Viland v. Board of Education, File No. 3967

File No. 3967 | S.D. | Mar 22, 1917

SMITH, J.

This case is before ub' on rehearing. The original decision will be found reported in 138 N. AV. 906. The only question to -be considered at this time is the constitutionality of the -curative act. AVe -held in the. former opinion that the power of the Legislature to pass curative -statutes is without limitations or restrictions ■ except such ' as are imposed by ' the Constitution. AVe adhere to that view. A somewhat more extended statement of the proceedings had in the organization of the independent school district of Veblen is perhaps necessary to a final and proper solution of the questions involved.

Appellants’ assignments of error are based upon the refusal of the -trial -court .to adopt certain findings of fact which are contained in the record. For the purpose of this appeal, we may assume the facts to1 be as stated in such proposed findings. So far as material here, the}'- are as follows:

“(2) That the town of A^eblen is .an incorporated city-, * * * and is situated on * * * (certain- described lands) * * * within the •boundaries of the alleged Veblen- school -district.

“(3) That in the month of April, 1914, a petition was presented to the county superintendent of schools of Marshall county to incorporate an independent school district consisting of the following territory *■* * (describing the territory now comprised within Veblen independent school district). * * *

“(4) That acting up-on - said petition, the county superintendent of schools in and .for Marshall county, S. D., issued a call for a school election to- be held, on the nth day of May, 1914, for the purpose of incorporation of the territory mentioned in the third finding into the independent school district of Veblen, that on the nth day of May, 1914, an election was held to vote on the incorporation of said territory into an independent school district, and that the people living’ within the incorporated town of Veblen voted at said 'election, and that the returns of said election showed that there were ninety votes cast for consolidation and -three votes cast again-st consolidation.

“(5) That thereafter and on the 13th day of May, 1914, Elise Vanderhorck,- the then county superintendent of schools of said county, issued a notice for a special election in the city of Veblen on the 29th day of May, 19x4, for the purpose of electing school officers. That at the school election so- held on the 29th ■of May, 1914, the persons named as defendants herein were elected members of the hoard of education of said alleged Veb-den independent school district.”

• Then follow certain findings reciting the holding of an election within said independent school district upon the .questions of issuance of bonds to erect a schoolhouse, the letting of contracts for the erection thereof, and a finding that, if the defendants are not restrained by an order of this court, they will proceed to erect a schoolhouse and to expend money for which said ■bonds were sold. As conclusion of law, appellant asked the trial court to hold that the election on May 11, 1914, for the purpose of voting on the organization of the independent school district of Veblen, was illegal and without any authority of law. At the trial it was stipulated that:

"Veblen independent school district and the officers thereof proceeded in all things according to law in the matter of submitting to the.electors and voters of said district and voting upon the issuance of bonds of said district in controversy herein, and in doing all other acts relative to the sale thereof and entered into a contract for the sale thereof and for the erection of the schoolhouse for said district, and in' doing all other things complained of by the plaintiff’s herein, sarde and except only as the same may be affected by the fact that a large portion of the territory described in the petition for the incorporation in said-district was and is outside of the corporate limits of the city of Veblen (italics are ours) ; the plaintiffs contending that for such -reason the incorporation of, said district was and at all times has been illegal and void, and that, in consequence thereof, the said bonds so issued or about to be issued by said district, and contracts for the sale thereof and,for the erection and furnishings of said schoolhouse, are also void.”

Section 174, art. 11, -c. 135, Raws 1907, as amended by chapter 214, Raws 1909, is as follows:

“ * * * That any city or town, or an}' unincorporated town or village, having a population of one hundred inhabitants or over, within a radius of one mile from the center, may adopt the provisions of/this act. In such cases the county superintendent shall, upon petition of a majority of the legal voters within the proposed district, call the first election therefor by posting notices in not less than three of the most public places in the district or districts in which said city or town is situated, said notices shall contain a full description of the boundaries of the proposed district, and also the time and place of holding the election. If a majority of the voters of the district or districts in which the said city or town is situated-, shall vote for the incorporation of the said city or town as a corporation for -school purposes, then it shall be considered as authorized and the county superintendent shall, without delay, publish notices for an election of officers of said corporation.”

