126 P. 15 | Or. | 1912
delivered the opinion of the court.
The statute relating to union high schools is found in Sections 4192 to 4210, inclusive,- L. O. L. It was stipulated at the hearing that the three districts mentioned are all districts of the third class; each having less than 200 children of school age within its boundaries. To initiate a scheme for a union high school composed of districts of the third class, it is required that a petition, signed by no less than one-third of the legal voters of
“They shall prepare annually an estimate of the amount of funds necessary to carry out the purposes for which the union high school district was established, and shall notify the board of each school district of its proportion of such expense not later than thirty days before the date on which a district must report its tax levy to the county clerks. The basis for estimating the proportion of expense each district shall pay shall be the assessed valuation for the school district for the current year. School districts forming a part of a union high school district shall, not oftener than once a year, levy a sufficient tax, not to exceed ten mills on the taxable value of the respective districts, to meet the pro rata share of expense apportioned to it by the union high school board, and should any district fail to levy such tax the high school board is hereby authorized to levy such tax on such district. Should the union high school board in any high school district fail to make the estimate provided for in this section, it shall be the duty of the district boundary board to make such estimate. * * ”
By other paragraphs of the same section, when authorized by a majority vote of the legal voters present at any legally called school meeting in a union high school
“All laws governing regular school districts and officers shall apply to union high school districts and officers so far as applicable.”
Relating to regular school districts, Section 4026, L. O. L., reads thus:
“All school districts now existing or that shall be organized in pursuance of this act shall be to all intents and purposes bodies corporate, competent to transact all business coming under their jurisdiction, and sue and be sued. * * ”
Taking all these statutory provisions together, it is manifest that, for all the purposes of the statutes quoted, a union high school district is a body corporate. The plaintiffs argue that it is impossible for two corporations with like purposes to exist in the same territory. This principle, sound as it may be, does not apply to the present contention. The high school is not concerned with the primary branches of education taught in the common schools. Its field of activity is enlarged and different in scope from that of the ordinary districts. With the design of promoting advanced education, the legislative power has provided for an organization upon which it has conferred the characteristics of the ordinary body corporate engaged in similar undertakings. The two classes of districts complement one another, but do not conflict in their organization. In that they are all branches of the government, we might as well say that
“A corporation de jure is said to be one whose right to exercise a corporate function would prove invulnerable if assailed by the State in a quo warranto proceeding. * * A corporation de facto exists when there is (1) a charter or statute under which a corporation with the powers assumed might have been organized; (2) a bona fide attempt to organize a corporation under such a charter or statute; (3) an actual user of the corporate powers, or some of them, which might have been rightfully used by such an organization. Such being the proper conception of a corporation de facto, it follows that a substantial compliance with the law in effecting*570 a corporate organization is not necessary to constitute the body a corporation de facto, because that makes it a corporation de jure.”
In addition to what has already been said, we learn from the testimony that the high school was in actual operation for a term of eight months in the high school district in question under charge of the board of directors, upon whom this duty was cast by operation of law, as we have already seen. Thus are present all the elements laid down in the rule by Judge Thompson constituting a de facto corporation.
In Umatilla Water Users’ Association v. Irvin, 56 Or. 414 (108 Pac. 1016), this court, speaking through Justice McBride, says: “In order to secure the peaceful and orderly government of the community, the rule has been established that the right of a de facto public officer to exercise the powers of his office cannot be investigated in a collateral proceeding. It must be determined once for all time in a direct proceeding to oust the officer.”
In Hamilton v. San Diego County, 108 Cal. 273 (41 Pac. 305), it is stated: “Where a board of supervisors, believing that certain territory within the limits of a city is outside of such limits, forms a school district out of the same, and the trustees appointed exercise the powers of school trustees, and taxes are levied for the district, and on an election, by voters of the' district, bonds are issued to buy land and build a schoolhouse, one who paid taxes so levied cannot recover the same out of funds in the hands of the county treasurer to the credit of the district, on the ground that the board of supervisors had no authority to organize the district, as the district had at least a de facto existence.”
The following authorities illustrate the principle that, unless challenged by a direct proceeding, the acts of a
The precedents cited by the plaintiffs in support of their contention are, almost without exception, either quo warranto cases or in certiorari to review the attempted formation of the corporation involved. These are both direct attacks upon the validity of the organization, while the present litigation is clearly a collateral onslaught. They also cite a few cases where the attempt was made to set up a corporation under a plainly unconstitutional statute, and it was held that the proceeding was void on its face, and hence open to collateral attack. Here, however, the statute is not assailed on constitutional grounds or oherwise, so that the latter mentioned citations are not controlling in the present instance.
Section 366, L. O. L., provides that “an action at law may be maintained in the name of the State upon the information of the prosecuting attorney or upon the relation of a private party against a person offending, in the following cases: (1). When any person shall usurp, intrude into or unlawfully hold or exercise any public office, civil or military, or any franchise within this State, or any office in a corporation, either public or private, created or formed by or under the authority of this State, or * * (3) When any association or number of persons act within this State as a corporation without being duly incorporated.”
Without any showing of an attempt to commence an action, or that the district attorney has refused to countenance such a proceeding, we cannot justify the plaintiffs in ignoring this remedy at law and seeking the aid of government by injunction, especially since it appears in the testimony that many of these plaintiffs participated in the formation of the corporation by attending the election and voting at the same, and that one of them was a member of and participated in the organization of the union high school board.
It is objected that the high school board had no right to make the levy in the first instance, and that no showing has been made that the regular board of district No. 97 was notified that such a levy would be required. To the union high school board, in the first instance, is committed the power to annually estimate the amount of funds necessary to carry out the purposes of the organization, and this must be calculated upon the assessed valuation of the school district for the current year. The regular school district is- required to levy a sufficient tax, not to exceed ten mills per dollar, on the taxable value of the respective districts to meet this pro rata share thus apportioned to it by the union high school board, with the condition that, should it fail to levy such tax, the high school board itself shall levy the tax, and in default of action of both of them the district boundary board is entitled to make the estimate. When the requisition is thus made by the high school board, it is the duty of the regular district to make the necessary levy; the only limit on the power being the ten-mill maximum per annum mentioned in the statute. A fair and practical construction of this statute is to the effect that there are three sources from which a levy of the kind may come, each with concurrent jurisdiction to make the same, viz.,
6. Besides all this, the plaintiffs, qualifying themselves to commence 'this suit, allege, in substance, that they are residents, inhabitants, and legal voters within district No. 97, and have real and personal property situate therein. This allegation is denied. Conceding that this states grounds authorizing them to prosecute the suit, it has utterly failed of proof, because there is no testimony whatever on that subject. Although they may have alleged sufficient to qualify them as parties plaintiff, they have utterly failed to prove the same; and hence upon this, if upon no other grounds, their suit should fail.
Upon the whole case, we are of the opinion that the plaintiffs have not shown a cause of suit; and hence the decree of the court below must be reversed, and one here entered, dismissing the complaint.
Reversed: Suit Dismissed.