State Ex Rel. Schulz v. Sweeney

*356 By the Court, Bonnieield, J.: This is a proceeding in the nature of a quo warranto, brought by the attorney-general, upon complaint of the relators, against the defendants, for unlawfully intruding themselves into, and usurping and exercising, the offices of school trustees of an alleged union school district, alleged to exist and to be formed and composed of contiguous portions of the counties of Ormsby and Douglas, and known in Douglas county as Clear Creek District No. 6, and in said Ormsby county as Clear Creek District No. 3. The formation and existence of said union district are denied by the answer, and were contested at the trial. No record evidence of the actual formation of said district was introduced, and it appears that none could be found in either the records of the school trustees of the respective districts, or of the boards of county commissioners of either of said counties. „ But it appears from the evidence that for and during the period of over nineteen years last past there were and are now numerous persons — heads of families having children of lawful school age- — -claiming to act and acting as inhabitants of said union school district, and that they have carried on a union school therein during all of said time. It likewise appears that the inhabitants of said district ten years or more ago raised the necessary funds, and built the present school house therein as a union school house for said union district. It also appears that the legal formation and existence of said union district were never questioned prior to the bringing of this proceeding. It appears that Clear Creek District No. 6, in Douglas county, was duly established in 1874, with well-defined boundaries, and that Clear Creek district No. 3, in Ormsby county, was duly formed in February, 1879, embracing certain farms and inhabitants, and that these districts are contiguous. There is oral evidence to the effect that said union district was formed by the county commissioners in April, 1879, composed of said two districts, and there is evidence to the effect that ever since the last-named date the inhabitants of said two districts have acted together as a union district, and maintained a union school therein, out of the public school fund of said districts No. 6 and *357 No. 3, respectively. Section 30 of the general school law, enacted in 1865, authorized school trustees to unite two contiguous school districts in the same county, or in adjoining counties, and to establish a union school, to be supported out of the funds belonging to the respective districts. This section remained applicable to the formation of union districts by the trustees of school districts throughout the several counties of the state until the Statutes of 1891 (p. 99) amended it so as to make it apply only to counties polling not less than 2,500 votes at the last preceding general election. The act passed February 24,1879 (Gen. Stats. 387), authorizes the county commissioners to form union school districts out of the parts of two counties under certain conditions, and it provides, in substance, that, when such district shall be established, three trustees shall be appointed therefor; that the county commissioners of the county having at the time of such apportionment the larger number of “ census children ” in its part of said district shall appoint two trustees, and the county commissioners of the other county shall appoint one trustee, “ their successors to be elected at the next general election on the same basis.” The union district in question might have been properly formed by the concurrent action of the trustees of said two school districts, or by like action of the county commissioners of said counties. In view of the fact that the inhabitants of said two districts have for a long series of years acted as a union district, and carried on a union school therein during said years, supported by the public school funds belonging to the respective districts, they may be regarded upon reason and authority as belonging to a union district, regularly organized, without proof of its formation by the records of either said trustees or said county commissioners. (21 Am. & Eng. Ency. of Law, 783, and cases there cited; State v. C. P. R. R. Co., 21 Nev. 75; Stewart v. School District, 30 Mich. 69.) We must presume, in the absence of evidence to the contrary, that the county commissioners of the respective counties appointed trustees upon the formation of said district in accordance with the provisions of said act of February 24, 1879. It seems that no election for trustees has been held in *358 either of said two districts since the formation of said union district, in April, 1879. The said act of February 24, 1879, makes no provision for the appointment of trustees in case no election is had by the voters of the district. In such case the general school law must be looked to for appointing power. It provides that the county superintendents of public schools shall appoint school trustees in all the districts of their respective counties in which the qualified voters fail to elect. Such has been, substantially, the provision of the school law ever since March 5, 1877. It will be observed that such appointments by said superintendents must be made upon the basis named in said act of February 24, 1879 — that is, of the school districts composing said union district, the one having the greater number of “ census children,” at the time of the appointment of trustees, is entitled to two trustees; the other to one trustee. The general school law (Gen. Stats. 380) makes it the duty of the census marshal to take annually, in the month of May, a census of all the children between certain ages who are residents of his district on the first day of said month, and, when a district is found lying partly id two adjoining counties, it requires him to report under oath to each county superintendent the number of children in each county. It is provided that, if at any time the county superintendent has reason to believe that a correct report has not been returned, he may appoint a census marshal, and have the census retaken. The presumption is that the marshal did his official duty, and that his report is correct. If the return of the' marshal did not correctly report the number of children in either part of said district, the statute provides a remedy and mode of securing a correct census. We are of opinion that the court, and all concerned in this case, are bound by said return of the marshal. We are of opinion that the term “census children,” found in said act of 1879, means the number of children officially registered. One of the definitions given by Webster of “census” is: “An official registration of the number of the people.” We conclude from the facts in this case, and the statutes *359 applicable thereto, that tbe relators are duly appointed trustees of said union school district, by tbeir appointments made in June and July, 1898, and that tbe defendants are not duly appointed trustees of said district, by their appointments on tbe 8th of July, 1898, or otherwise. The county superintendent of Ormsby county was authorized to appoint but one trustee for said district, but be appointed two, the defendants herein, on the same day, and, it seems, as one and the same act. We regard tbe appointment of the defendants as being without legal authority. We are of opinion that tbe defendants are unlawfully exercising the offices of trustees of said union district, and that the relators are lawfully entitled thereto. Judgment is ordered to be entered accordingly.