158 N.W. 906 | S.D. | 1916
The -town of Veblen is an- incorporated town covering an area of 40 acres-. In the month of April, 1914, the voters of the town sought to organize an- -independent school district talcing in a considerable amount of adjacent territory. Proceedings were had under article 11, chapter 135,. Laws of 1907. In May, 1914, an -election was called -at which -the voters -of.the.town of Veblen an-d also the voters -of the -proposed adjacent territory
The trial court f-o-un-d that, ever since its original attempted incorporation, said district had- assumed and performed all the functions and -duties of an independent school -district, and had levied and -collected taxes for the- support thereof. This action-was to enjoin the independent school district and its officers from issuing bonds for the erection of a sc-hoolhouse, and to enjoin-the levy and collection of .taxes upon plaintiffs’ property outside the corporate limits of t-he town- of Veblen. Findings and judgment, that the plaintiffs take nothing by this action, and adjudging the bond proceedings .regular, and the proposed issue of bonds valid- and legal obligations of said district.
“The general provision at the close of that section thait ‘In .-all cases where a general law can1 be applicable no special law shall be enacted/ is designed as :a -guide to the Legislature, and -that body must itself determine whether or not a general law can be made 'applicable to- the subject. * * * The protection against unwise or -oppressive legislation, within constitutional bounds, is by -an1 appeal to^ the justice 'and patriotism- of the the representatives of the people. * * * The judiciary can -only arrest the ■execution of -the statute when it conflicts with the -Constitution. It cannot run -a race o-f opinions upon points -of reason, right, and ■expediency with the law-making power.”
“There has been some confusion as to the significance of the word 'jurisdictional’ in this and other decisions on the subject. The respondent appears to claim that every act required by law to ibe done by any person, officer, lor body in the course of the proceeding is ‘jurisdictional,’ in the sense here intended, so- that its omission or defective performance ousts jurisdiction, and renders all subsequent acts void, and that none of these irregularities are affected by the curative clause. It can be easily shown that this would make the curative clause without substantial effect.”
After discussing the distinction between acts essential to arr exercise of the taxing power and those acts which, constitute a: part of the procedure in the exercise of'conceded-taxing power, the court, quoting with- approval from Ensign v. Barse, 107 N. Y. 338, 14 N. E. 400, 15 N. E. 401, says:
“ ‘If the' thing wanting or omitted which constitutes the defect is something the necessity fior which the Legislature might havé-dispensed with by prior -statutes, or if something has been done' or done in :a particular way which the Legislature might have made immaterial, the omission or irregular ¿.act may he cured' by a subsequent statute.’ * * * A curative statute or clause may preclude all investigation except ‘the single inquiry -whether, in the case presented, the effect of applying the statute is to deprive the party of his property -without due process of law.’ ”
The court -then proceeds 'to 'discuss the due process clause as affecting tax .proceedings, which is immaterial here.
Appellants’ counsel cite many additional authorities which-hold that “jurisdictional” defects cannot be validated by curative legislative acts; but in each -case the same distinction will be found, viz., the -distinction between acts which condition the exercise of the legislative power, 'and acts- which are merely regulatory, legislative power being conceded. Many if not alf of the cases cited by appellants -involved the levy and collection of taxes where no valid assessments -existed. In-' such cases it is uniformly held that assessment or valuation is jurisdictional, and cannot be dispensed with by legislative enactment in the form.
“A defect may ibe in one sense jurisdictional relatively to the authority of the assessors acting under an existing law, and yet not so as it respects the power of the Legislature to- pass a statute curing the defect.”
The power to pass -curative statutes- is -without any limit except such as is .imposed by constitutional restrictions or limitations. In re Combs of Elizabeth, 49 N. J. Law, 497, 10 Atl. 363; Blount v. City of Janesville, 31 Wis. 658; Chase v. Trout, supra.
The manner of creating and organizing school districts and the boundaries thereof is not limited or controlled by any provision of the state Constitution and is wholly within th-e legislative power and discretion. It is not for this court to determine whether that discretion has- been wisely -or unwisely -exercised. Every law enacted by the legislative assembly, not forbidden or limited by some -constitutional provision, must be enforced and obeyed by this court, as by every citizen of the state. The curative act involved in this case plainly is- not within any one of the cas-es enumerated in the 11 subdivisions of section 23, article 3, and is not specifically prohibited. The decision of this court: in Stuart v. Kirley, supra, is 'therefore conclusive and controlling in this case. The -courts of California, Indiana, Texas, Colorado, Kansas, Nebraska, Oklahoma, Iowa, Illinois-, and perhaps others where similar ¡constitutional provisions exist, sustain the rule announced by this- court in the Stuart Case. . Sanitary District of Chicago v. Ray, 199, Ill. 63, 64 N. E. 1048, 93 Am. St Rep. 102, and- cases cited in n-ote 'b.
This curative act, in direct and explicit terms, validates the proceeding's under which the independent school district of V-eblen was attempted to' he -created. It is therefore unnecessary to consider the question of irregularities in the proceedings- under which the district was -originally attempted to he organized and created, or the question of laches on the part -of plaintiffs in instituting this proceeding. All other questions raised become immaterial. That portion of the judgment declaring the proceedings under which 'bonds are proposed to be- issued, and the bonds-, to .be
The order 'denying a new trial and the judgment of the trial court dismissing plaintiffs’ action are 'affirmed.