Splonskofsky v. Minto

• Citation: 126 P. 15,62 Or. 560
• Parties: SPLONSKOFSKY et al. v. MINTO, Sheriff.
• Decision Date: 13 August 1912
• Court: Supreme Court of Oregon

126 P. 15

62 Or. 560

SPLONSKOFSKY et al. v. MINTO, Sheriff.

Supreme Court of Oregon

August 13, 1912

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Action by Paul Splonskofsky and others against Harry P. Minto Sheriff of Marion County. Judgment for plaintiffs, and defendant appeals. Reversed and rendered.

This is a suit to enjoin the defendant, as sheriff and tax collector of Marion county, from collecting taxes said to have been levied by high school district No. 1 of said county. It is alleged and admitted: That the defendant is such officer. That school district No. 97 was a regularly organized school district, and hence, under the laws of Oregon, a public corporation; and that about May 17, 1910, petitions were filed with W.M. Smith, superintendent of schools for the county, in form as follows: "To the District Boundary Board, Marion County, Oregon--Gentlemen: We, the undersigned legal voters of school district No. 73, Marion county Oregon, do hereby petition you to direct the school board of school district No. 73 to state in the notice of the next annual school meeting that the question of uniting Dist. No 73 and Dist. 116 and Dist. 97 for high school purposes only thus forming a union high school district, will be submitted to the legal voters. The site for the union high school shall be at Scott's Mills." Besides the petition from No 73, a petition in identical terms, except the proper number designating each district, purporting to come one from the legal voters of school district No. 97, and one from those of school district No. 116, were presented at the same time. There were 34 names appended to the petition from district No. 73, 7 from district No. 97, and 5 from district No. 116. This much of the complaint having been admitted, the remainder of that pleading is, in substance, as follows: Plaintiffs aver that at all the dates and times stated, and for a long time prior thereto and ever since, they have been and now are residents, inhabitants, and legal voters of and within public school district No. 97, and that each of them was and now is the owner of real and personal property situated within said school district.

After setting out in full in the complaint the three petitions already mentioned, the complaint contains these allegations: "That the said district boundary board never directed in writing or otherwise that the school boards of the said respective school districts, or any of them, give the notices as requested in said alleged petition as required by section 3 of said chapter 101 of the Session Laws of the state of Oregon for the year 1907. That the district boundary board of Marion county, Oregon, never notified the respective school boards of districts No. 73, No. 97, and No. 116 of its determination in favor of uniting such districts for high school purposes, as required by section 3 of an act to provide for the establishment of union high school districts, and for the maintenance and government of the same, and to define the powers thereof, being chapter 101 of the Session Laws of Oregon for the year 1907." Plaintiffs state that the district boundary board never made any appointment of directors for the alleged high school district; that on August 28, 1910, one J.E. Coulson and one Paul Splonskofsky, at the farm of Wm. McKillop, attempted to organize the pretended union high school district No. 1, and attempted and pretended to elect one J.E. Coulson as chairman and W.F. Drager as clerk, and made a pretended order that notices calling a special meeting of the voters be posted up for the purpose of voting a special tax for conducting the high school during the ensuing year, and on December 27, 1910, at Scott's Mills, said J.E. Coulson, pretending to be chairman of the alleged union high school district No. 1, in accordance with a pretended notice posted, attempted to call an alleged special meeting to order at the schoolhouse at Scott's Mills, in Marion county, Or., at 3 o'clock p.m. The pretended chairman read the pretended notices, stating the object of the meeting. The said pretended union high school board pretended to estimate a levy of four mills on all the taxable property embraced in the alleged union high school district to be necessary to carry on the school for the ensuing year. By an attempted and pretended ballot, it was decided that an alleged and pretended tax of four mills be levied on the property of the said pretended union high school district; there being 22 alleged votes favoring the pretended tax, and 2 alleged votes against said pretended tax.

With a liberal admixture of the terms "pretended" and "alleged," the complaint further states, in substance, that the union high school board of district No. 1 ordered a levy of four mills special tax of the taxable property of each regular school district included in the district that should fail to make such a levy by December 10, 1910. Premising that it does not appear that the districts in question were districts of the third class, or that one-third of the legal voters of each of them signed the petitions, the complaint specifies sundry objections to the petitioners who signed the petitions from district No. 97, alleging that they were not legal voters or qualified to sign the petition, contending that there were only four qualified school voters who signed that petition, and that they constituted less than one-third of the electors of the district. The plaintiffs aver that district No. 97 never made any assessment or levy for the union high school district taxes, and that the board never gave that district any notice of such an estimate, but, on the contrary, made the estimate and levy of four mills on the assessable property in the union high school district itself, reported the same to the county clerk, who in turn extended it on the tax roll and placed the same in the hands of the sheriff, who is now in process of collecting all the taxes assessed against property in Marion county. Contending that the levy of four mills on the dollar mentioned is a cloud upon the titles of their respective lands, and that it is illegal and void, they pray for a decree perpetually enjoining the defendant from attempting to collect the same, or any part thereof.

Aside from the admitted matter already mentioned, the answer denies the whole complaint. It further alleges that the districts in question were districts of the third class; that petitions containing not less than one-third of the legal voters thereof were presented from each of the districts to the district boundary board, which directed the school boards of the several districts to give the notices requested in said petition; that said notices were so given by posting them in three public places in each of said districts 10 days before the day appointed for the school meeting at which a vote was to be taken; that at those meetings the election was regularly held, resulting in a majority in each of said districts in favor of a union high school; that within 10 days after the returns were received from the districts in question the district boundary board canvassed the vote and declared the territory comprising said districts to be a union high school district. Pleading the provision of the statute that after a union high school is formed by uniting three or more districts of the third class the member of each of the boards of directors of the districts who has served longest since his last election shall be ex officio a member of the union high school board, the defendant alleges that the board met and organized by electing one of their number chairman, and appointed a clerk from among the other voters of the high school district; that after its organization the union high school board made an estimate of the amount of funds necessary to support a school, reported its determination to the county clerk, and notified the boards of each of the school districts of its portion of the expense; that, owing to an inadvertence, district No. 97 failed to make an assessment or levy for the taxes in question, whereupon the high school board itself made a levy of a tax of four mills on each dollar of the taxable property of said school district; and that districts No. 73 and 116 accordingly made the levy of four mills on the taxable property in their several districts.

The reply denied all the allegations of the answer, except as stated in the complaint. After a hearing in the circuit court, a decree of permanent injunction was rendered by that court according to the prayer of the complaint. From this decree, the appellant has appealed.

W.C. Winslow, of Salem (John H. McNary and C.L. McNary, both of Salem, on the brief), for appellant.

M.E. Pogue and W.T. Slater, both of Salem, for respondents.

BURNETT, J. (after stating the facts as above).

The statute relating to union high schools is found in sections 4192 to 4210, inclusive, L.O.L. It was stipulated at the hearing that the three districts mentioned are all districts of the third class; each having less than 200 children of school age within its boundaries. To initiate a scheme for a union high school composed of districts of the third class it is required that a petition, signed by no less than one-third of the legal voters of each district, shall be addressed to the district boundary board, requesting that board to require the school boards of each of the districts to state in the notice for the next annual school meeting or election that the question of uniting the districts for high school purposes only will be submitted. The district boundary board is required to direct the school board to give the notices as requested in the petition, and the form of ballot is prescribed: "For Union High School--Yes and No." ...