State ex rel. Keary v. Mohr

Evans, J. — The corporation is known by the name “Independent Consolidated School District of Yetter,” and is located in Calhoun County. It was organized pursuant to statutory procedure, on February 25, 1920. Its officers were duly elected on March 20,1920, from which date y. functioned as a going corporation. In purported pursuance of statutory procedure proposing a dissolution thereof, an election was held on November 16, 1921, wherein the proposition was submitted to the voters “for” and “against” dissolution. The corporation officials, acting as judges of the election, announced the result of such election as a tie vote, being 122 “for” dissolution and 122 “against” dissolution, and declared the proposition lost. .This proceeding is in the nature of a contest of the .decision of the judges of election thus announced. It is not a challenge to the legality of the original organization of the district as a school corporation. The contention of the relators is that the result of the said election of November 16, 1921, was not a tie, as announced by the judges of election; that, on the contrary, a majority of the [91] votes east were in favor of the dissolution; and that such majority vote worked a legal dissolution of the corporation. The primary issue tried was whether a majority of the votes cast was in favor of the dissolution. It appears that 254 ballots were deposited in the ballot box. The judges of election rejected 10 of such ballots, as having been improperly marked and as being unintelligible. Of the remaining 244 ballots, 122 were counted “for” dissolution and 122 Í ‘ against. ’ ’ On the trial below, the court found that five of the ten rejected ballots were properly rejected, and that the other five were improperly rejected, and therefore should have been counted. Of the five ballots improperly rejected, four were “for” dissolution and one “against.” No complaint is made of such finding. On this basis, the vote would have stood 126- “for” and 123 “against.” But the court also found in this connection that Ungrue, who had voted “for,” and Scaarup, who had voted “against,” were not electors, and their votes were deducted from the respective totals. On this basis, the vote stood 125 “for” and 122 “against.” These totals would, of themselves, be decisive of this issue, were it not for the contention of defendants that it was not sufficient for the relators to show that a larger number of ballots were cast “for” the dissolution than were east “against” it, but that such larger number so cast “for” must be a majority over all votes east by legal electors, whether such votes were intelligible and countable or not; and that the five rejected ballots must be included in the count for the purpose of determining whether there had been a majority “for” dissolution. To this contention, the relators interposed a twofold resistance: (1) That the point was not tenable in law; (2) that three of the votes counted “against” dissolution were cast by nonelectors, Culver and Yepson and Mrs. McCullough, and that such votes must, therefore, be deducted from the count. An issue was made upon the legality of these three votes. The case was tried to a jury. By agreement of the parties, the question whether Culver, Yepson, and Mrs. McCullough, or either or any of them, were electors was submitted to the jury for special findings. The other issues of fact [92] Avere by agreement submitted to tbe court. Tbe jury returned special findings adverse to the legality of the vote of each of the three named persons. One of the principal questions iioav presented to us is whether the court should have held, as a matter of law, upon the record, that each of the three persons in question was a legal voter. We give our first attention to it. I. Taking first the case of Yepson. Yepson had formerly lived at Yetter. In November, 1919, he went to Kanawha, and was there continuously until November, 1921, engaged in his brother’s store. On November 3, 1921, he came to Yetter, to engage temporarily in husking corn for his brother. He remained in that work until December 10th following, and then returned to Kanawha, Avhere he had remained up to the time-of the trial. It will be seen that the question of his residence turned on the question of his own real intent and purpose. If he intended to retain Yetter as his home and to return thereto, it was within his legal right to do so. If he intended to take up his legal residence at Kanawha, that also was within his legal right. He was an unmarried man. He paid his poll tax at KanaAvha. On trips aAvay from KanaAvha, he had registered his residence as “KanaAvha” on the hotel registers. He Avas a member of the baseball team of Kanawha and of the American Legion of that place. Confessedly, he was by his own intent a resident of KanaAvha on and at all times after January, 1922. He did testify that it was in January, 1922, that he formed the purpose of becoming a resident of Kanawha. But no change had occurred in his outward attitude at that time. The court submitted the question to the jury whether Yepson had, prior to" November 16, 1921, become in purpose a resident of Kanawha. If yea, he was not a legal elector at Yetter. The finding of the jury was adverse to the claim of residence at Yetter. We think the evidence Avas such as to make a fair question for the jury. Though Yepson had a right' to testify to his own purpose, and though