State ex rel. Keary v. Mohr
| Decision Date | 24 June 1924 |
| Docket Number | No. 35993.,35993. |
| Citation | 199 N.W. 278,198 Iowa 89 |
| Parties | STATE EX REL. KEARY ET AL. v. MOHR ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Calhoun County; E. G. Albert, Judge.
This is a quo warranto proceeding whereby it is sought to adjudicate the dissolution of a school district corporation. The relators are voters and taxpayers in the district, and the defendants are the corporation and its officers. There was a judgment of ouster, and the defendants appeal. Affirmed.Healy & Breen, of Ft. Dodge, J. F. Lavender, of Rockwell City, and Stipp, Perry, Bannister & Starzinger, of Des Moines, for appellants.
Salinger, Reynolds, Meyers & Cooney, of Carroll, for appellees.
The corporation is known by the name “independent consolidated school district of Yetter,” and is located in Calhoun county. It was organized pursuant to statutory procedure on February 25, 1920. Its officers were duly elected on March 20, 1920, from which date it functioned as a going corporation. In purported pursuance of statutory procedure proposing a dissolution thereof, an election was held on November 16, 1921, wherein the proposition was submitted to the voters “for” and “against” dissolution. The corporation officials, acting as judges of the election, announced the result of such election as a tie vote; being 122 “for” dissolution and 122 “against” dissolution, and declaring the proposition lost. This proceeding is in the nature of a contest of the decision of the judges of election thus announced. It is not a challenge to the legality of the original organization of the district as a school corporation. The contention of the relators is that the result of the said election of November 16, 1921, was not a tie as announced by the judges of election; that on the contrary a majority of the votes cast were in favor of the dissolution, and that such majority vote worked a legal dissolution of the corporation. The primary issue tried was whether a majority of the votes cast was in favor of the dissolution.
It appears that 254 ballots were deposited in the ballot box. The judges of election rejected 10 of such ballots as having been improperly marked and as being unintelligible. Of the remaining 244 ballots 122 were counted “for” dissolution and 122 “against.”
On the trial below the court found that 5 of the 10 rejected ballots were properly rejected, and that the other 5 were improperly rejected, and, therefore, should have been counted. Of the 5 ballots improperly rejected 4 were “for” dissolution and 1 “against.” No complaint is made of such finding. On this basis the vote would have stood 126 “for” and 123 “against.” But the court also found in this connection that Ungrue, who had voted “for,” and Scaarup, who had voted “against,” were not electors, and their votes were deducted from the respective totals. On this basis, the vote stood 125 “for” and 122 “against.” These totals would of themselves be decisive of this issue were it not for the contention of defendants that it was not sufficient for the relators to show that a larger number of ballots were cast “for” the dissolution than were cast “against” it; but that such larger number so cast “for” must be a majority over all votes cast by legal electors, whether such votes were intelligible and countable or not; and that the 5 rejected ballots must be included in the count for the purpose of determining whether there had been a majority “for” dissolution. To this contention the relators interposed a two-fold resistance: (1) That the point was not tenable in law; (2) that 3 of the votes counted “against” dissolution were cast by nonelectors, Culver and Yepson and Mrs. McCullough; and that such votes must therefore be deducted from the count. An issue was made upon the legality of these 3 votes. The case was tried to a jury. By agreement of the parties the question whether Culver, Yepson, and Mrs. McCullough or either or any of them were electors was submitted to the jury for special findings. The other issues of fact were by agreement submittedto the court. The jury returned special findings adverse to the legality of the vote of each of the three named persons. One of the principal questions now presented to us is whether the court should have held as a matter of law upon the record that each of the three persons in question was a legal voter. We give our first attention to it.
