State v. Dowling

• Decision Date: 10 January 1925
• Docket Number: 25,608
• Citation: 117 Kan. 493,232 P. 615
• Parties: THE STATE OF KANSAS, ex rel., etc., Appellee, v. W. R. DOWLING et al., Appellants
• Court: Kansas Supreme Court

232 P. 615

117 Kan. 493

THE STATE OF KANSAS, ex rel., etc., Appellee, v. W. R. DOWLING et al., Appellants

No. 25,608

Supreme Court of Kansas

January 10, 1925

Decided January, 1925

Appeal from Decatur district court; WILLARD SIMMONS, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. QUO WARRANTO--Validity of Organization of Joint Rural High-school District--No Infirmity in the District Organization. In an action in quo warranto to determine the validity of the organization of a joint rural highschool district, the record examined, and held, that no infirmity in the district organization was established and that the defendant district officials were entitled to judgment.

2. SAME--Conclusiveness of Official Acts--When Performed in Good Faith Not Subject to Review. Where the statute confers authority on a board of county commissioners to call an election on the proposition to establish a joint rural high-school district, upon the presentation of a petition signed by two-fifths of the electors of the territory concerned, and upon an enumeration of the electors of such territory taken by a resident elector and certified to the county board by his affidavit, the county board has jurisdiction to determine the sufficiency of the petition and of the enumeration; and where there is neither allegation nor proof of fraud or similar misconduct affecting the official action of the county board its determination that the petition and enumeration were sufficient is conclusive and not subject to judicial review--following The State, ex rel v. Holcomb, 95 Kan. 660, 149 P. 684.

Leigh D. Dowling, of St. Francis, and W. S. Langmade, of Oberlin, for the appellants.

A. C. T. Geiger, J. F. Peters, both of Oberlin, and L. H. Wilder, of Norton, for the appellee.

Dawson J. Dawson, J. concurring.

OPINION

DAWSON, J.:

This was an action in quo warranto challenging the validity of the organization of joint rural high-school district No. 4, Decatur and Norton counties. The district was created in the summer of 1921 and since that time it has been functioning as a legal organization. The state charged that the boundaries of the district were not clearly defined at the time it was petitioned for and that no accurate enumeration of the legal electors was taken from which it could have been clearly ascertained that two-fifths of the interested electors desired that an election for the creation of such a district should be called. Another alleged defect in the preliminary steps to create the district was that the requisite sanction of the county superintendents of Decatur and Norton counties and of the board of county commissioners of Decatur county was never given to the proposed organization.

The defendants, as members of the school district concerned, answered, justifying their assumption of official powers by pleading with pertinent details the various procedural steps by which the district was created--the presentation of a petition to the county board of Decatur county, containing the names of more than two-fifths of the electors concerned, the delimitation of the proposed district, the approval of the county superintendents and county boards of the two counties, the election and its results, showing a majority of votes favorable to the creation of the district, and the special election called thereafter, at which the defendant officers were chosen and pursuant to which they had qualified and assumed their official powers.

Trial by the court; evidence documentary and oral was introduced on behalf of plaintiff and defendants; findings by the court as follows:

"The pretended rural high school mentioned in plaintiff's petition has no legal existence, that all proceedings had toward the organization of said pretended rural high-school district are void and of no effect. That the board of county commissioners of Decatur county, Kansas, had no jurisdiction to establish said rural high-school district; that there was no enumeration as provided by law in such cases and that there is no evidence whatever and no showing that there was any approval of the boundaries of said pretended rural high-school district by the superintendent of Norton county, Kansas, as provided by law; that the allegations of plaintiff's petition are fully established and the defendants have no authority to act as officers of said pretended rural high-school district."

Judgment for the state was entered pursuant to the findings; and defendants appeal, urging various errors, which are mainly concerned with the competency and probative force of the evidence and the legal consequences flowing therefrom.