such purpose were controlling, and though no other Avitness could directly contradict his testimony in that regard, yet his testimony was subject to contradiction by the circumstances and by his conduct. From these, the jury had a right to find that he had in purpose taken his residence at [93] Kanawha prior to November 16th, notwithstanding his testimony to the contrary. Turning to the case of Culver. He was a teacher in the consolidated school. He began his employment there in September, 1921. His contract of employment terminated in March, 1922. Prior to September, 1921, he had been a resident of Hubbard, in Hardin County, Iowa, for more than ten years. He owned a home there. His family, consisting of wife and son, were occupying that home at Hubbard while he was engaged in teaching at Yetter. His testimony as to his purpose was that he intended to make his home at Yetter as long as his employment should continue. So -far as his present contract was concerned, he had no intention to stay there longer than until March, 1922, unless he could secure a renewal of the contract. It appears also that, during the ten preceding years while he had continued his home at Hubbard, he had been continuously engaged in teaching in various towns successively. He had taught at Otteson for four years. During part of that time, he had -taken the wife and son with him, taking along sufficient furniture to keep house. At the end of the school year, they re-. turned to the home at Hubbard, and this they did every year. He taught for a year at Troy, while the wife and son remained in the home at Hubbard. He taught also at Kinross, while his family remained at the Hubbard home. He taught a year at Crystal Lake, and took his family with him. The Hubbard home was locked up during their absence. At the close of the school year, they all returned thereto. While he was teaching at Yetter, his son was attending the high school at Hubbard as a resident pupil, and paying no tuition. The father maintained a post-office box in the town of Hubbard at all times. We think these circumstances were abundant to warrant a submission of the issue to the jury. The jury finding was adverse to the legality of his vote. Turning to the case of Mrs. McCullough, it appears that she was a married woman, who had lived with her husband at Pomeroy, Iowa, until September preceding the election. At that time, she came to the home of her daughter at Yetter. Her husband maintained his residence at Pomeroy. This was suffi [94] cient to establish her prima-facie residence at Pomeroy. To meet this prima-facie case, she testified for the defendants as follows: “I formerly lived at Pomeroy. I was married to Mr. McCullough in 1898. We have one daughter. She is married. Her name is Mrs. Frank A. Gurget. She and her husband live better. During our married life I have always contributed to my own support and that of my daughter. I was a dressmaker in Pomeroy. I have kept roomers and boarders. I bought some of the furniture for the house. Mr. McCullough has used liquor. He has frequently been intoxicated. I moved over to Yetter the first week in September, 1921, and moved the furniture over there. I have been living over there ever since. “Q. Who lives with you in Yetter?- A. My daughter and her husband. Myself and my daughter and her husband lived in' the same home since we have been in Yetter. I moved to Yetter intending to make it my home. That has been my intention ever since, and is now. I have never been back to Pomeroy since I have lived in Yetter, only to visit friends. My husband has no home there to visit. I have no intention of going back to Pomeroy to live. Before I left Pomeroy, Mr. McCullough was away a large portion of the time. He was away perhaps a third of the time.” It further appears that her husband visited her at Yetter since her arrival there, and that he spent a week with her in the daughter’s home at one time. Though he had no house in Pomeroy, she did have one. The point urged in the lower court was that her testimony showed con-elusively that she was a resident of Yetter, and not 0£ poineroy, and that the court erred in submitting the issue to the jury. It is further argued that she had a right to change her residence at any time, pursuant to Code Section 2224, which provides: “3. A married woman abandoned by her husband may acquire a settlement as if she were unmarried.” The quoted section has no application to the case, for several reasons: [95] (1) There is no showing that Mrs. McCullough had been abandoned by her husband. (2) The quoted section has no application to the subject-matter here under consideration. It is a part of the Code chapter pertaining to the support of the poor and the obligation of public officials to render public support to those having a “settlement” within their jurisdiction. It is urged, however, that a married woman who has separated from her husband permanently may acquire a domicile elsewhere than at his domicile. We have so held in divorce cases, where grounds of divorce and permanent separation were shown. In such a case, jurisdiction in an action for divorce or for separate maintenance may be acquired by the district court of the county of the residence of either party. If we should say that the evidence tends to show that this lady had good grounds of divorce, in that her husband had “used liquor,” or had failed to support her, or that she had really separated permanently