Wm. N. Coler & Co. v. Dwight School Township
| Decision Date | 25 April 1893 |
| Citation | 55 N.W. 587,3 N.D. 249 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland County; Morgan, J.
Action by William N. Coler and William N. Coler, Jr., partners under the firm name and style of W. N. Coler & Co., against Dwight School Township of Richland County, on the interest coupons of certain bonds. Judgment for plaintiffs. Defendant appeals.
Modified and affirmed.
Affirmed.
W. E Purcell, for appellant.
McCumber & Bogart, for respondent.
The plaintiffs have recovered judgment upon a number of coupons representing the interest on bonds issued by an alleged municipal corporation known as School District No. 22, in Richland County, in the then Territory of Dakota. Defendant not having issued them is sought to be held liable on these bonds and their interest coupons, by virtue of Ch. 44, Laws 1883. At the threshold of the case we are met with the proposition that there is no liability because there was no such corporation as School District No. 22 in existence when these instruments were executed and delivered. It is asserted that the proceedings instituted to effect the organization of such a municipality were fatally defective. It is, in the first place, insisted that there was no petition for the erection of the district presented to and filed by the county superintendent of schools, signed by a majority of the citizens residing in the territory to be effected. Such a petition is required by the statute. Chapter 14, Laws 1879, § 10. The trial judge has found that there was such petition made, and that it was filed as required by law. This finding is challenged. We think that the evidence is sufficient to sustain it. The petition itself was not produced, but we are satisfied that there was ample evidence to warrant a finding by the trial judge that it could not be found, but had been lost or taken away by some former county superintendent, either the one with whom it was originally filed or by one of his successors. There was ample evidence to justify the trial court in holding that diligent search has been made for the paper. The court therefore properly admitted secondary evidence as to the signing and filing of the petition. This evidence sustains the finding.
It is next contended that there was a failure to comply with the provisions of the statute requiring the county superintendent to furnish the county commissioners of the county with a written description of the boundaries of the district, and declaring that such description must be filed in the office of the register of deeds before such district should be entitled to proceed with its organization by the election of school district officers. Chapter 14, Laws 1879, § 10. It is undisputed that the only attempt to comply with this requirement was by filing a paper, which in words, figures, and form is as follows:
We are clear that this does not contain a written description of the boundaries of the district. It merely purports to be a plat of the district. Whether the district is within or without the lines of the plat is left to speculation. But does it necessarily follow that the organization of the district is thereby rendered void? The county superintendent creates the district. His decision, embodied in written form, is the act which calls the new corporation into being, provided he has been given authority to proceed by the presentation and filing of the proper petition. The statute requires him to keep a record of his official acts, (§ 12,) and it is to this record that the court must look to see if the district has been formed. The record so kept by the county superintendent shows the following entry: "District No. 22, organized October 24th, 1881, and includes the following described territory: South half of sections 19, 20, 21, 22, and 23, and all of sections 26, 27, 28, 29, 30, 31, 32, 33, 34, and 35, in township 133, range 49, and one-half of section 5, in township 132, range 49, and sections 24, 25, and 36, township 133, range 50." The statute does not declare that furnishing the county commissioners with a written description of the boundaries, and the filing thereof in the office of the register of deeds, are conditions precedent to the existence of the district. Quite the contrary. The statute refers to the district as a corporation already formed before the doing of these acts. It does not withhold corporate life until the description is furnished and filed. It merely provides that the district shall not be entitled to proceed with its organization by the election of school officers before these acts are performed. The corporation exists; the district officers exist; but no election of officers can be held until after certain acts are performed. This is the plain reading of the statute. Said the court in School Directors of Union School Dist. No. 4 v. School Directors of New Union School Dist. No. 2, 135 Ill. 464, 28 N.E. 49, at page 52: "And the failure of the township trustees to file with the county a map showing the lands embraced in the new district will not have the effect to destroy its corporate existence, or to prevent the directors of a new district from levying taxes for school purposes therein;" citing School Directors of Dist. No. 5 v. School Directors of Dist. No. 10, 73 Ill. 249. A municipal corporation may have life, although there are no officers in office. No claim is made that the officers who in fact signed the bonds and coupons were not at least de facto officers of the district, provided there was a legal organization thereof. Nor could it be successfully contended that such officers were not at least de facto officers, there having been an attempt to comply with the law requiring the furnishing and filing of the description before officers should be elected, and the officers being in actual possession of their respective offices and exercising the functions thereof, and there being no other persons pretending to lay claim to such offices. Nor would we reach a different conclusion were we of opinion that the organization of the district was so defective that the proceedings would be set aside on certiorari or the right of the district to act as such would be denied by judgment in quo warranto. At the time these bonds were issued the district was acting as a de facto district under at least color of organization. It had elected its district officers; held its district meetings; had voted to borrow money to build a school house; and it appears to be undisputed that the proceeds of these bonds were used for that purpose, and the inhabitants received the benefit thereof. A school house has been built, and school has been taught therein. To allow the defense that the proceedings in the organization were defective to defeat the debt represented by these bonds would, under these circumstances be to sanction repudiation of an honest obligation. We are firm in the opinion that the legality of the organization of a municipal corporation cannot be thus collaterally attacked. Citizens of the district who are opposed to the formation of such a corporation are not without remedy. Certiorari will reach the action of the county superintendent when without jurisdiction. People v. Board of Sup'rs, 41 Mich. 647, 2 N.W. 904. The statute allows an appeal. Section 25, Ch. 14, Laws 1879. The corporate existence may be attacked by quo warranto. State v. Bradford, 32 Vt. 50; People v. Clark, 70 N.Y. 518; Cheshire v. Kelley, 116 Ill. 493, 6 N.E. 486; Comp. Laws, § 5348, Subd. 3; Territory v. Armstrong, 6 Dakota 226, 50 N.W. 832. The evils resulting from a doctrine which would permit the legality of the organization of a municipal corporation to be inquired into collaterally--in an action to enforce a debt, in a proceeding to collect a tax levied by the de facto corporation, or in a litigation over a tax title growing out of a tax imposed by such municipality--would be as great as the evils which would flow from the collateral inquiry into the title of a person to an office, the functions of which he is in fact exercising. This same argument reaches the objection that no sufficient petition was ever presented and filed, even assuming that the record sustained the claim this requirement of the statute was not complied with. It does not follow, because the organization was illegal for want of power in the county superintendent, that at all times, in every species of litigation, and by any person, the existence of the de facto district can be assailed. It is no more essential to the exercise by the county superintendent of this power that a petition should be filed than that it should be signed by a majority of the citizens residing in the district. It is the fact, and not the decision of the superintendent that the fact exists, which gives him jurisdiction. A petition is filed lacking the signature of one citizen to make it a petition signed by majority of the citizens; in all other respects the organization is regular; bonds are issued, a school house built, and school taught. Is all this to be ignored, to be treated as illegal, because there was no de jure district? Who are the real parties interested in defeating such a debt? The taxpayers within the district. In what position are those to object who participated in the organization? They have attempted to form a district. They for a time believed that they had formed it. They elect officers; borrow money on bonds for district purposes; build a school house therewith; and use...
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