State ex rel. School District No. 94, a Corp. v. Tucker
| Decision Date | 20 February 1918 |
| Citation | 166 N.W. 820,39 N.D. 106 |
| Court | North Dakota Supreme Court |
Mandamus to compel a board of arbitrators appointed under the provision of § 1327 of the Compiled Laws of 1913, to reconvene and to cause a levy to be made.
Appeal from the District Court of Cass County, Honorable, A. T Cole, Judge.
Judgment for plaintiff. Defendants appeal.
Reversed.
Reversed and remanded, with directions.
A. A Twichell, for appellants.
Special meetings of school boards are called on notice of forty-eight hours before meeting, left at residence or a personal service. Comp. Laws, 1913, § 1247.
Meetings, except stated meetings, are invalid unless members are duly notified as required by statute. 10 Cyc. 323 (2) and cases cited.
School officers possess only such powers as are granted by statute or result by fair implication from those so granted. Watts v. McLean, 28 Ill.App. 537.
Statutory powers given to school boards will not be exempted by implication, but in determining their extent and scope a strict interpretation will be adopted, and any ambiguity or doubt must be resolved in favor of the public. Seeger v. Mueller, 133 Ill. 86, 24 N.E. 513.
The school directors may bind the district by a contract made at a meeting at which the third member was present, but no contract can be made except at a meeting, and no meeting can be held unless the absent member had due notice. School Dist. v. Bennett, 52 Ark. 511, 13 S.W. 132.
But if a single member having the right to vote is not notified in the prescribed manner, and is absent and refuses to consent to proceedings had at a meeting, such proceedings are illegal and void, unless the charter or governing statute otherwise provides. 10 Cyc. 326, (9) and cases cited; Stanhope v. School Directors, 42 Ill.App. 570; Burns v. Thompson, 64 Ark. 489, 43 S.W. 499.
A board of education can perform official acts only when a quorum is assembled, as a board, by due notice to all the members. Cunningham v. Board of Education, 53 W.Va. 318, 44 S.E. 129; Beck v. Kerr, 75 A.D. 173, 77 N.Y.S. 370; 10 Cyc. 324 (4) and cases cited; Hunt v. Norwich School Dist. 14 Vt. 300, 39 Am. Dec. 225; 35 Cyc. 903 (4); Schafer v. School Dist. 116 Mich. 206, 74 N.W. 465.
Such a meeting, although irregularly assembled, may be valid if all members attend and act. 10 Cyc. 323 (D) and cases cited.
A custom or usage repugnant to the express provisions of the statute is void; and whenever there is a conflict between a custom or usage and the statute, the statute must prevail. 12 Cyc. 1054 (2) and cases cited.
The indebtedness of or between school districts shall be equalized. Comp. Laws, 1913, § 1327.
If the submission provided for a time and place of meeting of the arbitrators, the arbitrators must meet at such time and place. 3 Cyc. 639 (2) and cases cited.
Interested parties are always entitled to a hearing before a board of arbitration. 3 Cyc. 638 (d) and cases cited; Barrows v. Sweet, 143 Mass. 316, 9 N.E. 665.
Mistakes of arbitrators may be corrected either by themselves or by the court. First Nat. Bank v. Brenneman, 114 Pa. 315, 7 A. 910.
At such meeting of arbitrators all interested parties have a right to be heard by proof and argument. Hart v. Kennedy, N.J.Eq. , 20 A. 29.
The hearing of testimony by arbitrators, in the absence of and without notice to a party, is fatal to an award against said party. Vessel Owners' Towing Co. v. Taylor, 126 Ill. 250, 18 N.E. 663; Citizens Ins. Co. v. Hamilton, 48 Ill.App. 593; Dormoy v. Knower, 55 Iowa 722, 8 N.W. 670; Curtis v. Sacramento, 64 Cal. 102, 28 P. 108; McFarland v. Mathis, 10 Ark. 560; Hills v. Home Ins. Co., 129 Mass. 345; Wood v. Helme, 14 R. I. 325; Warren v. Tinsley, 3 C. C. A. 613, 2 U. S. App. 509, 53 F. 689; Conger v. Dean, 3 Iowa 463, 66 Am. Dec. 93.
The award of arbitrators must be in accordance with the submission. Fooks v. Lawson, 1 Marv. (Del.) 115, 40 A. 661; Brown v. Mize, 119 Ala. 10, 24 So. 453; Century Dig. 1899 p. 364; Century Dig. 1898 p. 344, note 28.
The state board of arbitration is bound to observe those broad rules of law and equity without which a just decision cannot be had. They have quasi judicial powers. New Orleans City & Lake R. Co. v. State Bd. of Arbitration, 47 La.Ann. 874, 17 So. 481.
Arbitrators are not partizans. They represent both parties. 3 Cyc. 625 (b) and cases cited.
The board did not consider the matters which the law compels its members to consider,--such as assets, funds on hand, schoolhouse, school sites, furniture and fixtures, school levy, and cash in treasury. Comp. Laws, 1913, § 1328; McCavick v. Independent School Dist. 25 S.D. 449, 127 N.W. 476; School Directors v. School Directors, 81 Wis. 428, 51 N.W. 871, 52 N.W. 1049; School Dist. v. School Dist. 118 Wis. 233, 95 N.W. 148; 3 Cyc. 664 (A) and cases cited.
An award which is void because of contravention of mandatory provisions of a statute is incapable of ratification by the court, and cannot be enforced. 3 Cyc. 754 (A), 818 (2) and cases cited.
