State ex rel. School Dist. No. 56 Traverse County v. Schmiesing, s. 36328

• Decision Date: 06 August 1954
• Docket Number: 36348,Nos. 36328,s. 36328
• Citation: State ex rel. School Dist. No. 56 Traverse County v. Schmiesing, 66 N.W.2d 20, 243 Minn. 11 (Minn. 1954)
• Court: Minnesota Supreme Court
• Parties: STATE ex rel. SCHOOL DIST. NO. 56 TRAVERSE COUNTY et al. v. SCHMIESING et al. STATE ex rel. SCHOOL DIST. NO. 56 TRAVERSE COUNTY et al. v. WERNER et al.

Page 20

66 N.W.2d 20

243 Minn. 11

STATE ex rel. SCHOOL DIST. NO. 56 TRAVERSE COUNTY et al. v.SCHMIESING et al.

STATE ex rel. SCHOOL DIST. NO. 56 TRAVERSE COUNTY et al. v.WERNER et al.

Nos. 36328, 36348.

Supreme Court of Minnesota.

Aug. 6, 1954.

Syllabus by the Court.

1.If a hearing on a final report of a school survey committee is held in the districts included in a proposed school reorganization, pursuant to M.S.A. §§ 122.47and122.52, it is unnecessary that additional hearings be held on a subsequent revision in those districts not affected by such revision.

2.Section 122.21, as incorporated in § 122.52, requires Publication of notice of election only when a newspaper is published in the districts involved in the school reorganization, and neither the school survey committee nor the county superintendent of schools have binding authority to order publication of notice outside the mandate of the statute.

3.Improperly constituted membership of a county survey committee is not a defect which will invalidate a school reorganization election, if the committee was properly constituted during the time it performed those duties which are held to be jurisdictional prerequisites of a valid election.

4.Although § 122.52, subd. 2, does provide that elections should be held in the district school building whenever possible, the statute vests discretion in designating the voting place in the school survey committee and the county superintendent.

5.If an election has been honestly and fairly conducted, an appointment, made by persons not so authorized by statute, of additional judges who are not school board members as required by statute is not fatal to the validity of the election, in the absence of a showing of the availability of school board members at the time of the appointment.

6.Where § 122.52, subd. 2, requiring the school election polls to be open at least two hours, is violated by reason of failure of the polls to open in three out of ten districts involved due to severe weather, snow, and adverse highway conditions, and where the proved number of votes rejected would be insufficient to alter the result of the election, such violation does not invalidate the election if it was otherwise fairly and honestly conducted.

7.The statutory right of appeal provided by § 122.48 is granted only when the prerequisites to appeal set forth in said statute are fully complied with.

Johanson, Winter & Lundquist, Wheaton, for appellants.

Field, Arvesen & Donoho, Fergus Falls, for respondents.

NELSON, Justice.

This is a proceeding in quo warranto originally commenced in the district court for the county of Traverse with the consent of the attorney general to determine whether Independent Consolidated Joint School DistrictNo. 61 of Traverse county and No. 86 of Wilkin county is a lawfully constituted consolidated school district; whether it has authority to function as a duly organized school district; and further whether the respondent individuals named are authorized to act as school board members of said district.The trial court made findings in favor of respondents, and relators moved in the alternative for amended findings or for a new trial.Relators appeal from an order denying this motion.

Relators in this proceeding raise the question whether Independent Consolidated Joint School DistrictNo. 61 of Traverse county and No. 86, Wilkin county, is a public corporation, legally organized and existing under the laws of this state.They raise no question as to the validity of the election of the members of the school board.

A school survey committee of nine members was created pursuant to M.S.A. §§ 122.40 to 122.57 of the reorganization act.This committee was regularly elected.After compliance with all statutory requirements governing school reorganizations, an election was held January 8, 1952, at which the recommendations made in the report of the school survey committee were defeated.Thereafter the school survey committee revised its former final reorganization proposal and recommendations by deleting a district and parts of two others from the proposed plat and adding the remainder of district No. 10 in Wilkin county, a portion of which had been included in the final plan prior to this revision.The school survey committee later held a meeting in the added area on December 22, 1952, 30 days before any further election, as required by the act, §§ 122.47and122.52, since no previous meeting under § 122.52 had been held in this added area.Public meetings provided for under § 122.52 had been held in every school district included in the final report of the school survey committee, as originally filed, between the year 1948 and the January 8, 1952, election.We think this appears without dispute.

