29 Kan. 57 | Kan. | 1882
The opinion of the court was delivered by
The defendant demurred to the plaintiff’s petition, upon the ground that it did not set forth facts sufficient to constitute a cause of action. Upon the hearing of this demurrer, the court below overruled the same, and delivered the following opinion:
“This case is heard on petition, and demurrer thereto.
“The petition shows that School District No. 58, in Barton county, Kansas, was, as a matter of fact, duly and properly organized.
“That being so organized, and after having complied with all the statutory conditions precedent, did, on the 25th day of May, 1878, execute and deliver the two certain bonds or obligations in writing, with interest coupons thereto attached, and sell the same' to the commissioners of the permanent school fund of the state of Kansas, whereby they became the property of the state of Kansas, the plaintiff in this action.
' “That the plaintiff still holds them, the same being due and unpaid.
“That because of the unconstitutionally of the law, approved March 5, 1875, attaching a portion of the county of Stafford, including this territory, to Barton county, the territory of said school district was relegated to Stafford county; and at the commencement of this suit and at the present time this territory, with its inhabitants and school property, is included in and forms a part of said School District No. 25, Stafford county, Kansas.
“The above is a sufficient statement of the case in the plaintiff’s petition to lead us to a consideration of the questions raised by the demurrer of the defendant, which are:
“1. Though, as a matter of fact, School District No. 58, Barton county, Kansas, was organized and issued its bonds*62 and sold them to the state permanent school fund of Kansas, as alleged in the plaintiff’s petition, yet, as a matter of law, no such school district ever existed, for the reason that the said act of the legislature, which took the territory forming said district from Stafford county, was, and has been held by our supreme court, unconstitutional, and that therefore the superintendent of Barton county had no power tó put in motion the machinery whereby said district was created, or to issue and sell the bonds in question, and hence what he did was absolutely void.
“2. That if School District No. 58, Barton county,, Kansas, was a school district with power to issue bonds, sell them, and bind itself by its promise to pay them, School District No. 25, Stafford county, is not liable on such bonds, because it is another and distinct corporation.
“Now, conceding the unconstitutionality of the act of the legislature taking the territory included within this district with other territory from Stafford county, and attaching it to Barton county, was School District No. 58, Barton county, Kansas, at the time it issued the bonds, the payment of which-is demanded by this suit, such a corporation as could execute and sell and deliver bonds, and bind itself by its promise to pay them?
“I think it was.
“The law making its territory a part of Barton county was approved March 5, 1875. In May, 1878, (more than three years afterward,) there being no question of the validity of such law, the superintendent of public instruction of Barton county, pursuant to the provisions of the law in such case made and provided, together with the people of the territory within the boundaries of said district, created and constituted such territory and the inhabitants thereof a school district, and numbered the same 58.
“It is conceded as a matter of fact, that every step necessary to constitute a proper school district under the laws of the state of Kansas was duly and properly taken in the creation of said District No. 58, and that afterward every step necessary for the proper and legal issue of bonds by a school district was duly and legally taken in connection with the execution, sale and delivery of the bonds by District No. 58.
“On the authority of the case of Hildreth v. McIntire, 19 American Decisions, p. 63, (1 J. J. Marshall, 206,) as well as the decisions of our own supreme court in the cases of Wildman v. Anderson, 17 Kas., pp. 344, 347, 348; Voss v. School*63 District, 18 Kas., pp. 467, 472, 473; Krutz v. Paola Town Co. 20 Kas., pp. 402, 403; and Pape v. Capitol Bank, 20 Kas. 440, 445, 1 am satisfied that the law recognizes a corporation de facto as distinguished from a corporation de jure, in the same manner and to the same extent that it recognizes an officer defacto from an officer de jure, and that the same rule that defines and distinguishes an officer defacto from an officer de jure, also defines and distinguishes a corporation de facto from a corporation de jure.
“An officer de facto is one, though not a good officer in law, who has color of appointment or an election, and whose acts therefore the law recognizes as valid.
“Applying this definition to a corporation, a corporation de facto is one, though not good in law upon an inquiry in the nature of quo warranto, yet exists by color of ^authority, the acts of which the policy of the law recognizes as binding upon it and third parties. Such a corporation must have the same de facto existence as a corporation de jure — that is, it must exist in fact, and be apparently possessed of all the powers of a corporation de jure, and must exist in good faith, holding itself up before the public as a corporation, with full power to act as such.
