State ex rel. Agneberg v. Peterson

• Decision Date: 06 December 1924
• Docket Number: 22635
• Citation: 201 N.W. 856,52 N.D. 120
• Court: North Dakota Supreme Court

201 N.W. 856

52 N.D. 120

THE STATE OF NORTH DAKOTA EX REL. L. N. AGNEBERG, Appellant, v. R. A. PETERSON, as Clerk of Perth Special School District No. 27, in Towner County, North Dakota, Respondent

No. 22635

Supreme Court of North Dakota

December 6, 1924

Rehearing denied December 31, 1924.

Appeal from the District Court of Towner County, Buttz, J.

Plaintiff appeals from a judgment dismissing his application for a writ of mandamus.

Affirmed.

Cuthbert & Adamson, for appellant.

Chas H. Houska (Newton, Dullam & Young, of counsel), for respondents.

CHRISTIANSON J. BRONSON, Ch. J., and BIRDZELL, NUESSLE, and JOHNSON, JJ concur.

OPINION

CHRISTIANSON, J.

The sole question presented on this appeal is whether the office of school treasurer in a special school district, lying partly without an incorporated village, is elective or appointive. The relator contends that such office is elective and asserts that he has been duly elected to such office. The respondent, on the other hand, contends that the office is appointive, and asserts that the alleged election of the relator was void and of no effect. It is conceded that the answer to the question in dispute must be found in the statutes of this state.

In 1911 the school laws of this state were codified. Laws 1911, chap. 266. In such enactment it was provided:

"At the annual meeting on the second Tuesday in July of each year such board of education shall organize by electing a president from among its members who shall serve for one year; and they shall also elect a clerk, not one of their own number, who shall hold his office during the pleasure of the board and receive such compensation for his services as shall be fixed by the board. In the absence of the president at any meeting, a president pro tempore may be elected by the board." Laws 1911, § 141, chap. 266.

"The treasurer of any city, town or village comprising a special district, shall be treasurer of the board of education thereof; provided, however, should the said special school district have within its boundaries and be comprised partly of territory without the limits of said city, town or village, then the said special school district shall elect at its regular elections a treasurer in the manner provided by law for the election of school district treasurer." Laws 1911, § 147, chap. 266.

In 1913 the legislative assembly enacted the following law (Laws 1913, chap. 256):

"An act to amend § 141 of article 9 of chapter 266 of the Session Laws of 1911, relating to public schools.

"Be it enacted by the legislative assembly of the State of North Dakota:

"Amendment. That § 141 of article 9 of chapter 266 of the Session Laws of 1911, of the State of North Dakota, be amended to read as follows:

"Sec. 141. Organization of Board. At the annual meeting on the second Tuesday in July of each year such board of education shall organize by electing a president from among its members who shall serve for one year; and they shall appoint a clerk and a treasurer, not of their own number, who shall hold their offices during the pleasure of the board and receive such compensation for their services as shall be fixed by the board. In the absence of the president at any meeting a president pro tempore may be elected by the board.

"Repeal. All acts or parts of acts in conflict with this act are hereby repealed."

Under our laws no special school district can be created unless there exists as a basis therefor a platted or incorporated city, town or village. A special school district may consist only of the territory lying within a platted or incorporated city, town or village; or it may consist of such territory and additional territory adjacent thereto. Harrison School Dist. v. Minot, 48 N.D. 1189, 189 N.W. 338. The school district involved in this controversy is of the latter kind, that is, it is composed of all the territory within the village of Perth and certain adjacent territory lying without the boundaries of said village. Hence, the pertinent question on this appeal is whether, as regards such school districts, the legislative enactment of 1913 operated as a repeal of § 147, chapter 266, Laws 1911. The trial court ruled that it did, and in our opinion that ruling is correct.

It will be noted that under the law in force when the 1913 legislative assembly convened, "the treasurer of any city, town or village comprising a special school district" was ex officio treasurer of such special school district; but in a special school district comprised partly of territory without the limits of a city, town or village the treasurer was elected. The 1913 legislative assembly decided to change this. It said: "At the annual meeting on the second Tuesday in July of each year such board of education . . . shall appoint a . . . treasurer not of their own number etc." This language is definite and certain. Manifestly, it provides a new mode for selecting treasurers in special school districts. Appellant admits that this is true as regards special school districts whose boundaries are co-terminous with a city, town or village; but he contends that it is limited to such districts alone. In other words, appellant contends that the 1913 legislative enactment was intended only to change the then existing law as regards the mode of selecting treasurers in special school districts lying wholly within a city, town or village; but that it was not intended to change the then existing law as regards the mode of selecting treasurers in special school districts comprised partly of territory without the limits of a city, town or village.

In support of this contention appellant asserts that § 147 chapter 266, Laws 1911, in effect, constituted two enactments:--(1) one relating to treasurers in special school districts, lying wholly within a city, town or village; and (2) one relating to treasurers in special school districts comprised partly of territory without the boundaries of a city, town or village. And he...