McEvoy v. Christensen

Ladd, J. An election was held in the schoolhouse of Prairie View Independent School District in Harrison County on August 15, 1914, to determine whether the Consolidated Independent School District of Beebeetown should be organized, composed of the districts and parts of districts described in a petition duly approved by the county superintendents. A majority of those voting favored the proposition, and directors were chosen January' 26'th following. On August 14, 1915, the board of directors fixed the amount required for the general fund as $6,000, and that necessary to meet the interest on bonds to be issued at $650, and certificates were made out accordingly, and filed with the respective auditors Of Harrison and Pottawattamie Counties. The levy of 31 mills necessary to raise this was regularly' made in Harrison -County, but the levy in Pottawattamie' County,- within which were four sections of land included in the 'new district, ap'pears on record under the column headed “Teachers’ Fund.” The levy was higher than previously made for school purposes in -any of the districts consolidated, and it appears that .about- $2,000 had been- turned over by the several districts [1182] to the new district, and was on hand. Other facts essential to a full understanding of the ease will appear as we proceed with the discussion. 1' IchooldÍs”d idated districts: levy: limitation. I. The limit for the support of consolidated schools such as contemplated is fixed by Section 2794-a, Par. b, Code Supplemental Supplement, 1915, at $50 per pupil residing in the district; and it .is argued that, since over $2,000 was on hand, the certification of $6,000, as required, would exceed this sum. But the limitation is of the levy for the general fund of said school . . . which shall not exceed $50 for each person of school age,” and not a limitation on the amount that may be on hand at any one time. In other words, the resources of the district to be considered by the directors are not involved in the limitation of the additional sum which may be raised by levy. As there were 129 pupils, the levy was within the limitation of the statute. 2 schools and tracts-consolÍevye:di¿sSae-cts: scnption. II. Nor is the circumstance that the record of the board of supervisors of Pottawattamie County indicated that the levy of 31 mills was for the “Teachers’ Fund” of any consequenee. It appeared that the levy was for purposes of a consolidated independent school district; and, as this could only be for ‘ ‘ general fund, ’ ’ the error manifestly was merely clerical, — a mere irregularity, — in no manner affecting the validity of the levy. See S. C. & St. P. R. Co. v. County of Osceola, 45 Iowa 168; Robbins v. Magoun, 101 Iowa 580. á' schooldís^d fdatelafstrfcts: petition for consolidation: who SbYQ electors • III. Section 2794-a of the Supplemental Supplement to the Code, 1915, provides that, “when a petition describing' boundaries of contiguous territory containing not less than 16 sections within one or more counties is signed by one third of the electors residing on such territory,” and approved by the county superintendents of schools, the question of the organization of a consolidated [1183] independent school district thereof shall be submitted at an. election to be called as therein directed, at which election ‘ ‘ all voters residing in the proposed consolidated district shall be entitled to vote by ballot for or against'such separate organization.” The parties stipulated that a witness would have testified, if present, subject to objection, that less than one third of such electors signed the petition, if women over 21 years of age residing in the district were counted as electors, but that no women presented themselves to vote or voted. There were no ballots at the election booths with the words “Woman’s ballot” printed thereon. 4. Schools and SCHOOL DISTRICTS : consolidated districts: sufficiency of petition: findings of board: collateral attack. The law required the board of directors of the school corporation within the proposed district “having the largest number of voters” to ascertain whether the.petition filed was ‘ ‘ signed by one third of the electors residing on such territory, ’ ’ and only upon so finding to call the election. Whether the correctness of its decision may be questioned in this proceeding is not broached by either party, save as raised by the plea of former adjudication, and therefore is not considered. But see Jordon v. Hayne, 36 Iowa 9, and Ryan v. Varga, 37 Iowa 78. It may be assumed that the board concluded that the statute, by using the words ‘ ‘ electors residing in such territory, ’ ’ meant males possessing the qualifications of voters. An elector is defined by Bouvier’s Dictionary as “one who has the right to vote for public officers; one who has the right to vote. ” In O’Flaherty v. City of Bridgeport, 64 Conn. 159 (29 Atl. 466), it is said: “The Constitution has given to the word ‘elector’ a precise, technical meaning, and it is ordinarily used in our legislation with that meaning only. An ‘elector’ is a person possessing the qualifications fixed by the Constitution, and duly admitted to the privileges secured, and in the manner prescribed by that instrument.” The same view is expressed in In re Application of Car [1184] ragher, 149 Iowa 225; State v. Tuttle, 53 Wis. 45 (9 N. W. 791); Bergevin v. Curtz, 127 Cal. 86 (59 Pac. 312); and City of Beardstown v. City of Virginia, 76 Ill. 34, 39. See, also, Coggeshall v. City of Des Moines, 138 Iowa 730, 736. Whenever the legislature employs -the--word ‘‘elector,’’ without qualification or explanation, the word may be -assumed to have reference to persons authorized by the Constitution to exercise the elective franchise. That instrument (Section 1 of Article 2) defines -who are electors: • • •• “Every male citizen of the United States, of the age of 21 years, who shall have been-a resident .of this state 6 months next- preceding' the election, and of the county in which he claims his vote, 60 days, shall be' entitled- to vote at all elections which are now or hereafter may be-authorized by -law.” Section 1131, Code, -1897, does not purport to enlarge these qualifications, nor to declare women electors. It merely specifies certain subjects upon which discrimination will not be tolerated, by' providing that: .