A majority of the arbitrators must be present at the meeting, and a refusal of a minority to act after being duly notified is equivalent to a dissent from the award, and a majority may proceed unless unanimity of action is required by statute. 3 Cyc. 654 (11) and cases cited; Doyle v. Patterson, 84 Va. 800, 6 S.E. 138; Hewitt v. Craig, 86 Ky. 23, 5 S.W. 280.
M. A. Hildreth, for respondent.
There being no charge of corruption or bad faith in the arbitration, if they made an error in judgment, the award cannot be disturbed by this court. Perkins v. Giles, 50 N.Y. 228; New York Lumber & Wood Working Co. v. Schneider, 119 N.Y. 475, 24 N.E. 4; Re Burke, 191 N.Y. 437, 84 N.E. 405; Green-Shrier Co. v. State Realty Mortg. Co., 199 N.Y. 70, 92 N.E. 98.
Such decisions are favored by the courts. Hackney v. Adam, 20 N.D. 131, 127 N.W. 519; Johnsen v. Wineman, 34 N.D. 116, 117, 157 N.W. 679; Caldwell v. Brooks Elevator Co. , 10 N.D. 575, 88 N.W. 700; Karthaus v. Ferrer, 1 Pet. 222, 7 L.Ed. 121, and cases cited; Burchell v. Marsh, 17 How. 344, 15 L.Ed. 96.
In the absence of fraud or collusion, the award cannot be impeached. Diedrick v. Richley, 2 Hill, 271; Wood v. Auburn & R. R. Co., 8 N.Y. 160; Robertson v. M'Niel, 12 Wend. 578; Burnside v. Whitney, 21 N.Y. 148; Pierce v. Kirby, 21 Wis. 125; Conger v. Dean, 3 Iowa 463, 66 Am. Dec. 93; Wood v. Tunnicliff, 74 N.Y. 38.
Corporations may submit demands to arbitration in the same manner as individuals, unless the charter or the statute prohibits it. Brady v. Brooklyn, 1 Barb. 584; Kane v. Fond du Lac, 40 Wis. 495; People ex rel. Benedict v. Oneida County, 24 Hun, 413; Campbell v. Upton, 113 Mass. 67.
It is not necessary that there be an express agreement to abide by the award made, for the law implies this from the submission. Valentine v. Valentine, 2 Barb. Ch. 430; Byers v. Van Deusen, 5 Wend. 268; Wood v. Tunnicliff, 74 N.Y. 38.
Plaintiff's action is upon the award. It is no defense that the award is contrary to law. Jackson ex dem. Van Alen v. Ambler, 14 Johns. 96; Shepard v. Watrous, 3 Caines, 166; Cranston v. Kenny, 9 Johns. 212; Mitchell v. Bush, 7 Cow. 185.
The decision of the arbitrators is conclusive as well in respect to questions of law as to those of fact. Emmet v. Hoyt, 17 Wend. 410; Winship v. Jewett, 1 Barb. Ch. 173; Fudickar v. Guardian Mut. L. Ins. Co., 62 N.Y. 392; Perkins v. Giles, 50 N.Y. 228; Morris Run Coal Co. v. Salt Co., 58 N.Y. 667.
Every reasonable intendment will be indulged for the purpose of upholding the award. Hiscock v. Harris, 74 N.C. 108; Curtis v. Cokey, 68 N.Y. 300; Locke v. Filley, 14 Hun, 139; Ott v. Schroeppel, 5 N.Y. 482; Unterainre v. Seelig, 13 S.D. 148, 82 N.W. 394; Coleman v. Wade, 6 N.Y. 44; Boyden v. Lamb, 152 Mass. 416, 25 N.E. 609; Fudickar v. Guardian Mut. L. Ins. Co., 62 N.Y. 392; Witz v. Tregallas, 82 Md. 351, 33 A. 719; Hoffman v. De Graaf, 109 N.Y. 638, 16 N.E. 357; Sweet v. Morrison, 116 N.Y. 19, 15 Am. St. Rep. 376, 22 N.E. 276; Henry v. Hilliard, 120 N.C. 479, 27 N.E. 130; 2 Am. & Eng. Enc. Law, 794.
The claim defendant had has been merged in the award. Fudickar v. Guardian Mut. L. Ins. Co., 62 N.Y. 397; Coleman v. Wade, 6 N.Y. 44.
Courts are strict in sustaining awards. Error honestly made will not open the door for the award to be assailed. Fraud or misconduct must be shown. Hoffman v. DeGraaf, 109 N.Y. 638, 16 N.E. 357; Masury v. Whiton, 111 N.Y. 679, 18 N.E. 638.
The judgment roll is without defects, and no assignment of error is predicated thereon. Comp. Laws 1913, § 7846.
Mandamus is not an action triable de novo in the supreme court. It is a special proceeding. State ex rel. Bickford v. Fabrick, 16 N.D. 94, 112 N.W. 74.
This is a sequel to School Dist. v. Thompson, 27 N.D. 459, 146 N.W. 727, and School Dist. v. Special School Dist. 33 N.D. 353, 157 N.W. 287.
A mandamus is sought to compel a board of arbitrators to reconvene and cause a due and proper levy to be made upon the seal and personal property of Special School District Number 33, Tower City, North Dakota, for a sufficient sum to pay an award of $ 239.89, with interest at 6 per cent, which it is claimed was made on the 27th day of April, 1914.
The controversy is over which one of two awards should prevail the regularity of the one sought to be enforced being challenged by the defendants and appellants, and a subsequent award of $ 72.62 in favor of school district ...
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