State ex rel. Nicholson v. Ferguson

• Decision Date: 27 February 1912
• Parties: STATE ex rel. NICHOLSON et al. v. FERGUSON et al.
• Court: North Dakota Supreme Court

23 N.D. 153

134 N.W. 872

STATE ex rel.

NICHOLSON et al.

v.FERGUSON et al.

Supreme Court of North Dakota.

Jan. 29, 1912.

Rehearing Denied Feb. 27, 1912.

Syllabus by the Court.

In 1883 congressional township 146 N., of range 66 W., in Foster county, was organized into a common school district. In 1900 the city of Carrington was incorporated, embracing all of section 19 in said township. In 1902, pursuant to a petition, notice, etc., an election was held in such school district for the purpose of organizing the same into a special school district, which proposition carried by practically a unanimous vote, and ever since the date of such election the inhabitants of such township have recognized such special school district corporation and such corporation has regularly elected its officers, levied taxes, issued bonds, and expended large sums for educational purposes. In 1906 such congressional township, with the exception of section 19, was organized as a civil township. Thereafter and in September, 1907, the resident electors and taxpayers of such civil township petitioned the board of county commissioners and the superintendent of schools to segregate the territory embraced in such civil township from the school district aforesaid, and to organize therein a distinct school district. Such petition was denied and relators seek by mandamus to compel compliance therewith by the officers aforesaid.

Held: (1) That such special school district is at least a de facto school corporation, and its due organization will not be inquired into in a mandamus proceeding.

That the territory which relators seek to have segregated and organized into a distinct school district being embraced within such special school district section 949, R. C. 1905, is controlling. This section provides: “That the county commissioners shall detach any part of such adjacent territory which is at a greater distance than 3 miles from the central school in such special district and attach to any adjacent school or special district or districts upon petition to do so, signed by three-fourths of the legal voters of such adjacent territory.”

The relators were therefore not entitled to the relief prayed for, and the district court properly quashed the writ.

Appeal from District Court, Foster County; J. A. Coffey, Judge.

Application by the State on the relation of Norman Nicholson and another, for mandamus to Kenneth Ferguson and others, as the board of county commissioners of Foster county, and another. From a judgment quashing an alternative writ of mandamus, plaintiffs appeal. Affirmed.S. E. Ellsworth, for appellants. Edward P. Kelly and C. B. Craven, for respondents.

FISK, J.

This is an appeal from a judgment of the district court of Foster county refusing the issuance of a peremptory writ of mandamus as prayed for by relators, and dismissing relators' alternative writ with costs to respondents.

The facts are not in dispute, and are in substance as follows: At the time the alternative writ was issued the respondents Ferguson, Ballard, and Zink were the duly elected, qualified, and acting county commissioners of such county, and respondent Cain was the duly elected, qualified, and acting county superintendent of schools therein. That relators are resident citizens, electors and taxpayers of the civil township of Carrington which embraces all of the territory within congressional township 146 N., of range 66 W., in said county, with the exception of section 19 in such township, which embraces the municipality known as the city of Carrington. In October, 1883, the entire congressional township aforesaid was duly organized as a general school district, and it thus remained until June 3, 1902. In November, 1900, section 19 in said township was duly and regularly organized and incorporated as the municipality of the city of Carrington, ever since which time it has existed as such municipal corporation. On June 3, 1902, pursuant to a prior petition therefor and notice thereof, an election was held in school district No. 10, the purpose and object of which was to organize a special school district out of the entire territory embracing such district No. 10, at which election 110 votes were cast in favor of the organization of such special district, and but 3 votes were cast against such organization, whereupon the proposition to create such special school district was declared carried, and thereafter and in the month of June of said year an election was held for the purpose of electing 5 directors of such special district pursuant to law. Such directors were elected and thereafter duly qualified, and from such date to the present time such special school district organization has transacted business as such, and has at all times been recognized accordingly by the inhabitants therein.

In October, 1906, the territory embraced in such congressional township, with the exception of ...