Tallmadge v. Walker

• Decision Date: 07 August 1916
• Docket Number: 1915
• Citation: 159 N.W. 71,34 N.D. 590
• Court: North Dakota Supreme Court

159 N.W. 71

34 N.D. 590

CARL E. TALLMADGE, J. J. Murphy, and J. W. Stribbling v. SAM WALKER, P. F. Schmidt, Jesse Edens, Guy Griswold, and Margaret Kennedy, as Superintendent of Schools of Hettinger County, North Dakota, and J. R. Batty, as Treasurer of the County of Hettinger, State of North Dakota

No. 1915

Supreme Court of North Dakota

August 7, 1916

Appeal from the District Court, Hettinger County, W. C. Crawford, J.

From a judgment in defendants' favor, plaintiffs appeal.

Affirmed.

W. F Burnett and Thos. H. Pugh, for appellants.

Unless these proceedings can be inquired into in an action or proceeding in the nature of quo warranto, the plaintiffs are without remedy; and where this remedy is available, it has been held there is no concurrent remedy in equity, unless by statutory provision. Comp. Laws 1913, §§ 1147, 3298; 32 Cyc. 1415, 1424, 23 Am. & Eng. Enc. Law, 2d ed. 637; State ex rel. Walker v. McLean County, 11 N.D. 356 92 N.W. 385; Atlee v. Wexford County, 94 Mich. 562 54 N.W. 380; People ex rel. Saunier v. Stratton, 33 Colo. 464, 81 P. 245; Gardner v. State, 77 Kan. 742 95 P. 588; State ex rel. Anderson v. Tillamook, 62 Ore. 332, 124 P. 637, Ann. Cas. 1914C, 483; State ex rel. Brown v. Sengstacken, 61 Ore. 455, 122 P. 292, Ann. Cas. 1914B, 230; People ex rel. Kingsland v. Clark, 70 N.Y. 518; People v. Cook, 8 N.Y. 67, 59 Am. Dec. 451; People ex rel. Roeser v. Gartland, 75 Mich. 143, 42 N.W. 687; Topeka v. Dwyer, 70 Kan. 244, 78 P. 418, 3 Ann. Cas. 239; Kuhn v. Port Townsend, 12 Wash. 605, 29 L.R.A. 445, 50 Am. St. Rep. 911, 41 P. 923; State ex rel. Harmis v. Alexander, 129 Iowa 538, 105 N.W. 1021.

It is the rule that where the language in a statute is unambiguous, a departure from its natural meaning is not justified by any consideration of its consequences or of public policy. 36 Cyc. 1103, 1115.

The remedy of quo warranto is fully attainable through the medium of a civil action. Comp. Laws 1913, § 7969; State ex rel. Walker v. McLean County, 11 N.D. 356, 92 N.W. 385; Wishek v. Becker, 10 N.D. 63, 84 N.W. 590.

Boards, like county commissioners, are but the creatures of the statute, and have only such powers as are conferred by statute, and such grants of authority must be followed strictly, and such statutes strictly construed. Gleason v. Spray, 81 Cal. 217, 15 Am. St. Rep. 47, 22 P. 551; Bowen v. Minneapolis, 47 Minn. 115, 28 Am. St. Rep. 333, 49 N.W. 683; People ex rel. Reynolds v. Buffalo, 140 N.Y. 300, 37 Am. St. Rep. 563, 35 N.E. 485; Notes to Riggs v. Palmer, 12 Am. St. Rep. 826, and Rafferty v. Central Traction Co. 30 Am. St. Rep. 775; State ex rel. Grady v. Lincoln County, 18 Neb. 283, 25 N.W. 91.

The plaintiffs have legal capacity to sue. Comp. Laws 1913, § 7970; Wishek v. Becker, supra; Jenness v. Clark, 21 N.D. 155, 129 N.W. 357, Ann. Cas. 1913B, 675; Taylor v. Sullivan, 45 Minn. 309, 11 L.R.A. 272, 22 Am. St. Rep. 729, 47 N.W. 802; 15 Cyc. 403, 404; 23 Am. & Eng. Enc. Law, 2d ed. 617; Fordyce v. State, 115 Wis. 608, 92 N.W. 430.

When the right to exercise jurisdiction over territory depends upon the legality of an organization, as a municipal corporation, the individuals assuming jurisdiction are the proper defendants. 23 Am. & Eng. Enc. Law 2d ed, 623.

Jacobsen & Murray, for respondents.

An action in quo warranto must be brought by or in the name of the state. It cannot be maintained by or in the name of a person except such person has some special interest in it,--some private interest. Comp. Laws 1913, §§ 7970, 7971; Wishek v. Becker, supra; Jenness v. Clark, 21 N.D. 150, 129 N.W. 357, Ann. Cas. 1913B, 675; Red River Valley Brick Co. v. Grand Forks, 27 N.D. 8, 145 N.W. 725; State ex rel. Butler v. Callahan, 4 N.D. 481, 61 N.W. 1025; 4 Sutherland Code Pl. Pr. & Forms, §§ 7022-7024, 7039; 5 Wait, Pr. 614; State ex rel. Wah-We-Yea-Cumin v. Olson, 107 Minn. 136, 21 L.R.A. (N.S.) 685, 119 N.W. 799; Territory ex rel. Peterson v. Hauxhurst, 3 Dak. 205, 14 N.W. 432; 32 Cyc. 1443, 1444; State ex rel. Hess v. Boehringer, 16 Ariz. 48, 141 P. 126; Campbell v. Sargent, 85 Kan. 590, 118 P. 71; State ex rel. Murdock v. Ryan, 41 Utah 327, 125 P. 666; Hudson v. Conklin, 77 Kan. 764, 93 P. 585; 28 Cyc. 174; State ex rel. Doud v. Council, 106 Iowa 731, 77 N.W. 474; State ex rel. Walker v. McLean County, 11 N.D. 356, 92 N.W. 385; Atchison, T. & S. F. R. Co. v. Wilson, 33 Kan. 223, 6 P. 281; School Dist. v. Gibbs, 52 Kan. 564, 35 P. 222; State ex rel. Madderson v. Nohle, 16 N.D. 168, 125 Am. St. Rep. 628, 112 N.W. 141.

