Civil No. 1440 | Ariz. | Mar 1, 1915
The parties have stipulated that the record consists of the complaint, answer, judgment, motion for new trial, notice of appeal and the stipulation signed by the attorneys for the respective parties and approved by the trial judge. The stipulation contains this provision:
“It is further stipulated and agreed that the only question or issue submitted for the consideration and decision of the supreme court in this appeal is whether or not the mass meeting held by the electors of Nogales School District No. 1, Santa Cruz County, Arizona, on the 25th day of May, 1912, was or was not a compliance with law; and, if not a compliance with law, did the subsequent acts of the board of trustees of Nogales school district cure such omission or defect, and render the bond issue valid.”
Counsel have filed no briefs in the case, nor formally assigned errors, and the court has received no assistance from that source. The above stipulation seems to have been treated by the parties as embodying the whole question, and as a sufficient assignment of errors. Without some attempt on the part of counsel to observe the rules of practice established in
The complaint sets forth as grounds for action that no election of the qualified school electors of the district had been held for the purpose of locating the high school in the district prior to the time when the bonds were ordered issued ana sold. The complaint admits that a majority of the qualified school electors of the district had voted to establish and maintain a high school in the district but contends that the election to locate the high school in the district prior to the issuance of the bonds was necessary and a condition precedent to the lawful issuance of any bonds of the district, ‘ ‘ and that on account of the failure to hold the said election for the purpose of locating the high school the said $60,000 bond issue is unauthorized by law, illegal, and void.” The judgment is that the bonds are unauthorized and void, following a finding “that an election to select a location for the high school, was necessary, and a condition precedent to the lawful issue of any bonds of said district.”
The statutes in force authorizing the issuance of bonds of a high school district are paragraphs 2780, 2736, 2737 and 2738, Civil Code of 1913. Paragraph 2780 provides that high school districts may vote bonds “for the same purpose and in the same manner as common school districts.” Paragraph 2736 provides that:
“The board of trustees of any school district may, whenever in their judgment it is advisable, and must, upon petition of fifteen per cent of the school electors, as shown by the poll list at the last preceding annual school election, residing in the district, call an election for the following purposes: . . . (4) To decide whether the bonds of the district shall be issued and sold for the purpose of raising money for purchasing or leasing school lots, for building schoolhouses, and supplying same with furniture and apparatus, and improving grounds, or for the purpose of liquidating any indebtedness already incurred for such purposes. ...”
“On the seventh day after said election, at 1:00 o’clock P. M., the returns having been made to the board of trustees, the board must meet and canvass said returns; if it appear that a majority of the votes east at said election were in favor of issuing such bonds, then the board shall cause an entry of that fact to be made upon its minutes and shall certify to the board of supervisors of the county all the proceedings had in the premises, and thereupon said board of supervisors shall be and they are hereby authorized and directed to issue the bonds of such district, to the number and amount provided in such proceedings, payable out of the building fund of such district,- naming the same, and the money shall be raised by taxation upon the taxable property in said district for the redemption of said bonds and the payment of the interest thereon: Provided, that no school district shall issue bonds for the purposes herein specified to an amount in the aggregate, including the existing indebtedness, exceeding six per cent on the value of the taxable property within such school district, to be ascertained by the last assessment of state and county taxes previous to the issuing of such bonds.”
We find no provision of the law requiring as a condition precedent to the issuance of the bonds of a school district for the purpose of raising money with which to purchase a high school site or lots and to erect a school building thereon, and supply the same with necessary furniture and apparatus, and improve the grounds, the holding of an election to locate the school building. No such requirement exists. Such election is unnecessary to the authorization of the issue of bonds of the district for the purposes mentioned.
Appellee in his complaint makes no contention of other omission to follow the law, and as the officers are public officers we must presume for the purposes of this case that they performed their duty. They are not required to call or hold an election for the purpose of locating the high school within 15 days after a majority of the qualified school electors of the district voted to establish and maintain a high school, before
As the record stands, the judgment of the court is based upon an erroneous proposition of law, embodying no cause of action, and discloses fundamental error. The judgment is reversed and the cause remanded, with instructions to permit the plaintiff to amend his complaint, if desired, so as to set forth a cause of action and take such further proceeding as the law requires.
Reversed and remanded.
ROSS, C. J., and FRANKLIN, J., concur.