Kretchmer v. School Board of District No. 12

158 N.W. 993, 34 N.D. 403, 1916 N.D. LEXIS 39

• Court: North Dakota Supreme Court
• Decided: April 27, 1916
• Status: Published

Opinions

Fisk, Oh. T.

This is an appeal from a judgment of the district court of Barnes county, and comes here for trial de novo. The facts are substantially as follows: Plaintiffs, as citizens, residents, and taxpayers of school district No. 12, which includes the township of Noltimier and Weimer in Barnes county, seek to enjoin the defendants, who are members of the school board, and also the clerk and treasurer of such school district, from maintaining an alleged high school therein without first submitting the question of such additional school to the voters of the district. At and prior to the time this litigation arose there were but three schoolhouses in the district, and but three schools had been conducted therein. During the years preceding the commencement of this action about nineteen pupils attended school No. 1, ten attended school No. 2, and about twenty-two attended school No. 3. In all there were about seventy-seven children of school age in the district. The three school buildings were conveniently located, and no question had ever been raised as to the sufficiency of accommodations afforded by these three buildings and the schools maintained therein. In so far as schools were concerned no friction arose until about September 15, 1914, when a committee consisting of four women of the district appeared before the school board at a special meeting thereof and asked that a high school be established on the northeast quarter of section 23, known as the Will Porter Farm. The defendants Schroeder, Fisher, and Salzman comprised the directors and members of the board. The defendant, Deitmier was acting clerk of the board, and Raveling the treasurer of the district, respectively. All were present at such special meeting.

The proceedings at such meeting are best disclosed by the minutes of the board shown by exhibit “A,” as follows:

Clerks Record of Proceedings of the School Board of Special Meeting, School District-No. 12, County of Barnes, State of North Dakota. September 15th. Meeting held, Henry Deitmier, Clerk, A. D. 1914. Present: All members.

The committee, which consisted of Mrs. F. Montgomery, Mrs. Geo. Stillman, Mrs. F. C. Schroeder, and Mrs. H. R. Bruns, appeared before the board to ask for a high school to be held at northeast quarter of section 23, known as the Will Porter’s Farm.

Motion made by O. A. Fisher, seconded by F. C. Schroeder, who vacated the chair to second the motion for the board to go ahead and hire a teacher and pay for same out of the general fund.

John Salzman acted as chairman at the time.

The motion was brought before the board.

On roll call — 0. A. Fisher and F. C. Schroeder voted Yes, John Salzman voted No'.

Motion was carried by majority.

John Salzman made motion to pay $150 for expenses out of general fund. If parents of children attending said high school pay balance. No second to the motion.

Motion made by C. A. Fisher, second by John Salzman, for children to furnish their own books.

Motion made by C. A. Fisher, second by John Salzman that parents of said children haul fuel, bank up building. No further business. Board adjourned.

Henry Dei tinier.

On October 6, 1914, the board held another special meeting, and a petition signed by a majority of the voters of the district demanding an opportunity to vote upon the subject of the establishment of a high school was presented and filed, but such petition was ignored by the board. Notwithstanding such protest a majority of the members of the board proceeded to establish a school in the farmhouse known as the Will Porter house on section 23 aforesaid, and hired a young lady by the name of Miss Smith to teach the same.

It is conceded that there were but three schools in the district at that time, and that board was neither petitioned to call nor did it call a meeting of the voters of the district as provided in §§ 1192, 1184 and 1185 of the Compiled Laws, to determine the question of establishing a high school or another school in said district. The witness Deitmier, who was clerk of the board, among other things, testified in substance that the directors Schroeder and Fisher consulted Miss Nielson, the county superintendent of schools, and all agreed that there should be a high school established. Thereafter Miss Smith was hired as a teacher, and she proceeded to teach the school. This was about October 6, 1914. The witness was requested to give her a contract at certain wages but be declined so to do upon the ground that no taxes had been levied for the purpose of maintaining a high school. Soon thereafter a majority of the board declared his office vacant.

Such attempted removal of Deitmier as clerk is disclosed in the following minutes of the meeting of the board:

Ex. O. Clerk’s Record of Proceedings of the School Board of-

School District No. 12, County of Barnes, State of North Dakota.

Special meeting held, Henry Deitmier’s, November 2, A. D. 1914.

Present: All members.

Special meeting was held November 2, 1914.

The meeting was called to order by E. C. Schroeder, and was for the purpose of issuing an order for the high school teacher, Miss E. Smith. The clerk refused to issue the order, whereupon C. A. Eisher moved to declare the clerk’s office vacant. No second to the motion. C. A. Eisher further made a motion to appoint IT. R. Bruns to fill the vacancy. E. O. Schroeder vacated the chair to second the motion. John Salzman took the chair as the motion was brought before the board in this form.

All in favor of H. R. Bruns being appointed as clerk, manifest by . saying I! Whereupon O. A. Eisher and E. O. Schroeder voted I. There was no contrary vote.