The new corporation should be made a party to the action, and in making it a party no admission as to its validity is made. State ex rel. Weinsheim v. Leischer, 117 Wis. 475, 94 N.W. 299; State ex rel. Ross v. Somerby, 42 Minn. 55, 43 N.W. 689; People ex rel. Schindler v. Flint, 64 Cal. 49, 28 P. 495; Territory ex rel. District Attorney v. Armstrong, 6 Dak. 226, 50 N.W. 832; People ex rel. Saunier v. Stratton, 33 Colo. 464, 81 P. 245.

The complaint does not contain a statement of facts sufficient to constitute a cause of action. The decision of the board of county commissioners on a petition for a change of a county seat is final, and not open to judicial investigation. State ex rel. Little v. Langlie, 5 N.D. 594, 32 L. R. A. 723, 67 N.W. 958; State ex rel. Laird v. Gang, 10 N.D. 331, 87 N.W. 5.

"A school district, when organized as provided by law, is a public corporation of a municipal character. The power to change its boundaries, as well as to define them in the first instance, is of legislative origin, and whether exercised immediately by the legislature, or by a board designated, is a legislative act." Hughes v. Ewing, 93 Cal. 414, 28 P. 1067; Greenfield School Dist. v. Hannaford Special School Dist. 20 N.D. 393, 127 N.W. 499; State ex rel. Connaughton v. Holcomb, 95 Kan. 660, 149 P. 684.

Under a proper petition, the findings of fact of the board are conclusive. Mooney v. Tulare County, 2 Cal.App. 65, 83 P. 165; People v. Linda Vista Irrig. Dist. 128 Cal. 477, 61 P. 86; People ex rel Russell v. Loyalton, 147 Cal. 774, 82 P. 622; People ex rel. Skelton v. Los Angeles, 133 Cal. 338, 65 P. 750; Greenfield School Dist. v. Hannaford Special School Dist. 20 N.D. 393, 127 N.W. 499.

"Where adjacent territory has been annexed to a city for school purposes, by its board of education, under laws authorizing the same when a majority of the electors of the territory make application therefor, it will be presumed, in the absence of proof to the contrary, that the board's finding to the effect that the application was made by a majority of the electors within the territory was based on a competent proof." Redfield School Dist. v. Redfield Independent School Dist. 14 S.D. 229, 85 N.W. 180; School Dist. v. Wolf, 78 Kan. 805, 20 L.R.A. (N.S.) 358, 98 P. 237; Comp. Laws 1913 § 1147; People ex rel. Skelton v. Los Angeles, 133 Cal. 338, 65 P. 749.

There is no charge of fraud in this case. 23 Cyc. 1221.

OPINION

FISK, Ch. J.

This is an action in the nature of quo warranto to inquire into the validity of certain proceedings whereby an alleged new school district was organized out of a portion of New England School District Number Nine of Hettinger County, and to inquire into the right of certain of the defendants to exercise the rights, duties, or franchises appertaining to the office of directors and treasurer of such pretended new district.

Defendants demurred to the complaint upon the following grounds:

"First. That the court has no jurisdiction of the person of the defendants, or the subject matter of the action.

"Second. That the plaintiffs have not legal capacity to sue.

"Third. That there is a defect of parties plaintiff and defendant.

"Fourth. That the complaint does not state facts sufficient to constitute a cause of action."

Such demurrer was sustained and judgment ordered dismissing the action, and plaintiffs appeal.

The facts alleged in the complaint, and which are necessary to an understanding of the points involved, are briefly as follows: "New England School District No. 9 was formed some years ago and has been operated as a common school district since the formation thereof continuously until July 10, 1914, when notice of an election was given within the district upon the question of consolidation of the schools of the district, which election was held July 27, 1914, at which election the majority of the electors declared in favor of consolidation, and the schools were accordingly consolidated.

School district No. 9 was composed of the village of New England and the townships of New England and Kunze, the corporate limits of the village extending into each township about equally. Plaintiffs are the duly elected, qualified, and acting directors of said school district.

On the 17th day of July, 1914, certain residents of the townships of Kunze and New England filed a petition with the county superintendent of schools, for a division of the old district No. 9 into three school districts, namely: (a) The village of New England, (b) the township of Kunze, excepting as to that part of the village lying within the boundaries of said township, and, (c) the township of New England, excepting as to that part of the village lying within its boundaries. This petition was signed by residents of the two townships, and is as follows: Exhibit A.

Petition for organizing new school districts and changing boundaries of old one. To the Board of County Commissioners and to the Superintendent of Schools, Hettinger County, North Dakota:

We, the undersigned, respectfully show that we are residents citizens, and voters of that certain school district known as the New England School District No. 9, situated in Hettinger county, North Dakota, and comprise the incorporated village of New...