Denniston v. School District No. 11

17 N.H. 492

Opinion

Woods, J.

The law provides that “ every school district shall be a body politic and corporate, and may sue and be sued.” Rev. Stat., chap. 70, sec. 1. A power clearly and necessarily resulting from that of suing, and from the capacity of being sued, is that to appoint suitable agents and attorneys for conducting such suits and defences as the district may be involved in, and the power to settle and to issue instructions to such agents and attorneys. The power to become a party to an action also clearly involves that of adjusting the action, and of becoming nonsuit, of suffering default, and of confessing judgment. Nothing short of all the powers that are ordinarily incident to the conduct of a suit at law or in equity, could possibly have been intended by the legislative grant of corporate existence, and the capacities enumerated in the section referred to.

■ There can be no doubt, therefore, that the school district that has been made defendant in this action had the right legally to withdraw the defence that had been instituted'; and that they had also the power to appoint and to instruct an agent to carry the purpose of the district into effect.

By sec. 5 of chap. 70 of the Revised Statutes provision is made for calling special meetings of school districts. If the prudential 'committee shall neglect for the space of ten days, after application in writing by three or more voters of the district, to call such special meeting, the selectmen, upon a like application, shall call such annual or special meeting, by causing a like notice, signed by them, to be posted up, as prescribed in a preceding section ; that is, seven days before the day of meeting.

An application was made in this case to the prudential committee, to call a meeting on the 18th day of October. This meeting they refused to call, though they did, within ten days from the time of the application, call a meeting to be holden on the 18th day of November. This was without doubt a special meeting, and one which the prudential committee might, by the fourth section of the chapter referred to, have had the power to call. But it was not the special meeting that they had been requested to call. The plain design of the law is, to enable three or more voters of each school district to require a meeting of the district to be held for special purposes; and the prudential committee are not intrusted with the power to defeat the wishes of such voters in that particular; for, if thej' refuse to call the meeting, the selectmen must do it. If the prudential committee have the power to postpone the meeting applied for, to a day to be selected by themselves, it is plain that no special meeting could ever be held against their will; for all such applications might be satisfied by calling meetings on tbe days of the annual meeting. It is impossible to believe that the statute can receive such a construction. It is therefore plain that the prudential committee refused to call the special meeting applied for by the three or more voters who signed the application.

The application was made on the twenty-seventh day of September, and the “ ten days after application made” expired with the seventh day of October following; and it is said that the action of the selectmen was premature, because their warrant or notice calling the meeting of the district bore date of the seventh of October. But the date was immaterial. It did not in fact receive the signatures of a majority of the selectmen and become a proper warrant until the 8th of October.

The mode of calling the meeting is “by posting up a notice.” This was not done until the 8th of October, which was after the expiration of the ten days of deliberation allowed to the prudential committee. Ther.e is nothing in the statutes that requires the application t.o the selectmen to be postponed until the expiration of the ten days, or which precludes the selectmen from preparing a warrant in advance of the occasion demanding its use. The posting up the notice, which is the efficient act, was not premature ; and was clearly justified by the neglect and refusal of the prudential committee, for the space of ten days, to call the special meeting applied for.

These parties have the control that parties ordinarily have over their case in court. It is not the part of the court to pronounce upon the validity of a defence that has not been set up, or that has been withdrawn. To do that would be an invasion of the rights of the parties. They are regularly in court by their counsel, and the defendant is not to be compelled to remain here, litigating against their will expressed in the only form in which a body corporate can express their will, merely because the facts, as they now appear, disclose a sufficient defence. It is not to' be' assumed that the district is exercising its legal powers to the wrong and detriment of any of the inhabit- - ants.

There must therefore be, by the agreement,

Judgment for the plaintiff’.