The clerk refused to turn over the books on the ground that it was ■not legal to issue a warrant to the said high school teacher, as there was no money levied for that purpose.

No further business, and board adjourned to take further steps in the business.

Henry Deitmier, Clerk.

Miss Smith conducted school at the Stillman residence for a brief period and afterwards at the Porter farmhouse, as stated in the record. Defendant Eisher testified, among other things, that the board hired a teacher and furnished the fuel for heating the building, and that it kept the school and maintained it under the direction of said teacher from October 15, 1914, until the time of the trial, and that the board agreed to pay the teacher for her services from the funds of the district. The witness, Miss Smith, testified on behalf of the defendants as follows: “I taught two weeks in the Stillman house and then the school was moved to the Porter house. I had eight pupils in attendance. They ranged from thirteen to' eighteen years of age. I was hired to teach arithmetic, civics, spelling, United States history, algebra, geometry, ancient history, German I. and II, and English I. and II. These subjects are taught in the high school. I also have one pupil taking studies in the eighth grade now. There were three taking eighth grade work when I began, but the others have finished. Algebra, geometry, ancient history, German I. and II. and English I. and II. were not in the regular eighth grade course. They are first and second year high school work.”

As before stated this action is based upon the alleged ground that the defendants had established, and are maintaining, a high school or extra school in the district at the expense thereof, and without first complying with the statute in reference thereto, there being but three schools in the district, and no petition had been presented for the calling of an election, and no opportunity had been given the voters upon the question of establishing another school or a high school in the district.

The trial court made findings of fact and conclusions of law favorable to the defendants, holding that the proceedings of the board were in all things lawful, and it entered judgment in defendants’ favor. Erom such judgment this appeal is prosecuted.

The issues are clearly defined and not difficult of solution. The fact that a new school of some kind was established in the fall of 1914 and that a teacher was employed therefor is unquestioned. It is also a conceded fact that prior thereto but three schools had been maintained therein, and, further, that the question of establishing such new school was never submitted to the voters of the district, although the board was petitioned'so to do, and in fact a majority of the electors filed with the board a protest against its acts in establishing and maintaining such additional school without first submitting the question to a vote of the electors of the district.

Did the board in fact establish, or attempt to establish, either a high school for the district as alleged by the plaintiffs, or an additional common school therein ? As we read and understand the record before us we are constrained to differ from the views of the learned trial judge, and to hold that the clear preponderance of the evidence sustains the allegations of the complaint. Whether a high school was in fact intended by a majority of the directors to be established is not, for reasons hereafter stated, of controlling importance to our decision, but we are nevertheless agreed that such was clearly the intention of the board, as disclosed by the evidence. Indeed we are unable to construe the testimony in any other light. The minutes of the proceedings of the board meetings, which were put in evidence, as well as the oral testimony of' the clerk of the board and several others, including the testimony of Miss Smith, the teacher employed, all tend to support plaintiffs’ contentions. The minutes of the various meetings of the boards with reference to this matter are shown by exhibits A, B, C, and D, Exhibit.A is as follows: “September 15, meeting held at Henry Deitmier’s, clerk,. A. D. 1914. Present: all members. The committee, which consisted of the Mesdames Montgomery, Stillman, Schroeder, and Bruns, appeared before the board to ask for a high school to be held on the N. E. of section 23, known as the Will Porter farm. Motion made by Eisher, seconded by Schroeder, who vacated the chair to second the motion for board to go ahead and hire a teacher and pay for same out of the general fund. Motion was carried by majority. Salzman made motion to pay $150 for expense out of the general fund, if parents of children attending said high school pay balance. No second to the motion.”

Exhibit “B.” “Special meeting held at Henry Deitmier’s, October 6th, A. D. 1914. Present: all members. There was a protest presented to the school board by a majority of the voters of school district No. 12, who demanded a voice in the high school question. The board would not grant the request. No further business. The board adjourned. Signed, Henry Deitmier, Clerk.”

Exhibit “0” has already been quoted.

Exhibit D is the protest against the high school and the petition asking the board to submit the question to a vote of the electors of the district. It bears the names of thirty-four persons. Plaintiff John Kretchmer testified: “I am a farmer and live in Weimer township, married; I live with my family, have been a county commissioner of Barnes county for the past two years. I have school children residing at my home. I live in district No. 12. The school board has undertaken to establish and operate a high school in the district. I have heard the testimony of Deitmier with respect to attendance and the accommodation, and the-facts as stated by him are true! I never heard any complaint of lack of accommodation in the schools we already had.”

Plaintiff Carl Newman testified: “I am a farmer and live with my ■family in district No. 12, Noltimier township, where I have lived for -eleven or twelve years. I have children of school age residing at home with me. I talked with the defendants Fisher, Salzman, and others • about this proposed high school. I said it was not fair to establish ■the high school and levy a tax on the taxpayers for it. They called it a high school Mr. Fisher told me that himself. That is all it was ■■■called. I talked to John Salzman. I told him we wanted to have a vote by the people on the question of whether we should have a high ■ school or not. It was called a high school in that conversation. Salz-man, Fisher, Schroeder, Bruns, and others were there. We told them .it was not fair because we should have a vote. They should give the people a chance to vote on it. I mean the question of whether we ■ should have a high school or not.”