On the question whether the proposed rural high-school district had the requisite approval of the county superintendents and county boards, there was documentary evidence that the county superintendent of Decatur county approved the creation of the district on June 6, 1921, and that prior to that date, some time in May, she had given her informal approval thereto; it was also shown that the project had been the subject of correspondence and conversation between herself and the county superintendent of Norton county and that the latter had acquiesced in the proposition. The superintendent of Norton county made certain memoranda of the action of her predecessor, Miss Wyrill, who retired from office May 9, 1921, and who had approved it, but who apparently had failed to make a record of her approval. The county superintendent of Norton county, Mrs. Newbold, testified:

"Q. He [R. W. Dole] was chairman of the board of county commissioners at the time testified about? A. Yes, sir.

"Q. This notation--'Mrs. Newbold: Miss Wyrill [predecessor] approved the within rural high-school district on May 9th, 1921. Please make a record to that effect. R. W. Dole.' That is his writing on the back of this--this notation on the back? A. Yes, sir. . . .

"Q. Do you know from this record or otherwise when you wrote it? A. Yes, June 6th, 1921. . . .

"Q. Did you approve this school-district boundary in any way? A. No, I didn't have to approve it. It was already approved.

"Q. Did you make any record? A. Nothing more in the office than what I have here, what I am showing you.

"[Counsel for the state]: All you have ever had to do with this record was done on June 6th, 1921, was it? A. That is the only thing I had to do in that regard."

It was also shown that the board of county commissioners of Decatur county approved the petition on June 6, 1921, and ordered the election thereon; also that the enumeration of the territory affected had been made by one Groseclose and that such enumeration was discussed and considered by the county board, and it was shown that 301 names of electors were attached to the petition which had been presented to the county board, and that two affidavits had been filed by Groseclose, a legal elector of the district, deposing that he had made the enumeration of the legal electors and that there were 548 electors in the territory concerned. Such files and records used in the formative stages of the district organization as had been preserved were offered in evidence.

Without attempting to follow appellants' assignment of errors in detail, let us notice with care the trial court's findings of fact. Perhaps these findings would better be designated as mixed conclusions of fact and of law. But such as they are, it is difficult, indeed, to find support for them in the record. Whether or not the defendant district has a legal existence depends upon the validity of the proceedings leading thereto. Now what was the matter with the proceedings? Merely that the enumerator, a rural preacher and day laborer, took the census of voters of the territory in a shabby little notebook in which he also kept his personal memoranda about his private work and labor, Chautauqua expenses, the purchase of coal, and shipments of clothing for European relief, etc. But if the little notebook is studied with patience the relevant enumeration is readily severable from the irrelevant personal contents, and there is not the slightest reason for assuming that the enumeration did not have due attention from the only tribunal which had any concern with it--the board of county commissioners of Decatur county. Since there was neither charge of fraud or similar misconduct, the ascertainment of the number of electors in the district and of the sufficiency of the petition for the calling of the election were exclusively the official concern of the county board. This court has repeatedly held that where the determination of the existence of prerequisite facts to authorize official action is vested in a local tribunal, such as a county board or a mayor and city council, its determination is conclusive and is not subject to review except in cases of fraud or similar misconduct of sufficient gravity to vitiate it. (The State, ex rel., v. City of Atchison, 92 Kan. 431, 140 P. 873; The State, ex rel., v. City of Harper, 94 Kan. 478, 146 P. 1169; The State, ex rel., v. Holcomb, 95 Kan. 660, 149 P. 684; The State, ex rel., v. City of Victoria, 97 Kan. 638, 641, 156 P. 705; The State, ex rel., v. School District, 113 Kan. 441, 215 P. 453. See, also, Town of Olsburg v. Pottawatomie County, 113 Kan. 501, 215 P. 451.)

On analysis of the trial court's findings it will be noted that the infirmities in the organization of defendant district were specifically these:

(a) The board of county commissioners of Decatur county had no jurisdiction to establish the high school.

(b) There was no enumeration as provided by law.

(c) There was no evidence that the county superintendent of Norton county had approved the boundaries of the proposed district.

(d) That the allegations of plaintiff's petition are...