McDonald v. Hanson

164 N.W. 8, 37 N.D. 324, 1917 N.D. LEXIS 106
CourtNorth Dakota Supreme Court
DecidedApril 18, 1917
StatusPublished
Cited by6 cases

This text of 164 N.W. 8 (McDonald v. Hanson) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDonald v. Hanson, 164 N.W. 8, 37 N.D. 324, 1917 N.D. LEXIS 106 (N.D. 1917).

Opinion

Grace, J.

What may be termed the pleadings in this action are composed of a petition for a writ of certiorari and the return to such writ. Omitting the title and formal parts of such writ, the same is as follows, to wit:

To the above-named court and judge thereof: Now come the above-named plaintiffs and upon the affidavit of Hugh McDonald, Henry A. Gordon, George Vettel, and George Wright, four of the above-named plaintiffs, and upon the affidavit of John Cannody, both of which affidavits are hereto attached, petition and pray said court and judge thereof that a writ of certiorari may be issued directed to the above-named defendants and requiring said defendants and each thereof to certify fully to the said court issuing said writ at a specified time and place within said writ to be specified, all the proceedings by you or any of you taken in the matter of the attempt to divide Caledonia school district in Traill county or create or organize a new district consisting of the civil township of Herberg, which now constitutes a part of said school district, and to annex to the writ a transcript of the record and proceedings therein described and referring to them with convenient certainty, and also a statement of all other matters and proceedings pertaining to matters mentioned in said affidavits by them or any of them had, in order that the proceedings had as mentioned in said affidavit to it and that such proceedings may be reviewed by your Honorable Court, and do further pray that by said writ the praties of the defendant and each of them be required to desist from further proceedings from the matters stated in and reviewed in said writ of certiorari and thus your petitioners will ever pray.
Dated this 22d day of July, a. d. 1916.
■ John Cannody,
C. E. Leslie.
Attorneys for the above-named plaintiffs.

The petition for writ of certiorari was supported by the affidavit of Hugh McDonald, II. C. Gordon, George Vettel, and George Wright, [329]*329to the effect that all of the plaintiffs were resident voters, taxpayers, and freeholders in Caledonia school district. The affidavit further sets forth the names of the board of county commissioners, the county auditor, and the county superintendent of Traill county, who were the acting and duly qualified officers during the times involved in such petition. It is further stated and described in such affidavit all the territory included in Caledonia school district as it then existed, and that Hugh McDonald, George Wright, and Henry Gordon did at such time constitute the school board of Caledonia school district. Such affidavit further describes the number and character of the school buildings within the school district of Caledonia as it then existed, describing among others a large school building the estimated value of which was $6,000, all of which schools were maintained at an expense of about $4,000 per year. That in the year 1915 a vote was had to build a consolidated school building in Bingham township at a cost of $6,000 and a maintenance cost of $3,000 per year. Said affidavit further alleges that the residents and voters of the school district consisting of Herberg township had taken no interest in school matters, did not attend school meetings, and in many instances neglected and refused to send their children to school. And further alleges that a petition was filed on April 29, 1916, with the board of county commissioners of Traill county by residents of Herberg township for a separate school district, to be known as Herberg School District of Traill County, and that thereafter the county superintendent of Traill county attempted to-give notice of a hearing of said petition by publication of such notice-in the Hillsboro Banner, in the said county of Traill, such notice-being published in such paper on June 2d, 9th, 16th, 23d, and 30th,, and such notice was signed by Guri Wambheim, then county superintendent, and was dated the 31st day of May, 1916. That pursuant to such notice the county commissioners and the said county superintendent on the 19th day of July, 1916, at 2 o’clock in the afternoon of said day, met in the court room in Hillsboro, in said county of Traill, and had a pretended hearing on said petition, granted the same, and provided for the organization of the township of Herberginto a new school district, to be known as Herberg School District of Traill County. That the board of county commissioners and the said county superintendent are about to complete the organization of [330]*330said civil township of Herberg into a school district, and will do so unless restrained. That said petition for the organization of such new school district was signed by sixty-nine people, all voters in Caledonia school district, and all residing within the civil township of Herberg. That there was not on said petition name or signature ■of any person living in that part of said Caledonia school district within the limits of said townships of Caledonia or Bingham. The affidavit further sets out that there was no legal notice of said hearing published, and that the July meeting of the Board of County Commissioners was on the 3d day of July. That the creation of such new school district would work great injury and hardship to the balance of said Caledonia school district and the voters and taxpayers thereof, and injury also to the children of school age in the township of Herberg.

The return to the writ of certiorari is as follows:

The undersigned, Ole I. Hanson, J. H. Johnson, William Carson, A. C. Ulland, and T. B. Tobiason, members of the board of county commissioners of Traill county, North Dakota, and Guri Wambheim, county superintendent of schools of said Traill county, and Neis O. Lindaas, county auditor of said Traill county, pursuant to the command of the writ of certiorari in the above-entitled matter, to us directed, do hereby certify and return to the district court of the said county of Traill;

That on the 6th day of May, 1916, there was filed in the office of the county superintendent of schools of said Traill county, a petition in writing for the organization of a new' school district to be known as “Herberg School District of Traill County, North Dakota,” a copy of which is hereto annexed, marked exhibit “1.” That thereafter the said board of county commissioners and county superintendent fixed the time for hearing said petition for Wednesday, the 19th day of July, 1916, at 2 o’clock p. m., and a notice of the hearing •of said petition was given by the said, county superintendent of schools of Traill county, by publication of said notice in the Hillsboro Banner, a weekly newspaper published in the city of Hillsboro, in said Traill county, said newspaper being the newspaper nearest the said school district, and by mailing a copy of said notice to each of the school officers of said Caledonia school district; that a copy of said [331]*331notice so published and served is hereto attached, marked exhibit “2,” and a copy of the affidavit of publication of said notice is hereto attached and marked exhibit “3,” and that a copy of the affidavit of mailing said notice is hereto attached and marked exhibit “4.”

That on the 19th day of July, 1916, the said board of county commissioners met pursuant to adjournment, said meeting being an adjourned session of the July, 1916, meeting. That all members of the said board of county commissioners were present.

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Cite This Page — Counsel Stack

Bluebook (online)
164 N.W. 8, 37 N.D. 324, 1917 N.D. LEXIS 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonald-v-hanson-nd-1917.