School District No. 1 v. Joint Township Boards

Fellows, J. The trial judge so clearly stated the subject-matter of this litigation and the proceedings *329 reviewed that we adopt 'his statement as a statement of the case. It is as follows: “This is a proceeding by certiorari to review certain proceedings of the township boards of Bethany and Pine River, in detaching upwards of two hundred (200) acres ¡of land from said school district No. 1, and attaching the same to said school districts 7 and 8, township of Bethany. The proceeding is instituted by the school officers of the said district No. 1, city of St. Louis, and it is their claim, in their petition for certiorari that such proceedings, and the detachment of such property, are void and of no force and effect for numerous reasons. “A petition was filed by certain property holders, some of whom were residents of said fractional district No. 1, directed to the township board of township of Bethany, Gratiot county, Michigan, praying that their property therein ^described be detached from said fractional district, and attached to said districts 7 and 8, Bethany; that said petitioners also directed ^ request to the board of education of the school district No. 1, fractional, that said board consent that the territory described therein be detached from said school district No. 1, fractional, and attached to school districts 7 and 8, and that later on said board of education took action upon said request and unanimously refused to grant such consent; that thereafter three of said petitioners, who had the statutory qualifications under section 5737 of the Compiled Laws of 1915 (having children between the ages of five and twelve years, residing one and one-half miles or more from a schoolhouse in such district) appealed under said statute to the judge of probate of said county, whereupon such proceedings were reviewed and an order made and entered by said judge of probate setting aside such refusal to consent, and directing the township boards to proceed to hear the original petition; that thereafter notice was served by the township clerk for Bethany and Pine River, upon the officers of the school district of said city of St. Louis, fractional, No. 1, and notices were posted regarding a meeting to be had by said joint boards, and proof of service and posting of such notices was filed at such hearing. Thereupon said matter was heard by the *330 said township boards of Bethany and Pine River, the officers of the school district No. 1, fractional, having appeared specially and challenged the jurisdiction of said boards to hear said petition, by proper and appropriate objections duly filed, and upon such hearing all of the lands described in said petition were detached from said school district No. 1, fractional, and some lands were attached to school district No. 7 and other lands to. school district No. 8 of said township of Bethany, and detached from said fractional district No. 1.” Numerous objections were urged against the validity of these proceedings which were fully considered by the trial judge. They are all discussed at length in the exhaustive briefs of counsel as well as several questions of practice. I shall not, however, follow counsel through their discussion of many interesting questions as I am satisfied two meritorious objections establish the invalidity of the proceedings. The petitioners, ten in number, first applied to the trustees of plaintiff district under the provisions of section 5737, 2 Comp. Laws 1915, for consent to change the boundaries of the district and such consent was unanimously refused. The provision requiring such consent will be found in Act No. 170, Laws 1871, § 13. This provision applicable to graded schools was mandatory, prohibited any change unless such consent was given, and such consent and a proper record of it was jurisdictional, and without both consent and proper record of such consent any change in the boundaries was invalid. Burnett v. School Inspectors, 97 Mich. 103. In 1899 provision was made for appeal to the judge of probate. Act No. 258, Pub. Acts 1899. It should be noted that this act purported to amend section 4746, 2 Comp. Laws 1897, although the provision amended is found in section 4749. Further amendments will be found in Act No. 83, Pub. Acts 1909, and Act No. 351, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 5737). But *331 the right of appeal was expressly limited and I think it is apparent the legislation was designed to grant the right of such appeal to a limited class without detracting from the settled policy of the State to strengthen and build up graded schools, fully reviewed by Mr. Justice COOLEY in Stuart v. School District, 30 Mich. 69. The right to such appeal was carefully circumscribed. The appellants must be three in number, they must be taxpayers and resident taxpayers at that; they must have children between the ages of 5 and 12 years. No one not so circumstanced can appeal under this statute, all others are without such right, and, 1 think it must necessarily follow, are bound by the action of the board. In the instant case I think the probate judge misconceived his power under the statute, but that may be unimportant. Defendant boards proceeded on the theory that the order of the probate judge inured to the benefit of the seven nonappealing petitioners as well as to the three appealing petitioners, and that if opened up the whole matter for consideration by them, and they set over into the township district lands of nonappealing as well as lands of appealing petitioners. I