“The right of any citizen to vote at any city, town or school election, on the • question of issuing any bonds for municipal or school purposes, and for the purpose of borrowing money, or on the question'of increasing, the tax levy, shall not -be denied or abridged’on account of sex.” -See Section-2747, Code, 1897. • This is not inconsistent with the section of the Constitution quoted, for that relates to qualifications to vote for public officers (Coggeshall v. City of Des Moines, supra) ; and, as said, though according woman'the right to-express her preference on the questions enumerated, does not create her an elector. For these reasons, the board of directors - rightly decided that women were not to be counted in ascertaining whether the petition was “signed” by one-third of the electors “residing” in-the proposed district. [1185] 5 schools and ~ “leof womenlusI°n [1184] '■ IY. • It is also argued that the organization of ..'the consolidated independent school district was not.valid, for that [1185] women were denied the right to vote on whether such a district should be created. No woman presented herself at the polls or offered to vote, and the right of women as a class to east ballots on such issue.was in no manner challenged by election officers or others. This being so, the right of any citizen to vote was not denied or abridged on account of sex. In Coggeshall v. City of Des Moines, 138 Iowa 730, the right of women as a class to participate in the election was denied by the municipal and election officers, and in this respect the ease is to be distinguished from this case. True, Section 1131 of the Code, 1897, exacts that separate ballots shall be furnished and these deposited in a separate box, and a separate canvass thereof made. For all that appears, all this might have been done, had any of the female residents of the district required ballots. Though separate ballots are to be furnished, this does not mean that they be different from those furnished male voters. Chambers v. Board of Directors, 172 Iowa 340. There is no showing that an insufficient number was in the hands of the election officers, or that ballots could not or would not have been furnished if requested, and a separate ballot box provided, had one been necessary. The record precludes any inference that women, individually or as a class, had been denied the privilege of participating in the election. This being so, we have no occasion to inquire whether organizing the consolidated independent school distinct involved an increase of tax levies. See Younker v. Susong, 173 Iowa 663. 6 pleading • confused^numbe?-" ’ a^aphsTadmissions. V. Appellants contend, however, that, because of admissions contained in the answer, the relief prayed should have been awarded. The petition, after reciting the proceedings the matter of organizing the district, alleged in Paragraph 7 that the election held on July 15, 1914, was void for that: (1) The petition for the proposed district was not [1186] signed by a sufficient number of electors; (2) not all tbe electors entitled to vote were permitted to do so, in that women were denied such privilege; (3) the proposed district does no.t contain 16 sections of land; (4) no notice of the election was given the electors; (5) no ballot was used as provided by law; and (6) there was no qualified board of directors of Prairie View Independent School District with which the petition ' was filed. The next paragraph, though the eighth in fact, also was numbered 7; and therein it was alleged that a tax levy of $6,000 for general purposes was made by the directors of the Consolidated Independent School District of Beebeetown, and duly certified to the boards of supervisors of Harrison and Pottawattamie Counties, which attempted to make a tax levy of 31 mills to raise such amount for the ‘ ‘ Teachers ’ F'und. ’ ’ In the ninth paragraph, numbered 8 in the petition, the plaintiff alleged that such levy was void, for the reasons: (1) That there was no legal school district capable of estimating a school tax or asking that it be levied; (2) that the estimate was not made by duly elected and qualified directors of said alleged district; (3) that the boards of supervisors of the respective counties did not make the taxes levied of 31 mills, as provided by law; and (4) that the levy is in excess of the legal levy authorized by law. After responding to the first 6 paragraphs of the petition, the defendants, in the answer, “admit that, on or about the 14th day of August, 1915, there was certified by the secretary of the Beebeetown Independent District a tax levy of $6,000, and also the amount necessary for teachers ’ fund was duly certified to the boards of supervisors of Harrison and Pottawattamie County. Admits Paragraph 8.” The answer then “denies each and every allegation contained, except those therein' before admitted,” and pleads a former adjudication. Evidently, after detailing the facts concerning the levy, defendants intended to admit the paragraph of the petition relating thereto, erroneously marked in the petition “Para [1187] graph 7, ” though in fact the eighth paragraph. That marked “Paragraph 8” merely states legal conclusions, such as were thought necessarily to follow from the facts alleged in. the two previous paragraphs, viz.: that there was no legal district or qualified school directors, because the petition for- organization of proposed district was not signed by one third of the electors residing therein, and because of the denial of the right to vote to voters residing on the territory of the proposed district; and that there was a defect in making the levy. These were the legal conclusions sought to be drawn from the fact allegations of the petition, which the defendants were contending ought not to result from the facts pleaded. . Surely, counsel ought not to be held to have admitted these legal conclusions, necessarily fatal to their defense, unless such inference is unavoidable. The other construction is open, and we are satisfied that the admission was of the facts concerning the levy in the eighth paragraph of the petition (marked “Paragraph 7”), and that reference to the legal conclusions stated in the paragraph marked “8,” to which no response was necessary, was not intended. Having found that the- organization of the coñsolidated district was not invalid in the respects contended, and that the tax levies were valid, there is no occasion for the consideration of the plea of former adjudication. — Affirmed. G-áynor, C. J., Evans and Salinger, JJ., concur.