from her husband, yet such evidence is far from conclusive. On the contrary, it is very meager. The relators having made a prima-facie showing that her residence was at Pomeroy because that was the residence of her husband, the burden was on the defendants to meet such prima-facie showing. The doubt upon this record on this point is whether there was sufficient showing by the defendants to justify a submission of the issue to the jury. The trial court faced the alternative either to instruct the jury peremptorily, upon the prima-facie showing made by the relators, or else to submit the issue to the jury, upon the evidence of Mrs. McCullough, tending to rebut the prima-facie showing. It is clear to us that the defendants were not entitled to a peremptory holding in their favor at this point. It is not so clear but that the relators were entitled to a peremptory holding. In any event, the submission of the issue to the jury was without prejudice to the defendants, and they are in no position to complain. It is further argued, however, that the court erred in the form of its instruction on this subject, and that such instruction was itself .erroneous. No such point was made before the trial court, and it is not available to the appellants here. They [96] requested a specific instruction on the subject, which was a peremptory direction to the jury to find in their, favor on that question. It follows from the foregoing that the three persons here named were not electors of the district, and their votes should not be counted for any purpose. This reduces the total number of votes cast, to a maximum of 249, of which 125 were for dissolution. This was necessarily a majority, and we have no occasion to consider the question of law, much argued in the briefs, as to whether the unintelligible ballots cast by legal voters should be counted for the purpose of determining the question of majority. The net result was 125 votes “for,” 119 votes “against,” and five spoiled and unintelligible ballots. This majority vote, under the statute, was effective to dissolve the corporation. It remains to consider certain affirmative defenses. II. It is contended that the action was barred by the statute of limitations, reference being had to Chapter 211, Acts of the Thirty-ninth General Assembly. It is very doubtful whether the answer of the defendants can fairly be construed to plead the statute of limitations. Be that as it may, is the statute referred to available ? The chapter in question provides as follows: “Sec. 1. No action shall be brought questioning the legality of the organization of any school district in this state after the exercise of the franchises and privileges of a district for the term of six months. “Sec. 2. Every school corporation shall, for the purpose of this act, be deemed duly organized and to have commenced the exercise of its franchises and privileges when the president of the board of directors has been elected, and the record book of such corporation duly certified by the acting secretary thereof, showing such election and the time thereof, shall be prima-facie evidence of such facts.” [96] This enactment became generally effective on April 13, 1921. It was made applicable to existing corporations theretofore organized, allowing, however, thirty days from and after [97] April 13, 1921, for the bringing of ah action against such previously existing corporations. It will be seen that the legislation has no applicability to the case before us. The legality of the original organization of the district is not involved in this proceeding. If it were, the action would have become barred on May 13, 1921. The right of action here pursued did not arise prior to November 16, 1921. If, therefore, the statute in question were effective to bar this action, it would so bar it before it arose. The action was brought in June, 1922. The only statute of limitations applicable to it is the general statute relative to quo warranto proceedings. It is not claimed that such statute had run prior to the beginning of the action. This plea of the statute, therefore, cannot be sustained. III. It is further urged that the relators were guilty of laches in having delayed the bringing of this- action. Having brought their action within the statutory period of limitation, they are no more subject to the defense of laches than they are to the plea of statutory limita- .. , . -t ., tion, unless some special reason is made to appear why, in good conscience and justice to others, they should have proceeded earlier. It is made to appear in this ease that, upon the pronouncement of the judges of election that a tie vote had resulted, such announcement was taken to be true. On December 5th following, the board of directors entered into a tentative arrangement with proposed bond purchasers for the sale of $65,000 worth of bonds. It appears that an election was immediately called, to vote upon the bonds, for January 13, 1922 • that proceedings were instituted by the relators and others for another test vote on the question of dissolution, and an election was held on January 27, 1922; that this election went against the relators; that, on March 22d, an election was held for the election of directors, and these relators participated therein, and one of them was a candidate for election as director. These are the events that had happened prior to the beginning of this action which are pointed out as