State ex rel. School District No. 94 v. Tucker

Bruce, Ch. J. This is a sequel to School Dist. v. Thompson, 27 N. D. 459, 146 N. W. 727, and School Dist. v. Special School Dist. 33 N. D. 353, 157 N. W. 287. A mandamus is sought to compel a board of arbitrators to reconvene and cause a due and proper levy to be made upon the seal and personal property of Special School District Number 33, Tower City, North Dakota, for a sufficient sum to pay an award of $239.89, with interest at 6 per cent, which it is claimed was made on the 27th day of April, 1914. The controversy is over which one of two awards should prevail, the regularity of the one sought to be enforced being challenged by the defendants and appellants, and a subsequent award of $72.62 in favor of school district No. 33, and against school district No. 94, and on which the said defendants rely, being challenged by the plaintiffs and respondents. It is clear to us that the first award, and ivhich award the plaintiff and respondent relies, was a nullity, or «.(, ¿my rate is not controlling in this case. Section 1247 of the Compiled Laws of 1913 provides that “special meetings may be called by the president, or in his absence by any two members of the board . . . or by causing [112] a written or printed notice to be left at his place of residence at least forty-eight hours before the time of such meeting.” It is clear from record that no such written or printed notice was given at this first meeting and at which T. A. Crawford was appointed arbitrator for school district No. 33. There is some testimony to the effect that it was the custom to give notice by telephone, and probably that such notice was given in this instance. One of the members of the school board, Stein, however, positively denies having received any notice, and it is undisputed that both he and Kelly were absent from the meeting. It is no doubt the law that in such a case, and where there is a failure to give the statutory notice, if all members of the board are present and participate, the action of the board will be controlling. It is equally clear, however, that where no such legal notice is given, and all of the members are not present, the action of the board at such a meeting will be a nullity. School Board No. 33, therefore, had no legal representative at the first meeting of the board of arbitrators. See School Dist. v. Bennett, 52 Ark. 511, 13 S. W. 132; Burns v. Thompson, 64 Ark. 489, 43 S. W. 499; Cunningham v. Board of Education, 53 W. Va. 318, 44 S. E. 129; Beck v. Kerr, 75 App. Div. 173, 77 N. Y. Supp. 370; 10 Cyc. 323, 324, 326. As far as the second meeting of the school board of school district No. 33 is concerned, and at which A. M. Yoorhees was appointed to represent the said district at the second meeting of the board of arbitrators, though no legal notice was given, all of the members of the board were present and participated, and no legal fault can be found. Dill. Mun. Corp. 5th ed. § 534 (263). Not only is this true, but § 1328 of the Compiled Laws of 1913 provides that “such board [the board of arbitrators] shall take an account of the assets, funds on hand, the debts properly and justly belonging to or chargeable to each corporation, or part of a corporation affected by such change, and levy such a tax against each as will in its judgment justly and fairly equalize their several interests.” The testimony shows that defendant’s school district No. 33 attached the part of the plaintiff’s territory in October, 1911, and that in October, 1911, the plaintiff had its 1911 levy of its school taxes assessed and uncollected and amounting to $1,000 to its credit on the tax records of Cass county. It is clear from the record that at the first meeting [113] of the board of arbitrators, which was held on the 27th day of April, and on which the plaintiff and respondent relies, this item of $1,000 was not mentioned or considered; and it is clear that for this reason alone a review of the award could and should have been had, and that the county superintendent was justified in calling another meeting of the board of arbitrators. State ex rel. Reynolds Special School Dist. v. School Dist. 6 N. D. 488, 71 N. W. 772. Nor is there any merit in the contention that all of the members were not present at second meeting of the board of arbitrators. All that the statute says upon the subject is that the award must be “signed by a majority of the board of arbitrators.” See § 1829 of the Compiled Laws of 1913. The rule seems to be that “the failure of one or a minority of a number of arbitrators to appear and act with the majority, after a sufficient notice and reasonable opportunity therefor, constitutes substantially, a dissent from the action of the majority, which will enable the latter to proceed, in the absence of such minority, to the rendition of a majority award in ease a majority award has been authorized, unless unanimity of action be absolutely required by statute as a condition precedent to the exercise of authority.” See 3 Cyc. 654 and cases cited. Counsel for respondent appears to be of the opinion that this action is one in equity, and comes within the section of the statute which provides for a trial de novo in this court. It is immaterial to our decision how this point may be decided. We are, however, of the opinion that, being in mandamus, the proceeding is one at law. We are clearly of the opinion that the second meeting of the board of arbitrators was properly and legally called by J. M. Reilly, the county superintendent, and that the second award that was made on the 22d day of May, 1914, was binding upon the parties. The judgment of the District Court is reversed, and the cause remanded, with directions to dismiss the petition.