subject whatever, and that the defendants and directors of such school district aforesaid, knowing that such persons were not legal voters and had no right or authority to vote at said election or meeting, and knowing that the ballots so cast by said voters were void (and the same were void), yet counted said votes as being legal votes in favor of the issuance of said bonds, when in truth and in fact the majority of the legal voters present and voting at said election or meeting cast written or printed ballots therein having thereon the words 'Against Bonds.'"
An order restraining the board from proceeding further in carrying out the instructions of the voters, together with an order to show cause why such injunction should not be continued during the pendency of such action, was obtained from the district court. Hearing of this order to show cause was had, at which affidavits were submitted on both sides and the restraining order was continued in force. The answer of the defendants, among other things, denied that any illegal ballots were cast in favor of bonds. Hon. W. S. Lauder was employed by the board to prepare and serve an answer and to conduct the defense, and the action was placed on the calendar. A few days before the opening of the term the two members of the school board opposed to the issuance of bonds called upon Lauder and informed him that unless he would, as attorney for such board, stipulate that judgment might be entered without trial adjudging and decreeing that the allegations of the complaint were true and that the temporary injunction should be made permanent and perpetual, said school board would discharge him as its attorney and employ some other attorney who would conduct such litigation in accordance with the wishes of said directors. Said Lauder refused to enter into such stipulation, and was later notified by the school board, by letter, that he was discharged, whereupon he informed the board that he had been employed to appear in the action and test the validity of the election, and that he declined to recognize the authority of the board to discharge him, and that he refused to turn over to the clerk the papers and documents pertaining to the case, and that he expected to try it on its merits. December 10, 1907, the board adopted a resolution instructing the attorney for the board to appear in court and consent on the part of defendants that the temporary injunction be made permanent and to take all legal steps to procure the same to be done. The resolution further authorized and directed him to represent and show to the court that in the opinion of the board the material allegations of the complaint referred to were true and that the district ought not to be put to the enormous expense of defending the action. A resolution was also adopted by the board, authorizing its president to employ an attorney to represent it in such action who would consent on the written direction of the board to the temporary injunction being made permanent. December 11th Lauder was written by the board that he was discharged. A motion was submitted to the district court, and an order entered substituting Dan R. Jones as attorney for the board in said action. The motion was supported by the verified petition of two of the directors, which recited the controversy with Lauder, and further stated that they had investigated the facts stated in the complaint and had come to the conclusion that it would be for the best interest of the district that judgment be entered in favor of the plaintiff, Williams and that they believed the material facts in the complaint to be true, and that a trial of the action would put the district to large and unnecessary expense. Lauder submitted his own affidavit in opposition to the applicant for substitution, wherein he set forth the proceedings relating to the election and the steps taken in regard to the action and what had been done by the board regarding the issuance of bonds and the letting of contracts, etc., and, further, that it was the purpose of the majority of the directors to prevent, if possible, all judicial investigation into the validity of such election, and to obtain from the court, without any trial or investigation whatever of the facts, an adjudication to the effect that such election was illegal and void, and that it was the deliberate purpose of the majority of such board by collusion and fraud to nullify and set at naught, without any trial or investigation of the facts, the result of the election, and thereby thwart the will of the people as expressed by such election, and that the majority of the board was attempting to accomplish this by indirection, collusion, and fraud, without regard to the merits of the controversy; that he had made a very thorough investigation of all the facts embraced within the pleadings, and that he believed that the allegations of the complaint relating to illegal votes being cast were not true, and that a trial of the issue raised by the pleadings would convince...
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