State ex rel. Pritchard v. Grefe

• Decision Date: 07 July 1908
• Parties: STATE EX REL. PRITCHARD v. GREFE ET AL.
• Court: Iowa Supreme Court

139 Iowa 18

117 N.W. 13

STATE EX REL. PRITCHARD

v.GREFE ET AL.

Supreme Court of Iowa.

July 7, 1908.

Appeal from District Court, Polk County; Jesse A. Miller, Judge.

Action in quo warranto to test the right of defendants to exercise the offices of directors of the independent school district of Des Moines. The petition was dismissed, and plaintiff appeals. Affirmed.Halloran & Starkey, for appellant.

Read & Read, for appellees.

LADD, C. J.

Prior to May 21, 1907, there were 5 independent school districts wholly within the corporate limits of the city of Des Moines, and 12 such districts partly within and partly without said limits. On that day the electors of the city in pursuance of chapter 155 of the Acts of the Thirty-Second GeneralAssembly (Laws 1907, p. 153), by a vote of 3,081 for to 952 against on the question, “Shall all the territory within the city of Des Moines be united into one school district?” effected as is claimed by defendants, the consolidation of all the territory within the city boundaries as the independent school district of Des Moines. The defendants, constituting the board of directors of the independent school district of West Des Moines, passed on the sufficiency of the petition of 100 electors, ordered the election, canvassed the returns, and, upon ascertaining the result as stated, declared and recorded it, and thereupon assumed to act as directors of the new district. Their right so to do is challenged on various grounds which will appear as we proceed, and is supported by an argument containing 12 propositions subdivided into 88 points and these again separated into 132 finer points. In only one other appeal since the assignment of 485 errors in a single case prior to the repeal of the statute exacting assignments of error has genius for analysis been so signally manifested as in this argument. As the manner of compliance with as well as the validity of the act of the Legislature is assailed it may be set out. The first section limits its operation to cities of 50,000 inhabitants or more.

“Sec. 2. When a written petition, requesting the establishment of a consolidated independent district whose territory shall be co-extensive with that of such city, signed by one hundred voters of such city, is filed with the board of the school corporation, therein having the largest number of voters, it shall be the duty of said board within ten days, to call an election, at which all the voters residing in the proposed district shall be allowed to vote by ballot for or against the proposition, ‘Shall all the territory within the city of (naming it) be united into one school district?’ The board calling said election shall divide the territory within the proposed district into such number of precincts, as the board shall determine, and the judges of election shall make and certify a return of the vote to the secretary of the same board which shall, on the next Monday after the election, canvass the returns made to the secretary, ascertain the result of the election, declare the same and cause a record to be made thereof, and in all other respects, except as inconsistent with the provisions of this act, the election shall be conducted as provided by law for elections in independent school districts in cities of the first class. If a majority of the votes cast at such election is favorable to the proposition, the consolidation and formation of said independent district shall thereby be effected and the board of directors, treasurer and other officers of the school corporation then holding office in the district affected by such consolidation having the largest number of votes shall continue to hold their respective offices until the terms for which they were originally elected shall expire. The terms of office of all directors, treasurers, and officers of the boards in all other districts affected by this act, lying wholly within such consolidated district and holding office at the time of such consolidation, shall cease and determine, and in case of districts lying partly without such consolidated district, the directors, officers and treasurers shall continue to have authority only over the territory lying within their districts, and without the consolidated district; provided that nothing herein contained shall affect the terms of employment of superintendents, principals, or teachers for the current school year, in which such consolidation may be effected.

Sec. 3. All taxes previously certified during that year, shall be void so far as the property within the limits of the consolidated independent district is concerned. And all taxes necessary for the new corporation for that year shall be certified and levied as provided in section twenty-seven hundred and ninety-six (2796) of the Code. All property belonging to districts affected by such consolidation shall become the property of the consolidated district, except that in case of districts lying partly without such city, the liabilities and assets of such districts shall be equitably apportioned in accordance with chapter one hundred thirty-six (136), section thirteen (13) Acts of the Thirty-First (31) General Assembly, but nothing herein contained shall affect the rights of existing creditors.”

1. It will be noted that the petition is to be signed by voters of the city only and not less than 100 in number. Whether the requisite number did sign and were thus qualified was for the board of directors of “the school corporation therein having the largest number of voters” to determine. Ryan v. Varga, 37 Iowa, 78. Was the independent school district of West Des Moines such corporation? It included the first, second, third, and fourth wards of the city and a strip of country about two miles long and a half mile wide outside. Because a part of its territory lay beyond the city limits appellant contends that the defendants, constituting its board of directors, were without the power to act as above stated. In other words counsel argue that the “corporation therein having the largest number of voters” has reference to a corporation entirely within city limits. But such is not the language of the statute. Counsel suggest many reasons which possibly might have been persuasive in procuring a different wording had they been addressed to the Legislature, but ought not to be allowed to persuade the courts to do otherwise than give effect to the plain language employed in which no intention to discriminate between the several districts because of their location is manifested. The sole test is the number of voters within each of the several districts, the directors of the one having the most voters being authorized to pass on the petition of the 100 electors, order, and generallytake charge of the election. It is insisted, however, that in ascertaining the particular district having the largest number of voters only those residing in the city should be included. As appellees concede this and, as will hereafter appear, the number of electors residing in the city and also the district exceed that of any other and probably of all the other districts it is unnecessary to decide the point. Appellant next urges that there was no competent evidence of the relative number of voters in the 17 districts. A census of the state was taken in 1905 in pursuance of chapter 8 of the Acts of the Thirtieth General Assembly from which it appears that there were then in Polk county 30,073 male adults of whom 14,984 resided in the first, second, third, and fourth wards of Des Moines, within the district named. Laws 1904, p. 7. In the other three wards of the city were 8,621 adult males, leaving outside of the city but 6,468 voters. This act of the Legislature required the census to be published, and then declared that “such census publication shall be evidence of all matters therein contained,” so that it was competent evidence of the foregoing facts. That it was taken a couple of years previous does not, in the absence of any showing of change, impair its value as evidence, for, as has often been decided, conditions once established are presumed to continue for a reasonable time at least. State v. Jones, 64 Iowa, 360, 17 N. W. 911, 20 N. W. 470;Sigler v. Murphy, 107 Iowa, 128, 77 N. W. 577.

A witness testified over objection that the strip of land included in the district, but outside the city, was rural rather than urban, and that it was separated into farms and gardens, and that not more than 150 voters resided therein. No separate census of it had ever been taken. For the purpose of this case we are inclined to regard this evidence as competent. It was the best attainable unless a census were to be taken, and when considered in connection with the use made of the land was sufficient to show that enough voters did not reside beyond the city limits to reduce the number of voters within them to that of any other district. The relative number of voters residing in the district was further shown by proof that the school register prepared in pursuance of section 2755 of the Code for the March election of 1907 disclosed the names of 13,024 voters in this district, and but 6,180 in the school district of East Des Moines which comprised most of the city east of the Des Moines river. It may be that these registers do not contain all the voters, but they were completed so near the time of filing the petition that they furnished valuable and competent evidence of the relative number of voters in the several districts. If such evidence may not be resorted to, how shall it be ascertained which of the 17 districts had the most voters at the time of the filing of the petition? Shall a new census be taken? Certainly this was not contemplated, and in the absence of such proof we are of the opinion that the evidence was competent, and that it satisfactorily proves that the largest number of voters, without counting those outside the city, lived in the district of which de...