State ex rel. Laird v. Gang

• Decision Date: 15 June 1901
• Citation: 10 N.D. 331,87 N.W. 5
• Parties: STATE ex rel. LAIRD v. GANG et al.
• Court: North Dakota Supreme Court

10 N.D. 331

87 N.W. 5

STATE ex rel.

LAIRD

v.GANG et al.¹

Supreme Court of North Dakota.

June 15, 1901.

Syllabus by the Court.

1. The board of county commissioners having found that a certain petition for the organization of a civil township contained the requisite number of legal voters, and having acted thereon by taking the necessary steps to organize such township, held, that the question as to the sufficiency of such petition is not open to judicial investigation in mandamus proceedings to compel the calling of an election for school officers in such township. Following State v. Langlie, 67 N. W. 958, 5 N. D. 594.

2. Upon the organization into a civil township of a portion of the territory comprising a school township corporation, held, construing sections 658, 659, Rev. Codes, that such civil township continues for school purposes as a part of such school township corporation until segregated therefrom by the commissioners and county superintendent of schools, upon petition of the voters.

Appeal from district court, Towner county; D. E. Morgan, Judge.

Application by Robert J. Laird for a peremptory writ of mandamus to compel the county superintendent of schools to call an election in Greenfield township for the purpose of electing school officers. From a final judgment awarding the writ. defendant appeals. Reversed.Brennan & Kennedy, for appellants. Newton & Smith, for respondents.

FISK, J.

This is an appeal from a judgment of the district court of Towner county, directing the issuance of a peremptory writ of mandamus to compel the defendant, as county superintendent of schools, to call an election in Greenfield township for the purpose of electing school officers, pursuant to section 671, Rev. Codes. The facts, briefly stated, are that Towner county was organized on or about the 6th day of November, 1883, and during the same year, or the following year, was divided into school townships. Congressional township 160, range 68, together with three other congressional townships, was organized into one school township, under the name of “New City School Township.” In April, 1895, township 160, range 68, was attempted to be organized into a civil township, and the relator bases his claim to a writ upon the proposition that, by the organization of said township into a civil township, said territory ipso facto became a distinct school township corporation, and hence that it became the duty of the county superintendent of schools to call an election, etc. New City school township was permitted to intervene, and the contention of the defendant and intervener is-First, that the territory designated as Greenfield civil township was not legally organized into a civil township; and, second, conceding that it was so organized, that it did not ipso facto become a distinct school corporation; that certain steps which were not taken were required by law to be taken in order to complete such organization; and hence, that it was in error to issue such peremptory writ of mandamus.

We are required by this appeal to review the entire case, but, before considering the merits, we will first dispose of a preliminary question of practice which is raised by counsel for respondent. A motion was made to dismiss the appeal for duplicity. The notice of appeal states, in substance, that appellants appeal from the judgment, and from all orders made by the district court prior to said judgment. The record discloses that numerous orders were made prior to the entry of final judgment, including an order denying a motion to quash the alternative writ, and also an order overruling the demurrer to the complaint or affidavit upon which the alternative writ was issued; and respondents argue that by attempting to appeal from the judgment, and also from such orders, the appeal is bad for duplicity. This point would be well taken if said orders were appealable, and the time for appeal from the same had not expired. In the case of Prondzinski v. Garbutt (N. D.) 83 N. W. 26, this court had occasion to refer to this subject, and numerous authorities are there collated holding such double appeals bad. The order overruling the demurrer was, of course, appealable, but the same was made and served upon defendants' counsel in July, 1899, and the time for appeal therefrom had therefore long since elapsed when this appeal was taken, and, the other orders not being appealable, we must overrule said motion.

The record presents a great mass of objections, exceptions, and so-called “assignments of error”; but in disposing of the case on the merits we do not deem it necessaryto notice each of them, but shall confine the opinion to the two propositions above referred to, which to our minds are the vital questions involved.

First, we will consider the question as to the incorporation of Greenfield civil township; for if such township was never legally organized as a civil township, and appellants are permitted to raise such question in this proceeding, then the judgment below was erroneous. Respondents contend that it was organized in 1895, under the provisions of chapter 10 of the Political Code, entitled “Township Organization,” as found in Comp. Laws, § 704 et seq. Section 704 reads: “That whenever a majority of the legal voters of any congressional township in this territory containing twenty-five legal voters petition the board of county commissioners to be organized as a town under this article, said board shall forthwith proceed to fix and determine the boundaries of such new town and to name the same,” etc. Section 706 provides for the naming of such townships; and section 707 provides as follows: “The county commissioners shall thereupon make out notices designating a suitable place for holding the first town meeting in each town, which shall be holden within twenty days after such town is organized,” etc. From the foregoing language it is apparent that the township becomes organized before the election of its officers. It precedes such election. Counsel for appellants cite numerous authorities holding that the election of officers is a part of the organization of the town, but it will be found upon investigation that each of these cases arose in states having radically different statutes than this state, and are therefore not in point. Pursuant to the provisions of our Code above quoted, a petition asking for the organization of this township as Greenfield civil township was presented to the board of county commissioners, and the same was indorsed “Approved and allowed January 9, 1895,” by the chairman of the board of county commissioners; and in the commissioners' record, which was introduced in evidence, we find the following entry: “January 9, 1895. Petition of Robert J. Laird and others, asking that township 160, range 68, be set apart and organized as a civil township, is hereby granted, and the county attorney is requested to prepare the necessary papers and instructions to carry this order into force and effect, the said civil township to be known as ‘Greenfield.’ Carried.” And in such record, under date of April 1, 1895, is the following: “Upon motion, the following resolution was adopted: ‘Whereas, a majority of the legal voters of township 160, range 68, a congressional township containing twenty-five legal voters, having petitioned the county commissioners to organize as a town under article 1, c. 10, of the Compiled Laws of 1887, resolved, that said congressional township 160, range 68, be, and the same is hereby, set apart and declared to be a town under the provisions of said law, and shall be designated by the name of the town of Greenfield.” The county auditor is hereby authorized and directed to make out three notices for holding the first meeting, and the residence of R. J. Laird, in said township, is hereby designated as the place for holding said first town meeting, and the time is hereby designated as Thursday, April 25, 1895, at two o'clock p. m.; and the auditor is further directed to deliver said notices to the sheriff of said county, who shall cause the same to be posted in said township not less than ten days before the 25th day of April, 1895.”’ Said record is signed, “E. E. Priest, Chairman of the Board of County Commissioners,” and the same is attested by “D. K. Brightbill, County Auditor.” It appears by the testimony of Robert J....