State ex rel. Thompson v. Booth

Evans, J. 1. The defendants are the purported officers of the consolidated independent school district of Alleman. The school corporation in question was organized under the provisions of Chapter 143, 34th G. A., in pursuance of an election held in January, 1914, wherein the majority of the electors voted in favor of such organization. [145] The legality of such election is challenged by the plaintiff because the territory included in such proposed school district included the village of Alleman and other outside territory, and the judges of election failed to provide separate ballot boxes for the respective voters within and without such village. It is made to appear from the answer demurred to that such village of Alleman is not an incorporated village, and'has no “incorporated limits.” It is further made to appear therein that such village had only seven voters and that all such voters voted in favor of the organization of such school corporation. It is averred in plaintiff’s petition that the village of Alleman was a “platted village.” This allegation is put in issue only by a general denial in the answer, and we are disposed to assume the truth of such allegation for the purpose of this discussion. The question presented for our consideration is, whether the election held was rendered void by the failure of the judges of election to furnish two ballot boxes at the election. This involves a construction of Chapter 143 above referred to. This chapter purports to be an amendment of Sec. 2794-a of the Code Supplement. Such chapter provides as follows: “When it is proposed to include in such district a city, or town or village, the voters residing upon the territory outside the incorporated limits of such city, town or village shall vote separately upon the proposition for the creating of such new district.” It also provides that “the judges of said election shall provide separate ballot boxes in which shall be deposited the votes cast by the voters from their respective territories.” It is further provided that if a majority in either territory shall vote against the proposition, then the same shall fail. The first question presented, therefore, is, was it necessary to 'take account of the platted limits of the village of Alleman and to furnish two ballot boxes for the respective [146] territories within and without such platted limits? It will be noted that the statute refers, in terms, to “incorporated limits.” It is a.matter of general knowledge that the “incorporated limits” of cities and towns are often, if not usually, not co-extensive with their platted limits. The legal entity of a city or town is defined by its “incorporated limits” and not by its platted limits. The village of Alleman had no “incorporated limits,” because it was not incorporated. To substitute in such a case the platted limits for the incorporated limits would be to add something to the statute. We think, therefore, that the requirement for separate ballot boxes cannot apply to a village which has no incorporated limits. We have no argument for the appellee. It might be urged in his behalf that under our statute there can be no such thing as an incorporated village as distinguished from an incorporated town, because an incorporated village is the statutory equivalent of an incorporated town. It is undoubtedly true that an incorporated village would be a “town” within the meaning of our statute. Code Sec. 638. In this sense, the use of the word “village,” in the chapter referred to, is mere surplusage. The ordinary definition of a village is a small assemblage of houses, whether situated upon a platted district or not. See Webster’s Dictionary; Bouvier’s Dictionary; Truax v. Pool, 46 Iowa 257; Mikael v. Equitable Securities Co. (Tex.) 74 S. W. 67; State v. Lammers, 113 Wis. 398, 89 N. W. 501; Illinois Central v. Williams, 27 Ill. 48. The statute under consideration, however, assumes the possibility of the creation of an incorporated village. Even though this be a mistaken assumption, or an erroneous terminology, it cannot have the effect to enlarge the application of the statute to a village not incorporated. We conclude, therefore, that the statute by its terms is applicable only to municipal corporations having “incorporated limits.” 2. In view of the showing that the proposition to form the school district was carried by clear majorities both within [147] tbe village of Alleman and without the same, we are not prepared to say that the mere failure of the judges to furnish two ballot boxes at such election is sufficient, of itself, to render the election wholly void. In view of our conclusion upon the first question considered, we need not pass upon this one. We think the demurrer to the answer should have been overruled. The order sustaining such demurrer must therefore be reversed, and it is so ordered. — Reversed. Ladd, C. J., Weaver and Preston, JJ., concur. SUPPLEMENTAL OPINION. Wednesday, February 17, 1915. Evans, J. 1. Statutes: construction: mtent: sub-words1112 I. Upon further consideration of the foregoing case on rehearing, it is the view of the majority that our holding in the first division of the opinion should be changed and that the term “incorporated limits” should be construed literally only as to mcorporated cities and towns; that as to unincorporated villages it should be construed as the equivalent of “platted” limits. This construction adds something to the statute, whereas our former construction took something away. One construction or the other is unavoidable. The majority prefer addition to subtraction. It is thought also that our former construction might quite prevent a village from becoming the center of a consolidated district." We hold, therefore, that the statute ought to be deemed applicable to unincorporated-villages and that the limits of such villages are to be ascertained from the platting thereof. [148] „ „ boxesa-t<when0t sc¿oois°eandy: school districts. [147] II. On the question considered in the second division of the opinion, it was made to appear affirmatively that the vil [148] lage in question had seven votes and that these were all cast in favor of the consolidation. It was also made to appear affirmatively that a clear and large majority of the votes cast from outside ^ yj^age was in favor of such consolidation. In the presence of such a showing, we are of the opinion that the election was not rendered void by the mere failure of the judges to furnish two ballot boxes. The former order of reversal is adhered to. But the ground of such reversal is changed as herein indicated.