State ex rel. Hallgarth v. School District No. 23

• Decision Date: 03 September 1946
• Citation: 172 P.2d 655,179 Or. 441
• Parties: STATE EX REL. HALLGARTH <I>v.</I> SCHOOL DISTRICT NO. 23, UNION COUNTY ET AL.
• Court: Oregon Supreme Court

179 Or. 441

172 P.2d 655

STATE EX REL. HALLGARTH

v. SCHOOL DISTRICT NO. 23, UNION COUNTY ET AL.

Supreme Court of Oregon.

Submitted on briefs September 3, 1946.

Affirmed September 17, 1946.

Schools and school districts — Municipal corporations — De facto

1. Municipal bodies, such as school districts, organized in imperfect compliance with a statute under which they could have achieved a de jure status, but which exercised in good faith the powers which they imperfectly secured, are recognized as "de facto municipal corporations."

Schools and school districts — Consolidation — De facto corporation

2. Where ten school districts approved at election a plan of consolidation, and thereafter they put the plan into effect, and consolidated district was organized, levied taxes, held elections, purchased property, sold property, began construction of school house, and contracted with bank to sell bonds, consolidated school district was at least a "de facto corporation."

Quo Warranto — Schools and School Districts

3. A de facto municipal corporation, such as a consolidated school district, is not exempt from attack in quo warranto proceedings brought directly against it by the state or on the relation of a private person.

Quo Warranto — Schools and School Districts

4. Though a de facto municipal corporation, such as a consolidated school district, is not exempt from having its imperfections revealed when attacked by writ of quo warranto, not every one who chooses to denominate himself a relator, and who seeks to challenge the validity of the municipal corporation, is at liberty to select his own time for launching the attack.

Quo warranto — Burden of proof

5. A writ of quo warranto is one of the extraordinary remedies afforded by law, though it still retains some of its ancient criminal aspects, such as enabling the court to fine the defendant, yet it casts the burden of proof upon the defendant to make disclosure concerning the facts averred by the relator.

Quo warranto — Extraordinary remedy

6. When relator seeks to avail himself of such an extraordinary remedy as quo warranto, courts are justified in viewing his application with scrutinizing eyes, especially if it appears that the one whose office is attacked is serving the public interest without compensation.

Quo warranto — Private interests

7. Quo warranto proceedings cannot be maintained for the protection of private interests.

Quo warranto — Laches

8. Where result of a judgment in favor of relator in quo warranto proceeding would be to render a sizeable area served by defendant school district devoid of school facilities, relator was required to explain his delay of one year in bringing the proceeding.

Quo warranto — Laches

9. Relator who delayed for a year in bringing quo warranto proceeding to declare consolidation of ten school districts void because of alleged irregularities in petition requesting submission of question of consolidation and in notices of election, was barred by laches, where during that year nine of original school districts disbanded, and consolidated school district was organized, levied taxes, made expenditures, took over the properties of the ten districts, began construction of school house and contracted with bank to sell its district's bonds.

                  See 47 Am. Jur. 314; 44 Am. Jur. 98, 123; 56 Schools and school
                districts, § 90
                

IN BANC.

Appeal from Circuit Court, Union County.

R.J. GREEN, Judge.

W.F. Brownton, of La Grande, and George L. Anderson, District Attorney for Union County, of La Grande, for appellant.

Cochran and Eberhard, of La Grande, for respondents.

AFFIRMED.

ROSSMAN, J.

This is an appeal by the plaintiff from a judgment entered by the circuit court in favor of the defendants, School District No. 23 of Union County, its directors, its clerk and First State Bank of Elgin. The action was instituted by the State upon the relation of one Joe Hallgarth, who is the owner of property situated in the school district. The relator claims that a consolidation order, which was entered June 14, 1945, by the Union County district boundary board, and which consolidated ten school districts into the defendant district, was not a valid order. Based upon that premise, he contends that the district and its officials lack lawful authority to pursue their functions. The action was submitted to the circuit court upon an agreed statement of facts as authorized by §§ 6-501 to 6-503, O.C.L.A. The parties agree that the action is quo warranto in nature. See §§ 8-801 to 8-815, O.C.L.A. Specifically, the appellant cites § 8-804, subd. 3, which reads as follows:

"An action at law may be maintained in the name of the state, upon the information of the prosecuting attorney, or upon the relation of a private party against the person offending, in the following cases: * * * (3) When any association or number of persons act within this state, as a corporation, without being duly incorporated."