Defendant Paveling, treasurer of the district, testified: “I am a farmer living with my family on a farm in district No. 12, in Noltimier township, and am the treasurer of the school board of district No. 12. I was present at a meeting of said school board held November 2, 1914, held to undertake to remove Mr. Deitmier, the clerk. Mr. Schroeder, president of the board, stated the object of the meeting was that the ■clerk had refused to issue an order for the high school teacher so she ■could draw her pay from the treasurer. The meeting was for the purpose of having the board,insist on said clerk drawing such warrant to pay the high school teacher.”

Defendant Salzman testified: “I was at the meeting when Mrs. Montgomery and the other ladies appeared before the board and asked lor a high school. I objected to the district paying for the high school, and I would not at first take the chair. Mr. Bruns made me -net as chairman in order to bring the motion before the house, where it would be carried, and so that the district should carry all the expense <of the school. I was against them. I says we will try and find out first whether we have a legal right to establish a high school, etc.

“Some of the directors called Miss Nielson, the school superintendent, -out there, and we discussed the high school question there until about midnight, and I said I would not take the responsibility, but if the ■majority of the people were in favor of it I would be. As long as the ¡majority of the people had nothing to say to it, I would not take the responsibility, and Miss Nielson was there and we tallied the matter over and over again, and Miss Nielson said, ‘Yes, we could have a high school and she said she would take the matter on her own shoulders.’

“The first time I heard them talking it was alwáys about a high school. Never anything' else but the high school, and up until that time Miss Nielson was there, and she and Mr. Deitmier had quite an ■argument at that meeting. Miss Nielson said they could proceed to ■establish this school under the guise of a school to teach other grades.

“They were going to teach German for one thing. I heard Miss Nielson ordered to get the German books for them.”

From the foregoing, as well as other testimony of like effect in the record, we see no alternative but to hold that the facts are contrary to the findings of the trial court on this point. In arriving at this conclusion we have not overlooked the contention of defendants as made in their answer and the proof in support thereof. In such answer they negative an intention to establish a high school and they allege that “wherever the word ‘high school’ may be used or spoken of in the minutes of the said board, that the same was figuratively used, and without any intention of using the same as alleged in plaintiff’s said complaint, and the only object that the said defendants sought to accomplish was the hiring of an additional teacher, who was able to teach eighth grade work and additional subjects of a higher grade, and which are ordinarily taught in the first year high school work,” etc.

Such contention does not impress us with much force, nor do we deem the proof sufficient to sustain the allegations in the face of the showing to the contrary. In the light of the facts as found by us, it follows that the injunction prayed for should have been granted, for the statute (§ 1192, Comp. Laws, 1913) which is the exclusive source of the board’s powers, is plain that a high school cannot be established in a district containing less than four schools, nor without the board first receiving authority therefor by a vote of the electors of the district.

But we should be obliged to reach the same conclusion even if such new school was not intended to be a high school, and this for the following reasons: Under our statute the school board is not given a free hand to arbitrarily locate, establish, and maintain new schools at its sole discretion, but it must act in the matter “as provided by law.” The language contained in § 1174, Compiled Laws, which grants power to tbe board to conveniently locate, organize, and maintain schools, is qualified by the words “as provided by law,” and this section must be construed together with § 1184, which reads: “That whenever in the judgment of the board it is desirable or necessary to the welfare-of the schools in the district, or to provide for the children therein, proper school privileges, etc., the board shall call an election of the-voters in the district at some convenient time and place fixed by the board to vote upon the question” involved.

It follows that the school located and established in the Stillman,, and later in the Porter, house, which concededly was thus located and established without a previous vote of the district, was in defiance of the plain mandate of the statute, and without authority on the part of the school board, and it should therefore have been enjoined as-prayed, for in the complaint. It is an elementary and well-established rule that school district officers have and may exercise only such powers-as are expressly or impliedly granted by statute. Capital Bank v. School Dist. 6 Dak. 248, 42 N. W. 774; Parmers’ & M. Nat. Bank v. School Dist. 6 Dak. 255, 42 N. W. 767; 35 Cyc. 849, 925.

“Where the question of the creation of a district high school is-by the statute to be submitted to the voters in the territory which is to be affected, such statute is mandatory, and must be followed to-effect a legal establishment of a district high school.” Ping v. Keith, 150 Ky. 452, 150 S. W. 523.

A court of equity will, in a proper case and on the suit of an interested taxpayer, enjoin illegal or unauthorized acts on the part of the school board in the matter of the organization of new schools or the creation or increase of the district’s indebtedness or unlawful payment, or application of the school funds. 35 Cyc. 1050.

Por the foregoing reasons the judgment must be reversed and a judgment entered in plaintiff’s favor for the relief prayed for. It is so ordered.