Smith v. Canyon County

• Decision Date: 29 May 1924
• Citation: 39 Idaho 222,226 P. 1070
• Parties: GEORGE S. SMITH, Appellant, v. CANYON COUNTY, CONSOLIDATED SCHOOL DISTRICT, NUMBER 34, CANYON COUNTY, and FERN R. HART, as Treasurer and Ex-officio Tax Collector of Canyon County, Respondents
• Court: Idaho Supreme Court

226 P. 1070

39 Idaho 222

GEORGE S. SMITH, Appellant, v. CANYON COUNTY, CONSOLIDATED SCHOOL DISTRICT, NUMBER 34, CANYON COUNTY, and FERN R. HART, as Treasurer and Ex-officio Tax Collector of Canyon County, Respondents

Supreme Court of Idaho

May 29, 1924

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action to set aside a school tax and recover the amount paid under protest. Judgment for defendants. Reversed.

Reversed and remanded, with directions. Costs awarded to appellant.

Scatterday & Stone, J. A. Elston and S. Ben Dunlap, for Appellant.

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 action whatsoever. (Spelling on Injunctions and Other Extraordinary Remedies sec. 712; Dunbar v. Board of County Commrs., 5 Idaho 407, 49 P. 409.)

The board of county commissioners is required, by law, to keep a record of its proceedings, and no presumption arises as to the regularity of any of its proceedings not appearing of record. (Gorman v. Board of Commrs., 1 Idaho 533; People v. Bercham, 12 Cal. 50.)

"The jurisdiction of a board must appear from its records." (Finch v. Tehama County, 29 Cal. 454; Swift v Ormsby County, 6 Nev. 95; State v. Washoe County, 5 Nev 317.)

"The board of county commissioners is a tribunal created by statute with limited jurisdiction and only quasi-judicial powers and cannot act except in strict accordance with the mode provided by statute." (Gorman v. Board, supra; Prothero v. Board, 22 Idaho 598, 127 P. 175.)

"The power to establish new school districts, or to alter existing ones, may be designated by the legislature to subordinate agencies or officers. When the power to exercise the authority is made to depend upon the performance of certain conditions, such as the signing of a petition by a certain number of voters or the like, the agent or officer cannot act until such conditions have been complied with." (35 Cyc. 834, 838.)

"To give to the superintendent of schools jurisdiction to detach a part of the territory of a school district and attach the same to an adjoining district, a petition in writing, duly signed, must be presented to him for the purpose." (State ex rel. McLane v. Compton, 28 Neb. 485, 44 N.W. 660)

Where the statute provides for the levying of a special tax by a school district, and prescribes the manner in which such levy shall be made, a literal compliance with requirements of the statute is necessary to the validity of the tax. (Bramwell v. Guheen, 3 Idaho 347, 29 P. 110; Shoup v. Willis, 2 Ida 120, 6 P. 124; Maxwell v. Stanislaus Co., 53 Cal. 389.)

Taxes for the support and maintenance of common school district must be levied by the annual meeting of electors in the first instance, and if they fail and refuse to do so at said meeting the trustees may levy said tax. (C. S., secs. 875, 878 and 880; State v. Lakeside Land Co., 71 Minn. 283, 73 N.W. 970; Northern P. R. Co. v. Chapman, 29 Idaho 294, 158 P. 560.)

Stone & Jackson and L. D. Hyslop, for Respondent.

"The remedy to correct errors and irregularities in the action of a board of commissioners acting in a matter over which such board has jurisdiction is solely by appeal." (Canyon County v. Toole, 9 Idaho 561, 75 P. 609; Clay v. Board of Commrs., 30 Idaho 794, 168 P. 667; Bobbitt v. Blake, 25 Idaho 53, 136 P. 211; School District No. 25 v. Rice, 11 Idaho 99, 81 P. 155; Picotte v. Watt, 3 Idaho 447, 31 P. 805.)

MCCARTHY, C. J. William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

MCCARTHY, C. J.

