Simmons v. Board of Education of City of Crosby
| Decision Date | 15 July 1931 |
| Docket Number | 5878 |
| Citation | 237 N.W. 700,61 N.D. 212 |
| Court | North Dakota Supreme Court |
From a judgment of the District Court of Divide County Lowe, J., defendants appeal.
Reversed and action dismissed.
George P. Homnes, for appellants.
Relief will not be granted in such a suit if not brought in fact for the protection of public rights but in aid of private enterprise. 32 C.J. 295.
An injunction will not be granted unless the complaint shows that a refusal to grant the writ will work irreparable injury. 32 C.J. 329.
An injunction will not be granted to restrain the doing of an unlawful and irregular act, unless substantial and positive injury will result from the refusal. Wood v. Bangs, 1 Dak. 179, 46 N.W. 586; State ex rel. Cranmer v Thorson, 9 S.D. 149, 33 L.R.A. 582, 68 N.W. 202; Strand v. Steppa, 45 S.D. 244, 186 N.W. 959.
If there is legislation on the subject the public policy of the state must be derived from such legislation. Moorshead v United R. Co. 119 Mo.App. 541, 96 S.W. 261.
The best indication of public policy is to be found in the enactments of the legislature. State v. Clarke, 54 Mo. 17, 14 Am. Rep. 471. See Disbrow v. Cass County, 119 Iowa 538, 93 N.W. 585.
"A taxpayer cannot invoke the restraining power of the court of equity unless it be shown that the municipal corporations and its officers are acting ultra vires." St. Mary's Industrial School v. Brown, 45 Md. 326; Davidson v. Baltimore, 96 Md. 513, 53 A. 1121; Rittenhouse v. Baltimore, 25 Md. 336.
E. J. McIlraith, for respondent.
The right of a taxpayer to institute an action to enjoin municipal officers from unlawfully dissipating public funds is a right common to all taxpayers. Engstad v. Dinnie, 8 N.D. 1, 76 N.W. 297; Storey v. Murphy, 9 N.D. 115, 81 N.W. 23; Weeks v. Hetland, 52 N.D. 351, 202 N.W. 810.
No laches on the part of taxpayers or others can operate to confer authority upon the officials of a corporation in a case where such officials are without power to act. Beach, Pub. Corp. 248; Northern Bank v. Porter Twp. 110 U.S. 608, 28 L. ed. 258, 4 S.Ct. 254; Trester v. Sheboygan, 87 Wis. 496, 58 N.W. 747; Cullen v. Carthage, 103 Ind. 196, 2 N.E. 571.
The school directors are trustees of the school property for that (instruction of pupils) use, and they may not, against objection, authorize or permit its use for other purposes. Bender v. Streabich, 37 A. 853; Pronovost v. Brunette, 36 N.D. 288, 162 N.W. 301.
A municipal corporation possesses such powers and such powers only as the state confers upon it, subject to addition or diminution at its supreme discretion. 28 Cyc. 258.
Municipal corporations are creatures of the law and can exercise only powers conferred by law and take none by implication. Leavenworth v. Ranking, 2 Kan. 357.
This action was brought by the plaintiff as an elector and taxpayer in the defendant school district to enjoin the defendants from renting the auditorium in the high school building for use for theatrical entertainments. The district court rendered judgment that the defendants be enjoined and restrained from renting said high school auditorium to any "traveling troupes, persons, corporations and others who make a business of putting on commercial entertainments for profit;" but that the decree so entered "shall apply only to professional entertainers and shall not be considered as restraining any one connected with the defendant school or its classes, Chautauquas, local entertainments, athletic contests, or those who are not professional entertainers." The defendants have appealed and demand a trial anew in this court.
In his brief on this appeal plaintiff says:
"The question presented to this court is -- Can the school board lawfully rent its school auditorium, built and maintained by tax money, for commercial purposes, viz., renting it to professional vaudeville troupes, at $ 40.00 per evening, and at which a charge is made?"
