Donough v. Dewey

Champlin, C. J. This is a common-law certiorari. The plaintiffs, ten in numbei’, are tax-payers residing in school-districts 1 and 7, in the township of Penn, in the county of Cass. The defendants constitute the board of school inspectors of the township. November 13, 1889, school-district No. 4 was situated in the south-east portion of the township of Penn, and comprised five whole sections, four half sections, and one quarter section. School-districts 1 and 7 are contiguous to district No. 4. In November, 1889, the board of school inspectors took steps to enlarge school-district No. 4 by detaching territory from school-districts Nos. 1 and 7. They gave notice of the time and place of meeting for — 311 — the purpose of considering the propriety of altering, and. of altering, if deemed proper, the boundaries of district No. 4, and they gave in the notice the exterior boundaries of the district as they would be when altered, and also the boundaries of the district as it then existed, without mentioning in such notice school-districts 1 and 7 by name. The notice was signed, “ C. H. Kenworthy, Clerk of the Board of School Inspectors." The time for meeting was stated to be on November 25, 1889, at 10 o'clock A. m., and the place at the township clerk's office. The board met at the time and place stated. No question is made as to posting the notice in the districts interested. School-district No. 4 of the township of Penn is a graded school-district, and the trustees gave their consent in writing to the proposed change. The board met pursuant to the notice, and, after hearing arguments for and against the proposed change, and on motion of those opposed to the change, the further consideration of the matter was adjourned to December 7, 1889, at 10 o'clock A. M., at the same place, at which time the board again met, and adjourned the place of meeting to the parlors of the Pemberton Hotel, being to a room adjoining to the clerk's office. Two of the petitioners for the writ of certiorari appeared before the board and objected to their jurisdiction, and moved to quash all proceedings. Bight reasons were specified why the proceedings should be quashed, which were overruled, and are embraced, among others, in the assignments of error in the petition for the writ .of certiorari, and will be considered later. After hearing further arguments, the board voted to change the boundaries of school-district No. 4 in accordance with the notice given. Afterwards, and within the 10 days required by law, the town-clerk served upon the directors of school-districts 1 and 7 and 4 a notice containing the boundaries of the school-districts — 312 — respectively as affected by the alterations made by the hoard of school inspectors. The petition sets up, and the return admits, that El-vene M. Hollister, one of the members of the board of •school inspectors, is a female person. The plaintiffs in «certiorari insist that their proceedings are illegal and wholly void for If reasons assigned in their petition, which may be summarized as follows: 1. Elvene M. Hollister was not eligible to the office of school inspector, and consequently the board of school inspectors was not legally constituted. 2. The notice posted was not in compliance with law; and therefore the board acquired no jurisdiction. 3. The board lost jurisdiction by adjourning. 4. Irregularities committed by the board in their proceedings. The reasons assigned relating to irregularities in the proceedings which do not affect property rights or juris- diction may be dismissed, with the remark that they cannot be reviewed upon certiorari. The law is silent as to the power of the board to adjourn. We think they have the right to adjourn, for :any sufficient reason, both as to time and place; and unless it is made to appear that such adjournment was an abuse of their corporate functions, and operated to the detriment of those affected, or to be affected, by the proceedings, such action is not subject to review. The objections to the notice are: 1. It is not signed by Charles H. Kenworthy as township clerk, but, instead, as the clerk of the board of •school inspectors of Penn township. 2. It does not state what lands would be detached from school-district No. f, nor from school-district No. 1, and attached to school-district No. 4. The boundaries of all school-districts are of record in the township clerk’s office, and also in the office of the director of each school-district. Both the original bound — 313 — aries of school-district No. 4, and the boundaries as proposed to be altered, were contained in the notice. This was sufficiently definite and certain, and showed that territory was to be detached from districts 1 and 7, and attached to district 4. These notices were posted in districts 1 and 7. While it would have been proper to have named districts 1 and 7 in the notice, it was not essential, when the notice showed upon its face- that they were to be affected by the proposed action. The law1 states that the township clerk shall give at least ten days’ notice of the meeting. By the Constitution,2 the township clerk is declared-' to be ex officio a school inspector, and the statute says that .he shall, by virtue of his office, be the clerk of the board of school inspectors. In our opinion, the notice, having been in fact signed by Charlee H. Kenworthy, who was township clerk, is a valid notice, whether it describes him as township clerk or clerk of the board of school inspectors of Penn township. The main objection to the legality of the proceedings of the board is based upon the ineligibility of El vene M. Hollister to hold the office of school inspector.3 The board consists of three persons, and it appears that the action of the board complained of was unanimous. It would have been legal had Miss Hollister not voted or acted. She assumed to be school inspector by virtue of an election to that office, and she acted as such. Whether she was qualified to act or not, the proceedings had the sanction of the majority of the board, and were therefore legal. The constitutional question therefore does not necessarily arise. Mr. Justice Cooley, in his work on Constitutional Limitations (5th ed.), at page 196 (*163), — 314 — expresses the sentiments of courts of last resort in this language: “ Neither will a court, as a general rule, pass upon a constitutional question, and decide a statute to be invalid, unless a decision upon that very point becomes necessary to the determination of the cause/'’ Counsel for petitioners make the point that the law authorizing the election of two school inspectors is void, as being in conflict with Art. 11, § 1, of the Constitution, which provides that— “There shall be elected annually, on the first Monday of April, in each organized township, * * * one school inspector, * * *• whose powers and duties^ shall be prescribed by law/’ The same section makes the township clerk ex officio■ school inspector. It is a matter of serious doubt whether the Legislature can create offices which are special in the-Constitution, and limited by that instrument as to the number to be elected, without some authority, express or implied, contained in that instrument. But this question does not necessarily arise. There was in fact and law one-school inspector elected by- the electors of the township of Penn, and he, with the town-clerk, would constitute the board, if the additional school inspector was unauthorized. If the law did authorize two school inspectors, then Miss Hollister was elected to that office. The law authorizing her election had not been declared unconstitutional, nor the law for an additional school inspector. While it is true that there cannot be an officer de facto unless there be an office to fill, yet the rule is modified, so far as offices have been created by the Legislature, while the statute creating them has not been declared unconstitutional. This is upon grounds of public policy. Mechem, Pub. Off. §§ 318, 327. She was therefore a defacto officer, having been elected under a statute which — 315 — had not been declared unconstitutional, and her acts are valid whether she was eligible or not. The return made by the board of school inspectors to the writ of certiorari shows that their action was legal and proper. The right of any member of such board claiming to be lawfully elected, and in possession of the office, cannot be tried upon certiorari in this collateral way. The proper method is by information in the nature of a quo warranto. The proceedings of the board should be affirmed, with costs. The other Justices concurred. Footnotes [1] How. Stat. § 5040. [2] Const. Art. 11, S 1. [3] How. Stat. §§ 782, makes females eligible as members of the board of school inspectors.