Dappen v. Weber

Allen, District Judge. May 11,1920, Henry Dappen, M. C. Rilev, Joseph Kean, Alfred Ramsey, Mike J. Tiehen, Charlie Scliutte, Ambrose Tiehen, Joseph Tanning, George Funk, John Lyons, and George Utermolilen, plaintiffs, for themselves and on behalf of “one hundred thirty other qualified resident school electors and duly assessed taxpayers,” filed their petition in equity in the district court for Richardson county against Dan H. Weber, county superintendent of schools, and Joseph G. Heim, M. U. Riley, Gertrude Heim, T. T. Kinsey, H. AV. Heim, and Daisy Smith, as the board of education of high school district No. 95 and acting as the board of education of consolidated district No. 15, to obtain a decree adjudging void the order of said AAreber as county superintendent of schools of March 24, 1920, attaching the major part of districts Nos. 34, 35, 42, 43, 44, and 98 to and consolidating the same with Dawson high school district No. 95, and out of said adjoining territory and said Dawson high school district No. 95 creating consolidated district No. 15. The substance and purpose of the petition are well stated in the following excerpt from the brief of counsel for appellants: “Upon May 14, 1920, Henry Dappen, and ten other school electors and taxpayers, filed a petition in behalf of themselves and one hundred thirty other school electors and taxpayers in the district court of said county, attaching thereto the record of the proceedings before the county superintendent, and alleging that the petition filed Avith the county superintendent was insufficient and that the order of annexation is void; alleging that the act under which the annexation was pretended to be made was void and unconstitutional; that the statutes pertaining to annexation had not been complied Avith, and pray [814] ing that the annexation be declared void, the territory be restored as it previously existed, and that the defendants be restrained as county superintendent and members of the school board from exercising any jurisdiction or powers under or because of said order of annexation.” “The answer admits that no written notice was given of the organization of school district No. 15, and no election was held for the purpose of organizing said school district and for the annexation; that, by virtue of the order of the county superintendent, the annexed territory was annexed to school district No. 95 and was thereby made a párt of consolidated school district No. 15; that petitioners’ protest had no valid force or effect and the county superintendent had no authority to grant the request.” Counsel for the defendants admits that “This action is brought to test the legality of such annexation or consolidation and to set aside the order of the district court holding such consolidation lawful.” • Consolidated district No. 15 was organized under that part of section 6, cli. 213, Laws 1919, which reads as follows : “The new district when organized ‘shall be governed by all laws enacted for the government of schools; provided, that if the proposed new district contains an organized consolidated or high school district, when a petition of not less than fifty-one (51%) per cent, of the school electors in said new district residing outside of the existing organized consolidated or high school districts shall be filed with the county superintendent, then he shall declare such territory to be so annexed, conditioned upon the approval of the board of education of said existing districts.” As we have just seen, the avowed purpose of this action is to obtain a decree setting aside and holding void consolidated district No. 15, and to prevent the board of education of Dawson high school district No. 95 from exeróising authority over the adjoining territory ás a board of said consolidated district. It is not claimed that the defendants, Joseph G. Heim, M. U. Riley, Gertrude Heim, [815] L. L. Kinsey, H. W. Heim, and Daisy Smith, are not the legally qualified board of education of Dawson high school district No. 95, but it is urged that the organization of the consolidated district was defective (1) because, while the petition presented to the county superintendent for its establishment purported to contain over 51 per cent, of the names of the school electors in the adjoining territory, as a matter of fact it contained less than that number; and (2) because the order of the county superintendent was not approved by the board of education of the district from which the adjoining territory was taken. But the record shows that the county superintendent and the superintendent of public instruction recognized consolidated district No. 15 as a legal entity and the board of education of Dawson high school district No. 95 as its officers. This being an appeal from the judgment of the district court in a suit in equity dismissing plaintiffs’ action without day, it is to be tried de novo on the record there made, and we ar'e required to “reach an independent conclusion as to what finding or findings are required under the, pleadings and all the evidence, without reference to the conclusion reached in the district court or the fact that there may be some evidence in support thereof.” Rev. St. 1913, sec. 8198. It is our duty, under such circumstances, to affirm the judgment of the district court if, for any sufficient reason appearing in the record, it was correctly entered. Consolidated district No. 15 was at least a de facto public quasi corporation or governmental subdivision of the state for educational purposes, and the defendants, Joseph G. Heim, M. U. Riley, Gertrude Heim, L. L. Kinsey, H. W. Heim, and' Daisy Smith, were, respectively, de facto officers thereof acting in good faith and under color of authority. 22 R. C. L. 681, sec. 17; 24 R. C. L. 564, sec. 7. In Osborn v. Village of Oakland, 49 Neb. 340, it is said: “It is patent that the object and purpose of this proceed [816] ing is to test the corporate existence of Oakland as a city of the second class, and the question presented is whether injunction is the appropriate action. It is a general rule, supported by the decisions of this and other states, that equity will not grant a party relief by injunction, where he has a plain and adequate remedy at law. It is likewise a well-established doctrine in this country that quo warranto is the proper remedy to inquire whether a municipal corporation was legally created, as well as to oust persons exercising the privileges and powers of corporate officers when the municipal corporation has no legal existence. State v. Uridil, 37 Neb. 371; State v. Dimond, 44 Neb. 154; State v. Mote, 48 Neb. 683; High, Extraordinary Legal Remedies (3d ed.) sec, 684. An information in the nature of a- quo warranto, and not a bill for injunction, is the appropriate remedy.” In 24 R. C. L. 565, sec. 8, it is said: “The acts of a de facto school district, one operating under color of right, are valid. If a school district has been formed under color of law, its legality can only be determined by a suit brought for that purpose in the name of the state, or by some one under the authority of the state, who has a special interest affected by the existence of such corporation, and the fact that the complainant is a taxpayer is not sufficient. It is generally stated that the legality of the formation of a school district can be determined only in a direct proceeding and cannot be questioned collaterally.” The following authorities are in point: State v. Stein, 13 Neb. 529; State v. Mayor and City Council, 28 Neb. 103; Hotchkiss v. Keck, 84 Neb. 545; State v. Northup, 79 Neb. 822; State v. Whitney, 41 Neb. 613; State v. Several Parcels of Land, 80 Neb. 11; School District v. Wolf, 78 Kan. 805, 20 L. R. A. n. s. 358; State v. Olson, 107 Minn. 136, 21 L. R. A. n. s. 685, and notes; In re Sawyer, 124 U. S. 200; State v. Van Beek, 87 Ia. 569; Ward v. Sweeney, 106 Wis. 44; Demarest v. Wickham, 63 N. Y. 320; Newman v. United States, 238 U. S. 537; Reynolds [817] v. Moore, 9 Wend. (N. Y.) 35; Ex parte Keeling, 54 Tex. Cr. Rep. 118; Attorney General v. Utica Ins. Co., 2 Johns. Ch. (N. Y.) *371; Hovelman v. Kansas City H. R. Co., 79 Mo. 632; McQuillin, Municipal Ordinances, sec. 349, and note; 1 Abbott, Municipal Corporations, sec. 32, and note; Cooley, Constitutional Limitations (7th ed.) 363, 364; 10 R. C. L. 343, sec. 93; 14 R. C. L. 374, sec. 76. This rule is applicable to school districts, as, like municipal corporations, they obtain their franchises from the state and are created for public purposes and to carry out strictly public policies. This view of the case renders it unnecessary to discuss other points presented in the briefs. The judgment of the district court is Affirmed^ .