Peth v. Martin

The opinion of the court was delivered hy Mount, J. — This is an action to restrain the organization of a union or graded school for school districts Nos. 4 and 15 in Skagit county. It was alleged in the complaint that the petition fpr the union of these districts, which was acted upon hy the hoard of directors of district No. 4, was not sufficient, and also that no notice, as required hy law, was given of the election, and for other reasons. It will he unnecessary to notice the other reasons, or the assignments of error based thereon. On a trial in the lower court judgment was rendered dismissing the cause, and this appeal is prosecuted from that judgment. It is conceded that the petition circulated in one of the districts asking that the question of a union be submitted to the electors, was signed and presented to the board of directors of the district more than a year prior to any action being taken thereon, and that between the time the petition was presented to the hoard and the time the order was made for an election to he held thereon another petition was presented, asking for the union of these two districts with two other contiguous districts; that this last named petition was acted upon by the hoard, and the question of uniting these four1 districts was submitted to an election, and the election was unfavorable. Subsequently the first petition was acted upon hy the [3] board -without another petition therefor. The statute in force at the time (§ 2280, Bal. Code) was as follows: “Whenever the residents of two or more school districts may wish to unite for the purpose of establishing a union or graded school, the clerks of said districts, by order of the boards of directors, shall, upon a written or printed petition of five or more heads of families of their respective districts, call a meeting of the voters of such districts at some convenient place, by posting written or printed notices in like manner as is provided for calling annual school district elections. . . .” Clearly the authority of the directors to order such an election depends upon the written petition therefor. Dartmouth Savings Bank v. School Districts, 6 Dak. 332 (43 N. W. 822); Fractional School District v. Metcalf, 93 Mich. 497 (53 N. W. 627); Rayfield v. People ex. rel. McElvain, 144 Ill. 332 (33 N. E. 188). No time is fixed by the statute when the hoard shall act on such petition. The board must, therefore, act upon it within a reasonable time. WTiere there is no showing which would excuse the delay, a year or more is certainly not within a reasonable time. The only showing attempted in this case was that another petition was presented in the meantime to unite two other districts with the two in question, and for a union school comprising four districts instead of two. This petition was accepted and acted upon by the board, and submitted to the electors. If the election upon this proposed union had been successful, it certainly could not be claimed that the original petition had not been abandoned. The order of the board of directors upon the last petition, including all four of the districts in one, would, in that event, certainly be held to amount to a rejection of the first petition, or an abandonment thereof. The result of the election could not change this effect. The fact that the election was opposed to the [4] union of the four districts could not revive the petition which had been waived or rejected. We think that the subsequent petition and order for election did not excuse the delay, but constituted an additional reason why the first petition must be held to have been abandoned, and of no further effect. Before the board of directors could legally call an election for the union of districts 4 and 15, as originally proposed, another petition to that effect was necessary. We are also of the opinion that the notice of the election was not sufficient. The statute prescribing the notice is in § 2420, Bal. Code, and is as follows: “The district clerk must give at least ten days’ notice of such school election, by posting or by causing to be posted written or printed notices thereof in at least three public places in the district, one of which must be the place of holding the election. Said notice must designate the place of holding the election, day of holding the election, hours between which the polls are to be kept open, names of offices for which persons are to be elected, and terms of office, with a statement of any other questions which the board of directors may desire to submit to the electors of said district. Notices must be signed by the district clerk, ‘By order of the board of directors.’ Unless otherwise designated in the notice of election, the polls shall be open at one o’clock in the afternoon and close at four o’clock in the afternoon; but the board of directors may, previous to giving notice of election, determine on an hour before one o’clock, but not earlier than nine o’clock in the forenoon, for opening the polls, and for closing an hour after four o’clock, but not later than eight o’clock in the afternoon. In no case shall the polls be open before the hour named in the notice, nor kept open after the hour fixed for closing the polls, but if there is not a sufficient number of electors present at the hour named for opening the polls to constitute a board of election, it shall be lawful to open the polls as soon thereafter as a sufficient number of electors is present: Provided, That in [5] cities and incorporated towns the polls shall open not later than one o’clock in the afternoon and close not earlier than eight o’clock in the afternoon.” The notice posted was as follows: “Notice of Special School District Meeting. “Notice is hereby given that a special meeting of the legal school electors of School District No. 15, of Skagit County, Washington, will he held at the school house in said district on the 3d day of August, 1901, beginning at the hour of 4 o’clock p. m. of said day, for the purpose of determining or voting upon the question of forming a union high school with La Conner (Disk No. 4). “Vote union high school — Yes. “Vote union high school — No. “By order of the Board of Directors. “Dated this 23d day of July, 1901. “Bichard H. Peth, “School District Clerk.” The provisions of the statute above quoted are mandatory, to the effect that notices must he posted, that they must designate the place and day of the election and the hours between which the polls must he kept open, and must state the question which the hoard of directors may desire to submit to the electors of the district. Fractional School Dist. v. Metcalf, supra; 21 Am. & Eng. Enc. Law, p. 794 et seq. The hoard of directors may, in their discretion, increase the time of keeping the polls open either before one or after four o’clock p. m., but the polls must he kept open in any event from one o’clock to four o’clock p. m., and this time cannot he infringed upon by any order of the hoard of directors. The notice in this case is in direct violation of the statute, because it provides that the polls shall not be open until four o’clock p. m., and no notice is given of the closing time. Eor these reasons we think the election was unauthorized. The cause is therefore reversed, with directions to the [6] lower court to enter judgment in accordance with the prayer of the complaint. Fullerton, O. J., and Dunbar and Anders, JJ., concur.