“School District No. 58 was duly and properly organized. It had an actual de facto existence, and for a long time held itself up before the public as such, and in good faith claimed to be a proper corporation, and so dealt with the public, (including this plaintiff,) issued its bonds, sold them, and with the proceeds built within its boundaries a school house, organized and ran a school therein, and as such school district obtained its share of the state school fund, and used the same in like manner as de jure school districts. If all these things did not make School District No. 58 a corporation de facto, then it is difficult to understand what would. But the defendant claims that the color of authority to act, or the corporate existence, must flow from a constitutional law, and that the action of the superintendent of Barton county and the inhabitants of said District 58, Barton county, was under a void law, and therefore void. It is true that the law of 1875, attaching a portion of the territory of Stafford county to Barton, was void ; but such law did not authorize the creation of a-school district. The action of the superintendent of Barton county and the inhabitants included within the boundaries of District No. 58, of Barton county, in creating said District No. 58 out of a portion of such attached terri*64 tory, was authorized by another and valid law of the state. But the position taken by the defendant, so far as it relates to the necessity that the authority to act be under a constitutional law, is not the true one. I think the weight of authority on this subject supports the position that the acts of one who claims to be the officer he assumes to be, and has color of an appointment, or an election under a legislative act 'having all the forms of law, until such act is adjudged unconstitutional in the courts, are valid and binding upón the officer and third parties; and the same rule applies to corporations. (Ex parte Strang, 21 Ohio St. 610; Laver v. McGlachlin, 28 Wis. 364, 365, 366; Brown v. O’Connell, 4 Am. Rep. 89; same case, 36 Conn. 432.)
“ In this latter case, the legislative authority of the state of Connecticut attempted to give authority to the city council of •the city of. Hartford to appoint a police judge. The city exercised such delegated authority and appointed a police judge, who for a time served as such. Afterward the law conferring such authority was adjudged unconstitutional, and the appointments under its provision void; and yet the acts of the judge while acting as such were held by the court of last resort of said state to be-valid, and the judge an officer de facto. So in this case, the law attaching the territory of Stafford county, including the territory of District 58, Barton county, to Barton county jurisdiction of such territory for school-district purposes; and the district created by him, and .the inhabitants thereof within such territory, existed at least by color of authority emanating from the law-making power of the state. (See case of State v. Carroll, 9 Am. Rep., pp. 428, 429, 430, 431, 432, 433, 434; same case, 38 Conn. 449.)
“ So, in like manner, a corporation created pursuant to and acting under such a law, is a corporation de facto. It may be a question whether, when after the law of 1875 was adjudged unconstitutional, and Stafford county was held to exist, with its territory, the same as immediately before the passage of said act, and said county of Stafford was temporarily organized, and the county superintendent of said county recognized School District No. 58, created while such territory was a part of Barton county, by taking a census of the pupils of school age therein, reporting the same; and obtaining from the state school fund the apportionment of such fund for said district, such district did not thereby ripen into a corporation de jure. But it certainly became a corporation de facto, with*65 power to issue and sell its bonds, and bind itself by its promise to pay them.
“Such being the case, was the liability of said District 58, Barton county, transferred to the defendant, District No. 25, Stafford county? I think it was.
“The defendant district succeeded to all the rights and property of said District 58, including all its territory, inhabitants, school property, and power of taxation, and by reason thereof assumed the indebtedness of the extinguished corporation, District 58, the successor of which it became. The supreme court of the United States, in the case of Mount Pleasant v. Beckwith, 100 U. S. 514, has so decided.
“It may properly be said that this is not a case where a non-resident corporation went into a jurisdiction and induced the inhabitants thereof to vote bonds for the benefit of such foreign corporation, but one in which the inhabitants of the jurisdiction on their own motion voted bonds for their own benefit to build a school house in which to educate their own children, and who then went abroad with their bonds, and. induced others to purchase them. For this reason, together with the fact that all the property of District 58 is now in the possession of the defendant district, the equities of this case are with the plaintiff, and the plaintiff has a right to recover. The petition therefore states a sufficient cause of action.