1.Relators contend that the changes made and recommended by the school survey committee required it to hold additional meetings or second hearings in every district or portion thereof included in the later revised final report.The statute makes no provision for any additional hearings either as originally enacted in 1947 or after amendments of 1949, 1951, and 1953.Section 122.52, subd. 3, which provides for calling another election when reorganization has failed in a prior election, makes no reference to any additional hearings.

The revised final report was approved by the state advisory commission in due time before the last hearing required by the act held on December 22, 1952.Whatever additional public meetings were thereafter held in 1953 before the next election are unimportant since the only additional hearing required was held on the revised final report of the school survey committee on December 22, 1952.If the citizens and voters in the proposed district as revised chose to meet additionally for discussions, they were free to do so under the general right of public assembly, even though the school survey committee had on January 29, 1953, set the next election date for February 20, 1953.

In State ex rel. Klitzke v. Independent Consol. School Dist. No. 88, --- Minn. ---, ---, 61 N.W.2d 410, 417, this court said:

'Neither the survey committee nor the state advisory commission have any authority to establish legal rights.They have the power to study and consider reorganizations of school districts for purposes of recommending the adoption of a plan to be submitted to the voters, but neither has the power to create a school district.The survey committee has the power of approval upon the call of another election and the county superintendent then proceeds with the election call, § 122.52(1, 2, 3), but no legal rights are or can be established until the legal voters in the area have adopted the plan of reorganization by a majority vote and the county superintendent has issued proper orders to give effect to the vote.§ 122.52(4).Whatever legal rights are established are established by the legal voters in a free and open election.State ex rel. Huntley School Dist. No. 4 v. Schweickhard, 232 Minn. 342, 45 N.W.2d 657.'

2.Notice of the 1953 election was duly and properly posted by the county superintendent of schools pursuant to statute.The county superintendent determines the date with the approval of the survey committee.The call had the approval of the school survey committee based upon its report in its revised form.Although the survey committee in issuing its approval indicated that the superintendent was directed to Publish the election notice, this was not necessary in order to comply with the required statutory notice, since § 122.21, as incorporated in § 122.52, requires publication of notice only when a newspaper is published within the proposed consolidated district, and there was no newspaper published within the territory involved.Therefore the order for publication by the survey committee was immaterial to the validity of the election.

3.The school election of February 20, 1953, was held for the purpose of putting to a vote the reorganization into a new district of districts 14, 27, 36, 41, 44, 56, 60, 17 less section 15, 28 less sections 29and32 of Traverse county, and district No. 35 and district No. 10 less sections 9and10 of Wilkin county.At this election the proposal for reorganization carried, the vote in the rural areas being 94 in favor of reorganization and 70 opposed, and in the urban area, 82 in favor of reorganization and five opposed.No election was held in three of the rural districts due to a severe snowstorm, inclement weather, and highway conditions in these three districts.Thereafter and on March 2, 1953, the superintendent issued an order reorganizing the territory into one school district to be known as Independent Consolidated Joint School DistrictNo. 61 of Traverse county and No. 86, Wilkin county.On April 13, 1953, the individual respondents in this proceeding were duly elected members of the school board of the new school district and thereafter duly qualified.

Relators contend that the election of February 20, 1953, was invalid and void.When the Traverse county school survey committee was established at a meeting held on November 7, 1947, five rural and four urban members were elected as required by statute.The membership continued in this proportion only until the spring of 1952 when Fred Lichtsinn, an original rural member, moved his place of residence to the village of Wheaton, an urban district.Relators contend that the calling of the 1953 election was void because At that time the survey committee was not properly constituted.It must be pointed out, however, that until the spring of 1952 the committee consisted of five rural and four urban members as provided by statute and that prior to this date the committee had completed its main duties.As of that time the original final report had been prepared and filed, all pursuant to statute, and one election had already been held.The only action taken after one of the...