169 N.W. 809 | N.D. | 1918
Lead Opinion
This is an appeal from an order entered in the district court of Hansom county, sustaining a demurrer to the complaint. The action was brought for the purpose of enjoining the defendants from asserting any jurisdiction over certain territory that had been annexed to the defendant school district, or from levying upon or carrying forward upon the books of the defendant district any taxes for the benefit of the district or certifying the same to the county auditor. Judgment was also asked against the school district for an amount paid in taxes during the year preceding the bringing of the action. The complaint alleges in substance that the plaintiffs are owners of property within the territory affected by the alleged annexation proceedings; that they bring the action on behalf of themselves and others similarly situated; that on the 25th day of June, 1915, the defendant school district, acting through its board of education, the members of which are made defendants, made a purported order annexing certain territory to the defendant district, part of which was originally embraced in the Tuller School District No. 19, and some of which was located more than 3 miles from the central school in the defendant district; that the annexation proceedings had were void for the reasons: (a) That the application therefor was not signed by the requisite number of qualified petitioners; (b) that the application was signed by some who Avere not residents or voters of the territory sought to be annexed; (c) that proper notice of hearing of the application was not given; (d) that, after the application was signed by all petitioners except two, it was altered by one of the individual defendants, a member' of the defendant school board, by the addition of descriptions embracing additional territory; and (e) that there were forty-five resident school voters in the school territory added to the application, eleven'of whom signed the application. The
As stated above, the proceedings complained of were shown by the complaint to have been had on or about the 25th day of June, 1915. This action was begun on the 7th day of April, 1916. A demurrer was served on April 12th and filed on the 5th day of December, 1917. The order sustaining the demurrer is dated on the 8th day of December, 1917.
The proceedings involved in the action were had under § 1240 of the Compiled Laws of 1913. This section provides that special school districts may annex adjacent territory “upon -application in writing signed by a majority of the voters of such adjacent territory, provided, that no territory shall be annexed which is at a greater distance than 3 miles from the central school in such special district, except upon petition signed by two thirds of the school voters residing in the territory which is at a greater distance than 3 miles from the central school in such special district.” The section _ further provides for fourteen days’ notice of a hearing to be published in the various newspapers and for notices to be posted in conspicuous places, three of such notices being required to be posted in the special district, three in the territory sought to be annexed, and three in the district remaining from which the territory is sought to be taken.
As above indicated, the plaintiff alleges noncompliance with the above statute in the failure, of the petition to contain the requisite number of signatures of qualified petitioner’s and in the failure to give proper-notice of the hearing. The complaint is therefore sufficient as against the demurrer if the proceedings are open to attack in
The complaint, fairly construed,, alleges facts which, if proven, would establish that the defendants are illegally exercising jurisdiction over the territory sought to be annexed to the defendant district for school purposes. The respondent argues that the attack in' ques-ion is collateral and that the'plaintiffs are not entitled to the relief sought until there has first been a judicial review of the proceedings had by the officers of the district in a certiorari proceeding. We are of the opinion that certiorari as embodied in the Code provision of 1895, after the decision of this court is the case of Ee Evingson, 2 N. D. 184, 33 Am. St. Eep. 768, 49 N. W. 733, would have afforded to the plaintiffs a remedy to secure a review of the proceedings had before the board of the defendant district. Provision is expressly made now (Eev. Codes 1895, § 6104, Comp. Laws 1913, § 8451) for .the proof of any question of fact which is essential to the jurisdiction of the body or officers making the determination to bo reviewed by certiorari. It is also now provided (Eev. Codes 1895, § 6107, Comp. Laws 1913, § 8454), that the record of the board may be impeached by the return or by the written proof authorized by the preceding section. But it does not follow that certiorari is the only proceeding in which the right of the defendants to exercise jurisdiction for school purposes over the territory in question can be attacked. It was competent at the common law to resort to proceedings in the nature of quo warranto for the purpose of determining the legality of the exercise of the corporate franchise' of a municipal or quasi municipal corporation over territory sought to be included therein. This question was directly presented to the supreme court of Illinois in the case of People ex rel. Huck v. Newberry, 87 Ill. 41. That case involved, as does the case at bar, the legality of a proceeding to attach territory to an existing school district, and the supreme court held that quo warranto was as applicable to test the legality of the re-form ation of a district as to test the validity of its original formation. The proceeding in that case was an application for a judgment for delinquent school taxes and the court held that the defendants could not inquire into the legality of the organization of the district except by quo warranto. The pertinent holding is: “The inquiry, whether it
While laches is somewhat argued in the briefs, we do not consider that the question is properly here at this time, and we consequently refrain from expressing any opinion on this phase of the case.
For the foregoing reasons the order appealed from is reversed.
Dissenting Opinion
(dissenting). As I construe the complaint in this case, the action is one to enjoin the collection of taxes. The prayer for judgment is that defendants be enjoined from asserting jurisdiction over the annexed territory, and from levying taxes against property located therein; and, also, that plaintiffs and all others similarly situated have judgment against the defendant school district for the amounts paid for taxes levied during the year 1915. I do not, however, deem the character of the action of controlling importance. The action is brought by the plaintiffs as private persons. There is no averment that the attorney general was ever requested to institute or co-operate in bringing an action in the nature of quo warranto. There is nothing to show that anyone but the plaintiffs assail the an-