sustaining the defense of laches. If these are effective now to that end, they were effective immediately upon their occurrence. In order to [98] avoid the effect of such events, the relators would have been required to anticipate and precede them. To precede all of them, the action should have been commenced prior to December 5th. To precede any of them, it should have been commenced not later than March 22d. If it had been brought prior to March 22d, would the previous events be sufficient as a plea of laches? Without pursuing this line of query, it is to be noted that defendants make no claim of actual knowledge by the relators that they had a cause of action as the result of the mistaken announcement made by the judges of election. It is argued, however, that they had constructive knowledge, in that the records were open to £hem, and that they could have ascertained all that they have learned since. If this be true as to matters of record, it is not true that they had knowledge, constructive or otherwise, that illegal votes had been cast against the dissolution; nor, indeed, that illegal votes had been cast at all. Even if they had been chargeable with notice that non-electors had voted, yet they were not chargeable with knowledge as to how they had voted. These facts were ascertained in the course of the trial and by resort to court process. This want of knowledge on the part of the relators of facts essential to their suit is quite a complete answer to the plea of laches. On the question of the operation of the schools and employment of teachers, the trial court made a provisional order that protected both public and private interest in that regard. It appointed the defendant directors as trustees to carry on the schools for the ensuing year and to perform the contracts made with the acting teachers. The contract for the purchase of a school site was tentative only; likewise, that for the sale of bonds: and the purported purchase price of the bonds still remains in the hands of the purchasers. Innocent third parties were in no wise misled to their injury, and no question of that kind is presented. [98] IV. It is further urged by the defendants that the election of November 16, 1921, was void because the petition presented to the county superintendent for the calling of such [99] election was defective, and failed to confer jurisdiction upon him to call such election. The argument here takes a much wider scope than the point made in the trial court. The answer charged that the petition was indefinite", uncertain, and misleading, in that it did not provide for a return of the territory therein to the same districts to which the same originally belonged, prior to the submission of the said petition. The petition contained the following: “And we would ask that said district above mentioned be dissolved, and that said lands embraced in said district be organized and formed as they.were originally, prior to the consolidation of said independent school district of Yetter, Calhoun County, Iowa, giving to said new proposed district, after the dissolution of the district herein mentioned, the same boundaries and rights under the law as then existed, with such amendments as made by law. ’ ’ The territory of the consolidated district had been taken from the subdistricts of district school townships. The petition purported to describe specifically the constituent subdis- ■ tricts, being six in number. The description of the subdistricts purported to describe four sections for each subdistrict. As to two of these sub districts, the description contained in the petition was defective. Subdistrict No. 6 bounded Subdistrict No. 4 on the south, so that they had a common boundary. Subdis-' trict No. 4 bounded Subdistrict No. 2 on the south, so that they had a common boundary line. The description of Subdistrict No. 6 omitted the common boundary line between it and Sub-district No. 4. Subdistrict No. 6, however, was in Jackson Township, and was the only part of the defendant corporation which had been taken from Jackson Township, the remainder of such district all being contained in Elm Grove Township. The description of Subdistrict No. 4 set forth its south boundary line, which was the common boundary line between it and Subdistrict No. 6,-but it failed to set forth its north boundary line, which was the common boundary line between it and Subdistriet No. 2. This line was set forth in the description of Sub-district No. 2. These defects did not appear in the notice of [100] election, nor is it claimed that any voter was in any manner misled thereby. The claim, is that the defect was fatal to jurisdiction. To so. hold,, would be to say, in effect, that perfection of procedure is required, in order to confer jurisdiction ih such a case.- We have repeatedly, held that perfection is not the standard in such -a case, and that it is seldom-, if ever,, obtained in- any procedure- conducted by nonprofessional officials. We do not think -that the defect pointed out in this case was of that substantial character which would defeat the jurisdiction of the superintendent to issue the notices and to call the election. Other questions argued in the briefs are rendered immaterial by our conclusion announced in-the first division hereof-. We find no prejudicial-ei'ror in the.record, and the judgment below is,-accordingly,..affirmed. — Affirmed. - Arthur, -C. J., Preston and Faville, JJ., concur.