In other words, the appellant challenges the validity of the defendant school district.

We quote from the agreed statement of facts:

"The relator demands judgment against the defendants that they be perpetually enjoined and restrained from transacting business as a consolidated school district, that the attempted consolidation of the outlying districts with the original School District No. 23 be declared void and of no effect, and that as to such lands and districts the defendant's directors and clerk be adjudged to be unlawfully usurping and exercising power and jurisdiction over these districts, * * *."

The circuit court found that the consolidation was effected in the manner permitted by law and granted judgment in favor of the defendants.

Before the entry of the attacked consolidation order the boundaries of School District No. 23 were virtually the same as those of the city of Elgin. It was a school district of the third class as that term is defined in § 111-802, O.C.L.A. The nine other school districts which were consolidated with No. 23 by the order of June 14, being Nos. 14, 26, 29, 36, 45, 51, 59, 64 and 67, were also third class districts. The parties refer to them as the outlying districts. The number of school children residing in each of them was less than in the Elgin district, but after all ten were united into the consolidated district the latter's school population was in excess of two hundred and it was, therefore, a district of the second class (§ 111-802, O.C.L.A.).

In April of 1945 the Elgin school facilities, with the exception of the gymnasium, were destroyed by a fire and thereupon a proposal was made to consolidate the ten districts.

As the result of an election held June 1, 1945, the district boundary board (§ 111-401, O.C.L.A.) entered the attacked order. It united into one the aforementioned districts and entitled it Consolidated School District No. 23. Chapter 49, Oregon Laws of 1943, authorizes the consolidation of "contiguous school districts" and delineates the procedure which must be followed in their consolidation. The appellant does not challenge the personnel of the Union County boundary board, the votes which were cast June 1, 1945, the form of the ballots nor the entry of the consolidation order. It is conceded that the consolidation measure prevailed in all of the ten districts. According to the statute last cited, whenever it is proposed that "two or more contiguous school districts" shall consolidate into one district, a petition must be presented to the district boundary board from each of the districts which it is sought to unite "setting forth specifically the districts it is proposed to consolidate." After the act has specified the number of qualified voters who must sign the petitions it says that the district boundary board, upon receiving petitions properly signed, must select a day for the election, notify the district school boards thereof and "be responsible for the posting of notices for a school meeting in each district to vote upon the question of consolidation of the districts designated in the notice from the district boundary board." It adds that the districts which it is proposed to consolidate "shall specifically be designated in the notice of the meeting."

The appellant's brief sets forth six assignments of error which, however, present only five contentions. They are: (1) The petitions filed with the district boundary board by all of the districts, except No. 23, and which resulted in the election of June 1, were invalid because they failed to name all of the districts which it was proposed to consolidate; (2) the notices which were posted in all of the districts, except in No. 23, failed to designate all of the districts which sought consolidation; (3) the ten districts which sought consolidation were not contiguous; (4) the clerk and the three school directors, who were chosen in an election which was held after the consolidation order had been entered, were not lawfully elected; and (5) the school building bonds, which are described in the agreed statement of facts and which the defendant district proposes to issue, will not be lawful obligations of the district.

The predicates for the two contentions last mentioned are virtually the same as for the first two, and if the first two are resolved against the appellant, the latter two must fail.

The following drawing shows the relative position of the ten original districts; the attacked order united them into one known as School District No. 23.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

May 11, 1945, there was presented to the aforementioned district boundary board the petitions for consolidation which the appellant attacks. They were ten in number. Each emanated from one of the aforementioned school districts and each bore the required number of signatures. May 12, 1945, the board met, considered the petitions and ordered that an election be held in all of the districts on June 1, 1945,...