Sand ex rel. All other Taxpayers of Scott School District No. 12 v. Peterson

E. E. Eisk, District Judge. This is an appeal from an order of the district court of Adams county dissolving a temporary restraining order and refusing to grant a temporary injunction upon a hearing of an order to show cause why a temporary injunction should not issue pendente lite. The material allegations of the complaint are as follows: 1. “That prior to January 25, 1913, defendants formed and associated themselves together under the name and style of 'the Board of Education of Hettinger School District No. 13.’ “2. That Hettinger school district No. 13 is, and has been during all of the times hereinbefore referred to, a common-school district of said county, principally comprised of township 129 of range 96. “3. That it is not possible for said common-school district to have a board of education, nor never has been, nor were any of said defendants ever elected or appointed as members of any such board. That such school district is, and always has been, governed by a district-school board consisting of three members. “4. That township 129 of range 95 of said county is called 'Scott school district No. 12.’ “5. That plaintiff is a resident, legal voter, and taxpayer of said county and Scott school district, and the owner of 146 acres of land therein, and an undivided half of another tract of land of 160 acres, — 174 — all within the limits of such district, and also a large amount of personal property. “6. That at a special meeting of said defendants on January 25, 1913, there was an application in writing presented to them under their fictitious name of ‘the Board of Education of Hettinger School District No. 13’ in words and figures, to wit: ‘Hettinger, N. D., January 18, 1913. We, the undersigned, legal voters of and within the territory hereinafter described, do hereby petition the Honorable Board of Education of Hettinger School District No. 13 of the state of North Dakota to attach and embrace for school purposes, to the said Hettinger school district No. 13, the following described territory lying and being in the county of Adams and state of North Dakota, to wit: All of sections 6, 7, 8, 18, 17, 19, west half and the northeast quarter of section 20; west half of the northeast quarter and the northeast quarter of the southeast quarter of section 20; west half of section 30; north half of northwest quarter, southwest quarter of northwest quarter of section 29; west half of the northwest quarter, west half of the southwest quarter section 16; southwest quarter of the northwest quarter, west half of southwest quarter section 9; west half of northwest quarter, southeast quarter of northwest quarter, and the southwest quarter of section 5, all in township 129 north, range 95 west, fifth principal meridian.’ [9 signatures attached], “That thereupon said defendants, unlawfully assuming to act as and under their said fictitious name of ‘the Board of Education of Hettinger School District No. 13,’ pretended to grant the prayer of said application without any notice of hearing, and on the 26th day of February, 1913, made, issued, and entered upon the records of said district-school board an order in form, attaching and annexing said territory to said Hettinger school district No. 13 for school purposes, without either publishing or posting notices of hearing. “7. That said defendants are now threatening and making preparations to further their unlawful purpose of annexing said territory to said Hettinger school district, and they as said pretended board of education are about to unlawfully select and appoint an arbitrator, and to cause the district-school board of said Scott school district to likewise select an arbitrator, and to then cause said two arbitrators and the — 175 — county superintendent of schools of said county to act as a board of arbitration and to unlawfully effect an equalization of property, funds on hand, and debts as between sáid two school districts, and to thereby deprive this plaintiff of his property, school privileges, and advantages naturally belonging to him and to his said land, and to burden him and his property with debts and heavy taxation, and thereby do him an irreparable injury, for which he has no adequate remedy at law. “8. That much of said territory is more than 3 miles distant from the central school of said Hettinger district. “9. That the purpose of said annexation is to obtain from and to deprive said Scott school district of its taxes for school purposes, and to bring more property for taxing purposes within the limits of said Hettinger district. That the signers upon said application are not the real parties in interest, but the entire plan and purpose of said annexation is that of said defendants, and they are using said signers as the means and instruments to effect such annexation under color of right, and in taking advantage of the depopulated condition of said territory outside of said sections 6, 7, and 18. “That none of the signers of said application are residents of said Scott school district, nor are any of them voters therein for school purposes, nor were they at the time of said signing.” This complaint was duly verified by the plaintiff, and, together with the following affidavit of plaintiff’s attorney, E. C. Wilson, constituted the basis for the issuance of the order to show cause and the temporary restraining order, and was the only proof offered by plaintiff upon the hearing of such order to show cause, which resulted in the order complained of being made. Affidavit. — “E. C. Wilson, being duly sworn, says that he is the attorney for the plaintiff in the above-entitled action, and as such drew the accompanying complaint therein; that he has had under consideration from a legal standpoint all of the acts and proceedings leading up to and forming the basis of the actions threatened to now be done by said defendants, and he has fully and carefully examined as to the validity of all proceedings, and all of the records in the various proceedings attempted to be had and leading up to the present threatened ac — 176 — tions, and he is fully convinced that the allegations contained in said complaint are true and the conditions are as therein alleged. That he hereby adopts said complaint as a part