The material and undisputed facts are substantially as follows: The plaintiff is a freeholder, elector and taxpayer in the defendant school district. He is also a stockholder in, and the manager of, the Auditorium Theatre Company, a corporation engaged in the business of operating a theatre in the city of Crosby. In this theatre various forms of entertainment are put on, such as motion pictures and vaudeville acts. It is also rented to concert companies, road shows and traveling troupes for presentation of their performances.
The defendant school district is a special school district, including within its boundaries the city of Crosby and certain rural territory adjacent thereto. The school buildings in question are situated within the city of Crosby, where the defendant school district maintains and operates a high school. The building which is utilized for high school purposes contains a large room used both as an auditorium and a gymnasium. It has a large stage and stage equipment. The chairs are removable so as to enable it to be used as a gymnasium as well as an auditorium. When used as an auditorium it has a seating capacity of about nine hundred. The auditorium is in charge of the superintendent of the schools of the defendant district who is permitted, under certain rules and regulations adopted by the board of education, to allow the auditorium to be used for other than strictly school purposes. The rules adopted by the board of education for the guidance of the superintendent are as follows:
"The assembly halls of the schools are for school uses and may be rented for other purposes only when no interferences with school work or student activities arise therefrom. For the use of the auditorium or study hall per evening for educational purposes with admission free, there will be a charge of $ 10.00; for all other purposes where admission is not free, or which otherwise yield a revenue, not less than $ 40.00 will be charged.
The rate is based on the auditorium arrangements being undisturbed.
Application for use of school room must be presented to superintendent of city schools on printed form provided by the board of education and must in all cases be accompanied by the amount of rental fee fixed by the board, which amount will be returned in case the application is not granted. The application shall be deemed granted when signed by the superintendent or president of the board of education. The granting of application for the use of the auditorium confers no privileges with reference to any other part of the building unless under special agreement.
Smoking in any part of the school building is prohibited."
The superintendent testified, and it is not disputed, that the auditorium is not permitted to be used for dancing. The evidence shows that from time to time the superintendent has rented the auditorium, under the regulations provided by the board of education, for various entertainments at which an admission was charged as well as for entertainments at which no admission was charged; and that for such respective uses he received and paid into the treasury of the defendant school district the rental charges specified in the rules.
There is no showing that the auditorium has at any time been rented, or that there is any intention to rent it in the future, so as to interfere with its proper use for school purposes. On the contrary, the evidence in the case clearly indicates that it never has been so rented. Nor is there any claim that the entertainments which have been put on, or are likely to be put on, in the auditorium were or are in any sense improper or unfit to be shown there. In fact, the chief complaint of the plaintiff, both as gathered from the allegations of the complaint and from his testimony, is that the high school auditorium competes with the business of the theatre operated by him and that on one or more occasions certain parties putting on entertainments preferred to and did rent the high school auditorium instead of the building operated by him. There is not the slightest showing that any injury has been occasioned, or that any injury is likely to be occasioned, to the property of the school district; there is nothing to show that there has been any diversion or misuse of the school district funds. The inevitable conclusion to be drawn from all the evidence is that the school district and the taxpayers thereof as such have distinctly benefited by the renting of the auditorium, as the rent received and turned into the treasury considerably exceeded all the expenses incident to such use so far as the school district is concerned and left a substantial net profit in the school treasury.
Under the laws of this state there exist four different forms of school districts: (1) Common school districts (Comp. Laws 1913, §§ 1140 et seq.); (2) special school districts (Comp. Laws 1913, §§ 1229 et seq.); (3) independent school districts (Comp. Laws 1913, §§ 1286 et seq.); and (4) cities organized for school purposes under special laws enacted by the territorial legislature. Comp. Laws 1913, § 1286. See also Anderson v. Fargo, 48 N.D. 722, 725, 186 N.W. 378.
A city or an incorporated or platted town or village, may be constituted a special school district, alone or with contiguous territory. (Comp. Laws 1913, §§ 1229, 1230.) Such school district becomes a body corporate for school purposes and has a board of education as its governing body. Comp. Laws 1913, §§ 1241 et seq. The board of education is vested with custody of all school property of every kind. Comp. Laws...
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