State ex rel. Sullivan v. School Dist. No. 1 of Silver Bow County

• Decision Date: 10 October 1935
• Docket Number: 7486.
• Parties: STATE ex rel. SULLIVAN v. SCHOOL DIST. NO. I OF SILVER BOW COUNTY et al.
• Court: Montana Supreme Court

50 P.2d 252

100 Mont. 468

STATE ex rel. SULLIVAN v. SCHOOL DIST. NO. I OF SILVER BOW COUNTY et al.

No. 7486.

Supreme Court of Montana

October 10, 1935

Original proceeding by the State, on the relation of John Sullivan against School District No. 1 of Silver Bow county and the Board of Trustees thereof for an injunction.

Application for writ denied and proceeding dismissed.

Earle N. Genzberger, of Butte, for relator.

Clarence Hanley, of Butte, for respondents.

STEWART Justice.

Application for writ of injunction. This is the second application to this court for a writ of injunction by the state, on relation of a taxpayer, against school district No. 1 of Silver Bow county and the trustees thereof, to prevent the issuance of bonds for the purpose of obtaining a loan from the federal government under the National Industrial Recovery Act, 48 Stat. 195.

Heretofore in the case of State ex rel. Fisher, Relator, v. School District No. 1 of Silver Bow County et al., Respondents, 97 Mont. 358, 34 P.2d 522, this court reviewed and approved the matter of an election held by the district as a condition precedent to the bonding of the district for the erection of a new high school building. That case involved the regularity and legal effect of an election held on February 3, 1934. The election and the procedure incident thereto, and the legal effect thereof, are again challenged in this proceeding. It is not necessary to restate all of the facts and incidents of the election. It is sufficient here to refer to the former opinion for a full statement of the case. We need only detail such facts as have a bearing on the new matter immediately under consideration.

It is again sought to enjoin the respondent school district and its trustees from proceeding further to levy taxes on the property within the district to pay the bonds which it is proposed to issue under authority granted them by the electors at the February 3, 1934, election, and to enjoin and restrain the respondents from building or equipping a high school within the district on a site selected by the voters at the election, and from in any manner proceeding to carry out or perform the provisions of the agreement entered into between the respondents representing the district, and the government of the United States in the month of August, 1935 with reference to the borrowing of the sum of $440,000, or any other sum, and the selling of bonds for the repayment thereof. By stipulation the proceedings of the board and the contract of August 9, 1935, have been certified to this court, and are before the court for its information.

The facts on which relator bases his right to relief are briefly as follows: (1) Fraud and misrepresentations practiced by or with the knowledge of the board in connection with the election. (2) Fraud and misrepresentation alleged to have been employed by the board in the closing of the Washington Junior High School. (3) Unauthorized acts of the board in passing the resolution of February 8, 1935, and in selecting the "central site" which had been theretofore disapproved by the electors. (4) Fraud and misrepresentation on the part of the board in connection with the election of April 7, 1934, by reason of the fact that only two sites were submitted to the electors by the board. (5) Unlawful and unauthorized acts of the board in passing a resolution on April 7, 1934, more than sixty days after the election. (6) Unlawful and unauthorized acts of the board in passing the resolution of August 9, 1935, more than sixty days after the election. This resolution was one to accept a new offer of the government of the United States based on rules and regulations not in force or effect or contemplated at the time of the election, and which rules were not known to the electors or the school district at the time the resolution purported to order the issuance of the bonds in the sum of $440,000. (7) The unauthorized acts of the board in proceeding to build the high school on the proposed site. (8) The unauthorized acts of the board in ordering the issuance of bonds in the sum of $440,000 by resolution passed more than sixty days after the election, without having again submitted the question to the electors.

All of the formal allegations of the petition were admitted by answer. The allegations relative to the illegal acts, fraud, misrepresentation, and undue influence, were denied. In addition to the admissions and denials, respondents by their answer, and as a separate defense, pleaded res judicata and alleged that all of the matters now presented by relator were settled and determined by this court in the Fisher Case, supra.

It would appear that relator really presents but two questions: (1) Whether there was fraud and misrepresentation on the part of the respondents to void the election of February 3, 1934; and (2) whether or not the acts of the board in passing the resolution ordering the issuance of bonds in the sum of $800,000, and the later resolution of August 9, 1935, ordering the issuance of bonds in the sum of $440,000, "were ultra vires the jurisdiction of respondents, and unlawful and void."

It will be noted that the former suit was in the name of the state of Montana on behalf of a taxpayer. The same condition exists here. The respondents also assert that all matters now before this court were presented, considered, and decided in the former action. Relator argues that this is not true.

The rule of law involved with relation to the doctrine of res judicata is well stated in the case of Alfrey v Colbert, 44 Okl. 246, 144 P. 179, in the first paragraph of the syllabus, as follows: "In order to constitute a good plea of res judicata, the following elements should be apparent: First, the parties or their privies must be the same; second, the subject-matter of the action must be the same; third, the issues must be the same, and must relate to the same subject-matter; fourth, the capacities of the persons must be the same in reference to the subject-matter and to the issues between them--and where these elements are clearly apparent, the plea should be sustained." See,...