think the boards in thus acting proceeded under an erroneous construction of the law which is subject to review on certiorari. This may in the instant case work a hardship as the lands of two of the appellants are not contiguous to the township district, and nonappealing petitioners must be granted this petition in order to effectuate these appellants’ prayer for relief. But the proceedings are purely statutory and the statutory provisions evidence a settled policy of the State to strengthen the graded schools and to make it difficult to take from them portions of then; territory. I think the trial judge correctly held that the successful appeal of three of the petitioners did not operate to bring before the boards the full matters involved in the *332 petition and that the refusal of the trustees of plaintiffs’ district of consent to set over the land's of the seven nonappealing petitioners was final. Plaintiff district consists of the city of St. Louis and portions of the townships of Bethany and Pine River in Gratiot county. It had recently erected a school building and issued its bonds in the sum of $35,000 payable in five years and the lands detached had been assessed therefor. The owners of these bonds were entitled to look to their full security for the payment of the bonds and any attempt to lessen their security would be invalid as to them. Finn v. Board of Sup’rs of Bay Co., 167 Mich. 166. As concerns the rights of bondholders the territory included in the district could not be lessened by detaching therefrom any portion. Of course, if the district after the detaching of portions of its territory, paid the bonds as they matured, this question would not and doubtless could not be raised by the bondholders. The burden, however, would, under such •circumstances, fall more heavily on the territory left in the district. I think these considerations should be borne in mind in considering the legislation to which I shall now refer. Plaintiff insists that under the provisions of Act No. 351, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 5656), these lands could not be detached without the consent “of a two-thirds majority of the resident owners of said lands,” and that the words “resident owners of said lands” had reference to the resident owners of all the lands in the district and as such consent had not been obtained the proceedings to detach were void. ' This question was brought into the case by an amendment to the petition and a supplementary answer. Defendants’ counsel here assign error on permitting the amendment, but the record does not disclose that any objection was made in the court below to the amendment or that this *333 question was not considered in the court below upon its merits without objection. However, our statute of amendments is broad enough to permit the amendment (3 Comp. Laws 1915, § 12478), and the court in its discretion would be authorized to issue additional writs of certiorari in order to fully and properly dispose of all questions in the case: Grand Rapids, etc., R. Co. v. Allegan Circuit Judge, 203 Mich. 99. I quote the section as amended by the act of 1919, italicizing the words here under consideration: “A township board may in its discretion detach the property of any person or persons from one district and attach it to another: 'Provided, however, That no land which has been taxed for building a schoolhouse shall be set off into another district for the period of three years thereafter except by the consent of a two>thirds majority of the resident owners of said land," and no district shall be divided into two or more districts without the consent of the majority of the resident taxpayers of said district, and no two> or more districts shall be consolidated without the consent of a majority of the resident taxpayers of each district.” Section 9, chap. 2, Act No. 351, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 5656). I have noted the fact that the district included lands in Bethany township, some of which were detached. The petitioners in the proceedings were resident owners of more than two-thirds of the lands of plaintiff district located in that township and it was urged in the supplementary answer and is here urged, that the township boards were authorized to detach lands from this school district on consent (as evidenced by. their petition) of two-thirds of the resident landowners of that part of the district located in the township even though such lands were but a fragment of the entire district. But I think this too narrow a construction of the statute. The patent purpose of the statute was to preserve a school district which owed for its schoolhouse intact for the period named *334 unless the statutory number consented otherwise. The legislation was in the interest of the district and the “said lands” referred to the lands im the district which had been taxed for building a schoolhouse and all of them. The school district is an entity whether its lines coordinate with those of one municipal corporation or it takes in parts of many political subdivisions. The cost of building a schoolhouse is laid on that entity and all of it. To relieve lands of that burden there must be consent by the statutory number of the qualified owners of lands of that entity, not of some other ■entity, nor of the fragments of townships which contribute to make up the whole. Any other construction of this statute would thwart the wholesome purpose of this legislation. I think the judgment should be affirmed. Bird, Moore, Steere, and Wiest, JJ., concurred with Fellows, J.