“The demurrer is overruled, and judgment entered for the plaintiff for the sum of $245.33, to bear interest at 10 per cent, from the 5th day of January, 1882.”
This ruling of the court below overruling the defendant’s demurrer is the only ground upon which the defendant, plaintiff below, bases its petition in error, and the only ground upon which it seeks a reversal of the judgment of the court below. The defendant, plaintiff' in error, claims that School District No. 58 never was a school district either de jure or de facto, and consequently that the court below erred in holding that such district was a school district de facto, and in holding that the defendant was liable on the bonds in controversy, as the successor of such School District No. 58. Was the ruling of the court below erroneous? It would be very unfortunate for the interests of justice if such were really the case. Here we have an act of the legislature, plain and explicit in all its
This district was everywhere recognized [and acknowledged to be a legal and valid district. It was not only so recognized and acknowledged by its own inhabitants and by its
There can be no doubt that when the inhabitants of this territory petitioned to be constituted a school district, they did it in the best o'f faith; without the slightest intent to commit a fraud; without any purpose to repudiate any indebtedness which they might create, and in fact innocent of the slightest belief on their part that they might repudiate such indebtedness by reason of the unconstitutionality of the act of the legislature which made them residents of Barton county. There can be as little doubt that the county superintendent believed, when he issued the order creating this school district, that he was acting within the scope of his authority, and was proceeding in strict compliance with his official duty. Neither can it be supposed that the school-fund commissioners, when they purchased these bonds, believed otherwise than that they were dealing with a legal and valid school district, possessing all the lawful rights, all the powers, privileges and immunities possessed by other school. districts of the state. There was nothing, in fact, to put' them upon inquiry as to the defective character of this organization, because, although in furtherance of justice the courts uphold the maxim that “ ignorance of law excuses no one,” it is nevertheless true that the unconstitutionality of legislative acts, until they are attacked directly, is often so latent and obscure as not to be discoverable, even by courts of justice, in any casual examination of such acts. In this instance the element of unconstitutionality was entirely outside of the act itself, hidden and obscure, and could only be discovered by ascertaining the actual area within the diminished boundaries of Stafford county. And the fact that the jurisdiction and power of Barton county, over this attached territory, were exercised without question ■ for years, would
The plaintiff in error, defendant below, claims that School District No. 58 could not have been a de fado organization, or school district, because, as it claims, there was no law in ■existence under which it could have been organized, or could have a legal and valid existence. This we thin'k is a mistake. It was organized under the general laws of the state authorizing the creation and organization of school districts; (Laws of 1876, ch. 122, art. 3; Comp. Laws of 1879, p. 824, et seq.;) and every act that was done or performed with reference to the organization of this school district, was done and performed under valid and existing laws. The school district was not organized under the act changing the boundaries of Stafford and Barton counties, for that act made no provision for the organization or creation of school districts. That act said nothing with reference to school districts. But the school district was really and in fact organized and created under said chapter 122, art. 3, of the Laws of 1876, and the bonds were voted and issued under valid and existing laws, and the school-fund commissioners purchased the same under valid and existing laws.
It has been suggested, however, that the most difficult ■question for the defendent in error (plaintiff below) to overcome, is one growing out of the fact that the territory comprising School District No. 58 was taken from the unorganized county of Stafford before the bonds were voted or issued, and was returned again to the unorganized county of Stafford after the bonds were so voted and issued; and that no statute then existed authorizing the creation or organization of school districts in unorganized counties. In other words, that the School District No. 58 was created and organized and the bonds were voted and issued, while the territory of such school district belonged, in legal contemplation, to an unorganized county, and while there was in fact no statute author
In addition to the authorities already cited, we would refer to the following authorities, cited by counsel for defendant in error: Thompson v. Abbott, 61 Mo. 176; Scaine v. Bellville, 39 N. J. L. (10 Vroom), 526; Broughton v. Pensacola, 93 U. S. 266; Town of Depere v. Town of Bellevue, 31 Wis. 120, 125; Morgan v. Beloit, 74 U. S. 613; Beloit v. Morgan, id. 619; Von Hoffman v. City of Quincy, 71 U. S. 535, 555; Mills v. Gleason, 11 Wis. 470.
The judgment of the court below will be affirmed.