211 P. 529 | Idaho | 1922
This is an action to enjoin the issuance of bonds and the levy of taxes by respondent district. The cause was tried to the court without a jury. The court made certain findings of fact and conclusions of law, and entered judgment in favor of respondent, from which this appeal is taken.
The court found that appellant lives in Owyhee county, within the boundaries of respondent district, and owns land and other property therein, subject to taxation; that he is an elector, qualified to vote at any election hereinafter mentioned; that respondents Case, Andrus, McCabe, Swan, Gjording and Robertson are, and since August, 1917, they and their predecessors in office have been, the trustees of respondent district ;■ that said district lies partly within Elmore county and partly in Owyhee county; that the territory now comprised in respondent district was duly organized in 1915 as a joint common school district, designated as joint school district No. 26-J, and duly and legally functioned as such until the summer of 1917; that during June and July, 1917, a petition was circulated throughout said district and was signed by more than one-fifth of those within said district who were qualified to vote at school elec
The board of trustees met and organized as such on September 26, 1917, since which time they and their successors have continued to function in all respects as, and to exercise all the rights of, a board of trustees of an independent school district, and through them the district has entered into contracts, employed principals, assistants and other teachers, levied taxes, handled school funds, issued warrants, defrayed expenses and paid bills, in all respects as a duly, regularly and legally organized joint independent school district. Each year since its organization, respondent district has made an annual levy for school purposes as an independent school district and has certified each of said levies to the board of county commissioners of both Elmore and Owyhee counties, both of which boards in every instance accepted such levies and incorporated the same in the general levies fixed by them. The taxes for each year, in each county, were figured and collected on the basis of levies certified by the trustees of said district, upon all taxable property situated in the portion of said district located in each county, and the tax money produced thereby was regularly remitted to the district. The board of county commissioners, auditor, assessor, tax collector, treasurer and superintendent of public instruction in both counties, as well as the state board of education, have at all times since its organization treated and recognized respondent district as a duly, regularly and legally organized independent school district and the residents and property owners within the boundaries of the district have at all times acquiesced in the acts of the trustees and have not questioned the capacity of said independent school district to act as such prior to the commencement of this suit.
On July 18, 1919, the board of trustees passed a resolution calling an election for the purpose of determining whether the district should issue bonds in the sum of $26,000, for the purpose of providing and improving school
In its conclusions of law, the court found that respondent district is a valid, legally existing joint independent school district; that the trustees above named are the duly elected, qualified and acting board of trustees of said district; that the bond issues above mentioned were duly and regularly authorized and made; that the taxes levied by the board of trustees were duly and regularly made and of full force and effect; that appellant is not entitled to the relief prayed for in his complaint, and the complaint should be dismissed.
Appellant assigns as error each of the conclusions of law made by the court, that the court erred in adjudging that respondent district is a duly and legally existing joint independent school district, that the trustees above named are the duly elected, qualified and acting board of trustees of said district, and in dismissing appellant’s complaint. There are two questions presented by appellant’s assignments of error, first, whether respondent district was properly organized, and second, whether it is a corporation de facto if not de jure.
C. S., sec. 872, provides, “A joint independent school district .... may be formed from territory .... belonging to two or more contiguous counties. For the purpose of organizing such joint districts the same preliminary steps must be taken, and the same course pursued as in the organization of like districts lying wholly within the boundaries of a single county.....The proceedings for its formation shall be had in each county or district interested: Provided, That the school census, the record of attendance at school, the assessing of property, the collection of taxes, and all acts, which, from their nature, shall be separately 'kept, shall be kept and- done, and the report thereof made
The proceedings for the formation of an independent school district lying wholly within the boundaries of a single county are set forth in C. S., sec. 834, and were substantially followed by respondent district under the auspices of the board of county commissioners of Elmore county. The statute (sec. 872, supra) provides that the same preliminary steps must be taken, and the same course pursued in the organization of joint districts a,s in the organization of districts lying wholly within one county, and this implies that a petition shall be filed with the board of county commissioners, an election held pursuant to notice, and an order made declaring the district organized, designating it by name and number, and appointing trustees. The law does not contemplate a duplication of the.steps necessary to create a joint district within each county, the result of which could only be a separate organization in each county, and no single organization having control over the entire joint district.
In other words, the law is designed to admit of the creation of a joint independent school district, and this salutary end is not achieved by separate organization in each county within which territory sought to be included in such joint district is located. It must also be borne in mind that the territory now comprised in respondent district had been previously organized as a joint common school district, and that this is not a case where two separate but contiguous districts in adjoining counties are seeking to become consolidated. The former joint common school district sought merely a reorganization as an independent school district, and if the provision in C. S., sec. 872, to the effect that “the proceedings shall be had in each county or district interested” means anything, it is that where a common school district already exists proceedings may be had in that district and not necessarily in each county within which a portion of the district may lie.
We conclude, therefore, that the court did not err in its finding that respondent district is a valid, legally existing joint independent school district. Nevertheless, we will consider the second proposition, as to whether respondent district is a corporation de facto although not de jure, the existence of which is not subject to collateral attack.
It is undisputed that the electors of respondent district made a bona fide effort to organize a joint independent district, under a law authorizing such organization, and that the district has claimed and exercised the rights, privileges and powers of a de jure independent school district, both in Elmore and Owyhee counties.