--Appellant, whose lands are embraced within the boundaries of Consolidated School District No. 34, Canyon county, seeks by this action to have the special tax levied against his property by this district for the school year 1920 declared invalid, and to recover, with interest, the sum of $ 67.57, the amount paid by him under protest as the first installment. He bases his attack on the legality of the tax on four propositions. He first attacks the legality of the organization of the consolidated district, alleging that the board of county commissioners acted without first acquiring jurisdiction. In support of this contention he alleges: That it does not appear from the records of the board of county commissioners (1) that petitions for the creation of the consolidated district had been filed, signed by a majority of the heads of families residing in each of the then existing common school districts affected; (2) that petitions setting forth in general terms the proposed changes in the boundaries of the districts affected had been filed; (3) that petitions for consolidation and creation of said district had been filed, accompanied by and referring to a map or maps, showing the old and new boundaries; (4) that the school superintendent had given notice as required by law of the filing of petitions for the creation of the respondent school district.

Appellant's second contention is that the tax is illegal because, at the time of the creation of the consolidated district, the school year for the season 1920 and 1921 had started, and the commissioners by the terms of their resolution made it effective immediately upon its passage, instead of at the opening of the next school year. Appellant's third contention is that the tax is illegal because not levied and assessed by an annual meeting of the voters of the district, nor by the board of trustees of the district. Appellant's fourth contention is that the tax is illegal because it was not certified to the county commissioners by the trustees of said district for levy and assessment against his property.

The case was tried to the court, oral testimony and documentary evidence being submitted. The court found as matters of fact, among other things:

"3. That it appeared from the records of the Board of County Commissioners of said Canyon County, at the time said resolution was passed, that the Superintendent of Schools of said Canyon County, had given notice of the filing of said petitions for the consolidation of said Common School Districts Nos. 33, 34, and 73 into Consolidated School District No. 34, Canyon County, and stating the changes to be made in them, by sending notices by registered mail to each of the trustees of the School districts affected by the proposed consolidation; that the said County Superintendent of Schools caused printed notices stating the changes to be made in the boundaries of said Common School Districts Nos 33, 34, and 73, and of the proposed consolidation of said Common School Districts into consolidated School District 34, to be posted for the period required by law in three public places in the Common School Districts so affected, before the passage of the said resolution by the board of commissioners of Canyon County, which created and established Consolidated School District No. 34.

"4. That all of the things which are by law required to be done in creating a Consolidated School District were duly and regularly done and performed by the Board of County Commissioners of Canyon County, Idaho, in creating and establishing Consolidated School District No. 34, and the said Board of County Commissioners of Canyon County, Idaho, had jurisdiction of the subject matter on September 10th, 1920, at which time said Board of Commissioners passed a resolution establishing and creating said Consolidated School District No. 34, Canyon County, Idaho.

"5. That at the time the said Board of County Commissioners passed the said resolution creating and establishing said Consolidated School District No. 34, the school for the year of 1920-1921 had not commenced.

"6. That the said special school tax of $ 1.25 on each one hundred dollars of the assessed value of the property within Consolidated School District 34, Canyon County, was levied by the Board of Trustees of said Consolidated School District 34, after the passage of the resolution by the Board of Commissioners of Canyon County, establishing and creating said School District; that said levy was not certified by the said Trustees until after the third Monday in September, 1921; that the said special school tax of $ 1.25 per one hundred, was levied against all the taxable property in said Consolidated School District 34. . . .

"8. That plaintiff is the owner of the personal and real property described in the amended complaint herein, and that the said property is within the boundaries of Consolidated School District 34, Canyon County, Idaho; that the assessed valuation of said property for the year 1920 was $ 10,810; that the special school tax of $ 1.25 per one hundred dollars of the assessed valuation was levied and assessed against the said property of plaintiff by the Board of Commissioners of Canyon County, Idaho, for the year of 1920; that plaintiff paid the first installment of said tax in the sum of $ 67.57, and that the second installment is a lien on the real property described in the complaint.

"9. That at the time said Special school tax was levied and assessed against the property described in the complaint, Thomas Tarr, E. E. Heston and John Beal were duly appointed qualified and acting trustees of Consolidated School District No. 34, Canyon County, Idaho.

"10. That petitions signed by a majority of the heads of families residing in Common School Districts Nos. 33, 34, and 73 Canyon County, Idaho, were filed in the office of the County Superintendent of Schools of said County, praying for the establishment and organization of Consolidated School District No. 34, Canyon County, Idaho, and said petitions were affirmed by the County Superintendent...