[1][2] I. Taking first the case of Yepson; Yepson had formerly lived at Yetter. In November, 1919, he went to Kanawha, and was there continuously until November, 1921, engaged in his brother's store. On November 3, 1921, he came to Yetter to engage temporarily in husking corn for his brother. He remained in that work until December 10th following, and then returned to Kanawha, where he had remained up to the time of the trial. It will be seen that the question of his residence turned on the question of his own real intent and purpose. If he intended to retain Yetter as his home and to return thereto, it was within his legal right to do so. If he intended to take up his legal residence at Kanawha, that also was within his legal right. He was an unmarried man. He paid his poll tax at Kanawha. On trips away from Kanawha he had registered his residence as “Kanawha” on the hotel registers. He was a member of the baseball team of Kanawha and of the American Legion of that place. Confessedly he was by his own intent a resident of Kanawha on and at all times after January, 1922. He did testify that it was in January, 1922, he formed the purpose of becoming a resident of Kanawha. But no change had occurred in his outward attitude at that time. The court submitted the question to the jury whether Yepson had prior to November 16, 1921, become in purpose a resident of Kanawha. If yea, he was not a legal elector at Yetter. The finding of the jury was adverse to the claim of residence at Yetter. We think the evidence was such as to make a fair question for the jury. Though Yepson had a right to testify to his own purpose, and though such purpose were controlling, and though no other witness could directly contradict his testimony in that regard, yet his testimony was subject to contradiction by the circumstances and by his conduct. From these the jury had a right to find that he had in purpose taken his residence at Kanawha prior to November 16th, notwithstanding his testimony to the contrary.
[3] Turning to the case of Culver: He was a teacher in the consolidated school. He began his employment there in September, 1921. His contract of employment terminated in March, 1922. Prior to September, 1921, he had been a resident of Hubbard in Hardin county, Iowa, for more than ten years. He owned a home there. His family, consisting of wife and son, were occupying that home at Hubbard while he was engaged in teaching at Yetter. His testimony as to his purpose was that he intended to make his home at Yetter as long as his employment should continue. So far as his present contract was concerned, he had no intention to stay there longer than until March, 1922, unless he could secure a renewal of the contract. It appears also that during the ten preceding years while he had continued his home at Hubbard he had been continuously engaged in teaching in various towns successively. He had taught at Otteson for four years. During part of that time he had taken the wife and son with him, taking along sufficient furniture to keep house. At the end of the school year they returned to the home at Hubbard, and this they did every year. He taught for a year at Troy, while the wife and son remained in the home at Hubbard. He taught also at Kinross, while his family remained at the Hubbard home. He taught a year at Crystal Lake and took his family with him. The Hubbard home was locked up during their absence. At the close of the school year they all returned thereto. While he was teaching at Yetter, his son was attending the high school at Hubbard as a resident pupil and paying no tuition. The father maintained a post office box in the town of Hubbard at all times. We think these circumstances were abundant to warrant a submission of the issue to the jury. The jury finding was adverse to the legality of his vote.
[4] Turning to the case of Mrs. McCullough: It appears that she was a married woman who had lived with her husband at Pomeroy, Iowa, until September preceding the election. At that time she came to the home of her daughter at Yetter. Her husband maintained his residence at Pomeroy. This was sufficient to establish her prima facie residence at Pomeroy. To meet this prima facie case she testified for the defendants as follows:
“I formerly lived at Pomeroy. I was married to Mr. McCullough in 1898. We have one daughter. She is married. Her name is Mrs. Frank A. Gurget. She and her husband live at Yetter. During our married life I have always contributed to my own support and that of my daughter. I was a dressmaker in Pomeroy. I have kept roomers and boarders. I bought some of the furniture for the house. Mr. McCullough has used liquor. He has frequently been intoxicated. I moved over to Yetter the first week in September, 1921, and moved the furniture over there. I have been living over there ever since.
Q. Who lives with you in Yetter? A. My daughter and her husband. Myself and my daughter and her husband lived in the same home since we have been in Yetter. I moved to Yetter intending to make it my home. That has been my intention ever since and is now. I have never been back to Pomeroy since I have lived in Yetter, only to visit friends. My husband has no home there to visit. I have no intention of going back to Pomeroy to live. BeforeI left Pomeroy Mr. McCullough was away a large portion of the time. He was away perhaps a third of the time.”
[5] It further appears that her husband visited her at Yetter since her arrival there, and that he spent a week with her in the daughter's home at one time. Though he...
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