of this affidavit, and constitutes as a part hereof all of the allegations of such complaint, as fully as though they were specifically set out and reiterated herein.” The defendants answered jointly, admitting the allegations of paragraphs 1 and 4, and denying the other portions of such complaint. They further allege that plaintiff is not a resident of, or property holder in, the territory sought to be annexed. They then plead a further defense by affirmatively alleging the regularity of the proceedings by which Hettinger school district No. 13 was organized into a special school district on May 2, 1911; that the defendants are the duly elected members of the board of education; that said school district has been governed by a board of education since July 11, 1911, and that such board has transacted all of the business of said school district since its organization. They further allege the presentation to said board of an application substantially as set forth in ¶ 6 of the complaint, signed by 9 out of 10 school.voters residing within said adjacent territory, and allege further the various acts of the board of education leading up to the annexation of the territory in question. This answer was verified positively by all of the defendants, and in addition thereto, upon the hearing of the order to show cause, the defendants made written return, to which were attached certified copies of the records and proceedings regarding the organization of Hettinger special school district, and also the annexation of the adjacent territory to said district. The granting or refusal of a temporary injunction is a matter largely in the discretion of the trial court, and its order will not be disturbed except in case of a clear abuse of discretion. 22 Oye. p. 748, and cases cited. It is not granted as a matter of right, but the application is addressed to the sound discretion of the court, which is to be exercised according to the circumstances of the particular case. High, Inj. ¶ 11. From the printed briefs and oral arguments of counsel in this case, it appeared to the writer that they expected this court, upon this appeal, to pass upon the merits of the main action, and, if that be true, they — 177 — are mistaken. This court is limited to a review of the order denying the temporary injunction, and in such review will be governed solely by what appears from the allegations of the complaint and affidavit in support thereof on the part of plaintiff, and the answer and return on the part of defendants. In Beaudry v. Felch, 47 Cal. 184, the court used the following language : “It is claimed by counsel for appellant that the decision of this court upon the order granting the temporary injunction has become the law of the case, and must now control the decision upon this appeal. That decision determined nothing as to the merits of the case. It held only that the complaint, assuming its allegations to be true in point of fact, was sufficient to support the injunction, and that, even if all the allegations were denied by the answer, the question of granting or refusing the injunction was one calling for the exercise of the sound discretion of the court below.” Also the following language is found in Santa Cruz Fair Bldg. Asso. v. Grant, 104 Cal. 306, 37 Pac. 1034: “There are many cases in which the complainant may be entitled to a perpetual injunction on the hearing, where it would be manifestly improper to grant an injunction in limine. The final injunction is in many cases matter of strict right, and granted as a necessary consequence of the decree made in the case. On the contrary, the preliminary injunction before answer is a matter resting altogether in the discretion of the court, and ought not to be granted unless the injury is pressing and the delay dangerous.” IJpon the hearing of an application for a temporary injunction, the rule appears to be that where the allegations or equities of the complaint are positively denied by answer or other proof on the part of the defense, the court will ordinarily deny the temporary injunction. Marks v. Weinstock, 121 Cal. 53, 53 Pac. 362; Grant County v. Colonial & U. S. Mortg. Co. 3 S. D. 390, 53 N. W. 746, and cases cited; 22 Cyc. 987, and cases cited. Applying the foregoing well-settled rules to this case, we have no hesitancy in reaching the conclusion that the learned trial court kept well within its discretion in denying the temporary injunction. The reason upon which we largely base our decision is that by the answer and return of defendants they have denied positively the principal allegations and equities of the complaint, each of the five defend — 178 — ants making the same denials and allegations as against the plaintiff alone. Further than this it affirmatively appears that Hettinger school district No. 13 has been governed by the defendants, who were at least acting as the board of education under some color of right, since in the spring of 1911, and no objection has been made thereto until this action was commenced about two years later. During that period such board has transacted all of the business and performed all of the duties of a board of education. Under the rule announced in Greenfield School. Dist. v. Hannaford Special School Dist. 20 N. D. 394, p. 399, 127 N. W. 499, there might be a serious question upon the final hearing as to whether or not the plaintiff could at this late hour question the organization of said district into a special district. Then, again, perhaps upon the final hearing the plaintiff would not be allowed to question the purported organization of Hettinger special school district in this proceeding. From the showing made by defendants it would appear that their acts and proceedings relative to the annexation of the lands which is sought to be enjoined were regular on their face, providing they had authority to act as “the Board of Education of Hettinger School District,” and in that event no injunction should be granted, either temporary or final. In view of what has heretofore been said, and the showing made upon the hearing of the order to show cause, the order appealed from was correct and fully within the court’s discretion, and the same is therefore in all things affirmed. Burke, J., not participating, F. E. Fisk, District Judge, sitting by request.