In Nelson v. Consolidated Independent School Dist., 181 Iowa, 424, 164 N. W. 874, at 876, it is said:
“A school district is, under our statutes, a public corporation, and as all parties, in undertaking to organize the district in controversy, and in selecting officers thereof, acted in good faith, the Consolidated Independent District of Troy Mills is a 'de facto corporation. To constitute a*381 corporation de facto three things are necessary: (1) Some law under which a corporation with powers assumed may lawfully have been created: (2) a colorable and bona fide attempt to perfect an organization under such a law; and (3) user of the rights claimed to have been conferred by the law — that is, of the corporate franchise. (Tulare Irr. Dist. v. Shepard, 185 U. S. 1, 22 Sup. Ct. 531, 46 L. ed. 773; Pierce v. Town of Lutesville, 25 Mo. App. 317; Evans v. Anderson, 132 Minn. 59, 155 N. W. 1040.) ....
“To permit the existence of public corporations to depend on private litigation would be inimical to the welfare of the community. Experience has demonstrated that irregularities of more or less importance are to be found in the organization of nearly every incorporated body. Technical accuracy is not to be expected. The legal existence of a public corporation cannot be questioned without causing disturbance more or less serious, and if the regularity of its organization can be kept open to inquiry indefinitely, no one can ever be sure that any of the taxes levied to meet its expenses or the contracts necessarily entered into by it would be valid and enforceable. The transaction of public business might be blocked by , private litigation commenced at the will or whim of any citizen. While there has been an honest effort to comply with the law in the organization of a corporation, as a school district, and the officers selected proceed to execute the powers thereof, every presumption should be, and is, in favor of the regularity of such organization, and it is to be regarded as valid, save when assailed by the state on information in the nature of quo ivarranto.”
The requisites of a de facto municipal corporation are: a charter or general law under which such a corporation as it purports to be might lawfully be organized, an attempt to organize thereunder, and actual user of the corporate franchise. (Coe v. City of Los Angeles et al., 42 Cal. App. 479, 183 Pac. 822; Town of Constitution v. Chestnut Hill Cemetery Assn., 136 Ga. 778, 71 S. E. 1037; City of Salem ex rel. Roney v. Young, 142 Mo. App. 160, 125 S. W. 857; Lang v. City of Bayonne, 74 N. J. L. 455, 122 Am. St. 391,
Moreover, the rule is well established that when the creation of a public corporation, municipal or qwsi-municipal, is authorized by statute, and a corporation has been organized uhder the color of such authority, its corporate existence cannot be inquired into by the courts in a collateral proceeding. The validity of the incorporation can be determined only in a suit brought for that purpose in the name of the state or by some individual under the authority of the state who has a special interest which is affected by the existence of the corporation. (People v. Ellis, 253 Ill. 369, Ann. Cas. 1913A, 589, and note at 592, 97 N. E. 697.)
In Dillon on Municipal Corporations, 5th ed., sec. 67, the learned author says: “Where a reputed corporation is acting under forms of law, unchallenged by the state, neither the nature nor the extent of any illegality in the organization can affect the existence of the reputed organization. ’ ’
It was held in Board of Education v. Berry, 62 W. Va. 433, 125 Am. St. 975, 59 S. E. 169, that where a municipal corporation exists de facto, it may exercise the powers assumed, and the question of its having a right to exercise them can be raised only by the state. (See, also, Coe v. City of Los Angeles, supra; City of Albuquerque v. Water Supply Co., supra; and Vanover v. Dunlap, 172 Ky. 679, 189 S. W. 915.) In the latter case, the proceedings neces
In People v. Bowman, 247 Ill. 276, 93 N. E. 244, it was held that: “The regularity of the organization of a municipal corporation cannot be questioned in proceedings to collect taxes levied by the corporation, though the objection goes to the jurisdiction of the tribunal through whose agency the organization is effected.”
There seems to be a general unanimity among the courts upon the proposition that where the existence of a municipal corporation is not questioned by the state, it cannot be brought in issue by a private individual in a collateral proceeding. (State v. Several Parcels of Land, 78 Neb. 703, 111 N. W. 601; Id., 80 Neb. 11, 113 N. W. 810; Stout v. St. Louis, I. M. & S. R. Co., 142 Mo. App. 1, 125 S. W. 230; Wright v. Phelps, 89 Vt. 107, 94 Atl. 294; Village of Catlin v. Tilton, supra; Merrell v. City of St. Petersburg, 74 Fla. 194, 76 So. 699; Hamilton v. San Diego at al., 108 Cal. 273, 41 Pac. 305; Fractional Dist. No. 1 v. Joint Board etc., 27 Mich. 3; Stuart v. School Dist., 30 Mich. 74; State v. Leatherman, 38 Ark. 81.) And this court has here-' tofore recognized the existence of de facto private corporations (Fairview Investment Co. v. Lamberson, 25 Ida. 72, 136 Pac. 606; Henry Gold Min. Co. v. Henry, 25 Ida. 333, 137 Pac. 523), as well as de facto municipal corporations. (Pickett v. Board of Commrs., supra; People v. Alturas County, 6 Ida. 418, 55 Pac. 1067, 44 L. R. A. 122.)
It is apparent, therefore, that respondent district is at least a corporation de facto, and that the regularity of its organization cannot be questioned in this proceeding, nor in any proceeding after a period of six months from the date of the entry of the order establishing such district. (C. S., sec. 839; Ditzel v. Evergreen Highway Dist., 32 Ida. 692, 187 Pac. 269.)