116 Kan. 40 | Kan. | 1924
The opinion of the court was delivered by
This was an action by school district number, 38 to enjoin rural high school district number 6 from exercising any authority or jurisdiction over the plaintiff. The court sustained the demurrer to plaintiff’s petition and defendants appeal.
The petition alleged that school district number 38 was a lawfully organized district, and for the last four years had maintained a high school in addition to its common school courses, -and that its high school had been duly authorized and accredited by the state board of education. It is alleged that rural high school district number 6 has recently been organized, comprising thirteen or fourteen school districts including the plaintiff district, and is attempting to include and exercise jurisdiction over school district number 38. It is averred that a large majority of the electors of school district number 38 protested against the inclusion of that district within the limits of the rural high school district, and when the
There is an allegation that school district number 38 voted bonds in 1920 for the purpose of erecting buildings which were sold and are outstanding obligations of the district, and that from the proceeds of the bonds erected a large commodious high school and common school building sufficient in capacity to care for the high school and common school needs of the district for the next ten years, and has expended several thousand dollars in high school equipment which will be a great loss to the district if it is superseded by and included in the rural high school district.
It is further alleged that the rural high school, after its organization voted bonds in the sum of $150,000 upon the district, which will impose unjust and unnecessary burdens of taxation on school district number 38. It is further averred that a legal enumeration of the legal electors of the rural high school district had not been made; that the petition presented to the county commissioners of Johnson county for an election to establish the rural high school district did not properly describe the territory and give the boundaries of the district; that the notices did not set forth a true description of the territory comprising the district; that the petition did not state that the boundaries had been approved by the county superintendent and the county commissioners as the law requires; that the election notices were not posted by anyone having authority to post them, and that improper influences were used upon the voters to secure votes in favor of the organization of the rural high school district.
There is also an allegation that the organization of this high school district, including the plaintiff, will operate as a great and irreparable injury to plaintiff, and that plaintiff has no adequate remedy at law and is therefore entitled to an injunction to prevent defendant from exercising or attempting to exercise authority over the plaintiff as a part of the rural high school district.
The plaintiff discusses in an interesting way the question that an ordinary school district and a rural school district are separate entities each authorized to maintain an accredited high school, and that two such entities carrying on the same work cannot exist within the same territory. The legislature has control of school districts and has provided for the organization of rural high school
The action being an attack on the validity of the rural high school district, the defendants challenge the right of the plaintiff to maintain it. It has been settled by a long line of decisions that the existence or validity of such an organization can only be questioned or attacked in an action brought by the state and prosecuted by the attorney-general or county attorney. (A..T. & S. F. Rld. Co. v. Wilson, 33 Kan. 223, 6 Pac. 281; Baelmear v. Hildebrand, 107 Kan. 419, 191 Pac. 263; Oil & Gas Co. v. Board of Education, 112 Kan. 737, 212 Pac. 900; Miller v. Barnard, 113 Kan. 631, 215 Pac. 1113; Elting v. Clouston, 114 Kan. 85, 217 Pac. 295, and other cases therein cited.) While a school district is a public organization with authority to sue and be sued, it has not been vested with authority to challenge the validity of another public municipality or corporation. That function is vested in the state to be prose
“The state has provided its own officials, an attorney-general and a county attorney, to challenge the validity of corporate or quasi-corporate organizations in this state like cities, counties, townships, and school districts; and ordinarily it is no justiciable concern of private individuals that these public subdivisions and organizations of the state may have some infirmity in their organization.” (p. 422.)
A law exists under which a rural school district could have been legally organized, an organization has been effected and while there may have been irregularities or illegal steps taken in its organization, it exists under color of law, is unchallenged by the state, and therefore not open to collateral attack, even if there be a constitutional defect in the act under which it was organized. (Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 417; Horner v. City of Atchison, 93 Kan. 557, 144 Pac. 1010.) Plaintiff says that whatever authority the rural school district may have had as to its territory other than that included in district number 38, it has no authority over the plaintiff, and therefore plaintiff has a right to question the validity of the inclusion. The boundaries of the defendant as fixed do include the territory of the plaintiff, and an attack on the boundaries or a challenge of the jurisdiction of defendant over the territory of the district involves the integrity of the district, and that can only be litigated in a direct proceeding brought in behalf of the state by its proper officers. (Topeka v. Dwyer, supra.)
The judgment of the district court holding that the plaintiff is not entitled to maintain the action must be affirmed.