18 N.H. 268 | Superior Court of New Hampshire | 1846
It may not be necessary to decide how far an act of the legislature is an estoppel against denying the legal existence of the quasi-corporate body named as
It was held, in School District v. Aldrich, 13 N. H. Rep. 139, that upon the trial of an issue upon the legal existence of the plaintiff, it was necessary to show that it had been created by the town in the only manner in which towns have the power by the statute to create a school district; that is, by a territorial division of the town by metes and bounds, or by distinct monuments, indicating the location of divisional lines. The capacity to sue in that case was confessedly derived from the exercise of the power of the town, and it was very apparent that the power had not been legally exercised.
In the case before us, if the question were whether such a legal entity as district No. 5, in Rumney, existed, having the ordinary powers pertaining to a school district, the creation of it would have to be established by competent proof of the due exercise of the power of the town creating it, or by proof of some other legal agency. And it may well be conceded that such proof is not furnished by this case. The report of the committee entrusted with the duty of dividing the “Morse district,” in 1824, was not sufficient to establish the district, without the act of the town confirming their doings.
But there was evidence that since that time district No. 5 had existed within the limits mentioned in the report. The meaning of which is that the territory described in that report, as composing one of the districts into which the Morse district was divided, had been, since the division, known as district No. 5. This is all that is required to render the meaning and intent of the act of the general court apparent. It shows what they intended to incorporate with the district No. 7, in Wentworth, and
Enough therefore appears to show what was comprehended in the union district, as created by the legislature, whether it was really necessary or not, to go so far for the purpose of determining whether the act of the general court, purporting and assuming to create a body politic, had actually taken effect as intended. The plaintiffs’ existence must, therefore, be admitted.
Towns have by law a general power and duty to divide their territories into school districts, and may from time to time alter the divisions that have been made. Revised Statutes, chapter 69. But this power, delegated by law, the legislature, which is supreme on such subjects, may, for good cause, resume; and, at the instance of the parties whose interests in the matter have appeared to bo most immediately concerned, the legislature has, from time to time and on various occasions, exercised.
Where circumstances have appeared to demand it, the legislature has created school districts by incorporating into one, parcels of the territory of adjoining towns. This is the present case. .This, it must be assumed, they have done upon mature consideration of the wants and interests of the parties interested, and in furtherance of the general purposes for which school districts have been authorized and made.
When a law for such a purpose has been duly enacted it cannot be repealed except by the enacting power. It may expire by its own terms, limiting its existence or operation to a definite period, or to the happening of some contingency expressed in those terms, or fairly to be implied by them. It is said the act creating the union district is subject to be modified by the towns, or either of
The portion of territory so marked off is as completely severed from the town, so far as regards the exertion of the districting power of the town, as if it had been, for all purposes whatever, severed from it and united to another, or incorported into a new one. The town from which it is so severed cannot fesume it by a fresh exertion of its power of making districts. We cannot presume that the legislature intended otherwise. It would be contrary to general principles and to ordinary procedure, for the legislature to enact a law to depend, for its continued existence, upon the act of a town, or to leave it for a town to repeal at its own will.
But in such a case as the present there would be a peculiar unfitness in permitting one of the towns to defeat an act of the general court. Not only the part of the new district which is within the limits of Bumney, but the 7th district of Wentworth, with its inhabitants, have an interest in the integrity of the new body politic, and in the preservation of the provision which the legislature has made. It would be difficult to hold, upon any view
If the town of Rumney had the power to take away any of the territory embraced in the union district, in the exercise of its general power of regulating the school districts within its limits, it could take away all that should fall within those limits. "We think there is no room for entertaining a serious doubt on this point in the case.
The verdict does not require to be amended. It appears that the money apportioned to twelve scholars residing within that part of No. 5 which the town undertook to sever and annex to No. 4, was withheld by the defendants. It also appears that in the enumeration that was made of the scholars residing in the remainder of No. 5, there •was an acknowledged error of one. The plaintiffs are entitled, therefore, to recover the money apportioned to thirteen scholars, entitled by the vote of the town, by reason of having attended school four weeks, to be estimated in settling the share to be assigned to the district. There must, therefore, be
Judgment on the verdict.