This section in substance provides that any city, town, or any unincorporated town or village, having a population of ioo inhabitants or over, within one mile from its center, may become incorporated as an independent school district, upon a petition of a majority of the legal voters who reside within the district proposed to be so -incorporated. And if a majority of the voters (of the district or districts within which such city, town, unincorporated town, or village is situated), residing within the limits of the new district thus proposed, ©hall vote for such incorporation, such territory becomes duly incorporated as a new independent school district.

[1,2] It must be conceded that this statute contains -clauses which are apparently conflicting and render its construction' difficult. It is the duty of this court, however, to interpret such statute to give effect, so far as possible, to the legislative intent, if ascertainable. This section is the only one found in the act prescribing the mode of -creating new independent school districts. Under it, the town -having the requisite population adopts the provisions of the act and proposes the proceedings to incorporate an independent school district. The proceeding is begun by a petition signed by a majority of the voters within the proposed new independent district. There is no limitation, in section 174, upon the size of the proposed district. The petition, being the Basis of the proceeding, must indicate the boundaries of the proposed district, because, without indicated boundaries, it could not be determined whether the petition was signed by the required majority of voters, nor could a “full description of the -boundaries of the proposed- district” -be given in the notices of election required by the section. Notices must 'be published in the district or -districts in which said city or town is located, and the election is determined by a majority of the votes of the .district or districts. If’ the proposed independent -district is to be carved out of an existing school district in which the -city or town is situated, which is larger in area than the city or town, a majority of the voters in the entire school -district is required. If the proposed independent district is -to be carved out of territory already embraced in tw-o or more school districts, in one of which the city or town is situated, a majority of the voters in such districts is required. To malee these requirements effectual, the boundaries of the “city, town, unincorporated town or village” must be ignored, as the section -deals with territory already within existing school districts; the only limitation being that the city or t-own adopting the act must contain-ioo population or over, and must be within the proposed independent district.

The notices of election must contain “a f-ul-l description -of the boundaries of the proposed district.” This requirement plainly implies that the boundaries of the new -district -do not necessarily -coincide -with the boundaries of the city or town. If the -city or town, itself, comprised the new district, such a description of its boundaries would appear to be superfluous. We are therefore of opinion that appellants’ contention that this statute does not contemplate the inclusion within a newly formed independent district o-f any territory outside the city, town, or unincorporated -town or village, cannot be sustained. If the statute named only incorporated cities, towns, o-r villages, the suggestion would perhaps seem -more plausible. In order to give this section any intelligent meaning, we must -construe the words, “shall vote for the incorporation -of the said city or town as a corporation for school purposes,” to mean the city or town when that only embraces the area of the -proposed district, and also the city or town plus the adjacent area when such city or town an-d the adjacent area are attempted to he organized as a district. Plainly, this statute contemplates the formation of new independent districts out of the territory comprised within one or more pre-exist-ing school districts, whether within or without the boundaries of such city, town, or village. Section 175, which creates a committee of arbitration for the adjustment of property interests “between the new corporation and' the district or districts affected by its formation,” makes this entirely clear. But when an existing independent school district seeks to- take in adjacent territory, the conditions prescribed by Section 176 'become operative. 'That section has no application in this case. The trial court found, and it is undisputed, that, for several yeans prior to these proceedings, there had existed a school district embracing the entire township of Veblen, covering 48 sections of land known as Veblen township school district, and.it was out of this territory, including the -city of Veblen, that the new independent district was formed.

It is perfectly clear therefore that the proceedings for the formation of the Veblen independent school district were had under the provisions of section 174. The question of jurisdiction sought to be raised by appellant is not controlling, and irregularities in the proceedings, if any existed, were cured by chapter 8, Laws 1915, quoted in our former opinion.

Lor this reason, it becomes unnecessary to- determine the constitutionality of the curative act as applied to a proceeding where an existing independent school district may have sought to annex adjacent territory without complying with the requirements of section 176, art. 11, c. 135, Laws 1907, and we now reserve that question for future consideration when it may arise.

The judgment of the trial court is affirmed.