State ex rel. Hopkins v. School District Number 7

21 Neb. 725

• Court: Nebraska Supreme Court
• Decided: January 15, 1887
• Status: Published

Opinion

Cobb, J.

This was an original application to this court for an alternative mandamus against school district No. 7, of Sherman county, to compel the payment of certain bonds issued by said district, for the purpose of borrowing money to -build and furnish a school house therein. Due service of the application and notice on the school district, as well as upon the board of county commissioners, was acknowledged by counsel in writing filed in the case.

Plaintiff, by his petition, alleged that on the 1st day of April, 1874, and for more than five months prior thereto, school district No. 7, in the county of Sherman, was a duly and legally "organized school district under the laws of this state, and that, being so organized, the said school district did, on the 1st day of April, 1874, at a special meeting duly called and held according to law, and for the purpose of building and furnishing a school house in said school district, vote to borrow for the purpose aforesaid the sum of $3,500, and to issue the bonds of said district as evidence of said indebtedness. And afterwards, to-wit, on the 1st day of April, 1874, said school district board, being duly and regularly in session and capable of transacting business, and in pursuance of the vote theretofore had, executed the bonds of said school district, as follows, to-wit: Seven bonds of five hundred dollars each, payable six years from the date thereof, with interest at the rate of ten per cent per annum, payable semi-annually, according to the coupons thereto attached, at the banking house of Saunders & Hardenburgh, New York City. Said bonds were dated April 1, 1874, and were "numbered 1, 2, 3, 4, 5, 6, and. 7 respectively, and signed by W. 3). Wilson, director, John A. Hendricks, moderator, and H. Croston, treasurer, of said district, and countersigned and attested by the signature of E. S. Atkinson, county clerk of said county, said county clerk certifying on said bonds that the same had been registered in his office in accordance with the provisions of an act to provide for the registration of precinct, township, and school district bonds, approved February 27, 1873, and that said law had been complied with in all respects, so as to entitle the same to registration. Said bonds were placed upon the market and sold by said school district, and out of the proceeds thereof a school house was' erected and furnished in said school district, which said school district has ever since continued to use and occupy for said school district, and said school district has never had any other or different district organization than the one so as aforesaid formed. That of said series of bonds so as aforesaid issued, negotiated, and sold, the relator purchased three bonds for $500 each, designated as numbers one, two, and three, for nearly the face of said bonds, in the due course of business, before the said bonds or any part thereof became due; that no part of the principal or interest of said bonds has been paid, except the interest coupons due prior to October 1, 1877; that plaintiff is now the owner and holder of said bonds and the unpaid interest coupons, and that there now remains due thereon the sum of fifteen hundred dollars, with interest thereon from the first day of October, 1877, at the rate of ten per cent per annum, together with said unpaid coupons with interest thereon from maturity, as the same severally became due, at the rate of ten per cent per annum, amounting in all to the sum of three thousand and ninety dollars, now due and unpaid; that the district board of said school district has not at any time made a report in writing to the county clerk of said county of the amount of indebtedness of said school district, as required by law, and requested said board to levy a tax to pay said indebtedness, although by and on behalf of the relator ■ often requested so to do; that the relator has made demand of said school district to pay, the interest and principal of said bonds as the same severally became due, but that the said school district has ever neglected to pay the same or any part thereof, and that, although the relator has reported the said indebtedness of said school district to the county clerk, and to the board of county commissioners of said county, and to the treasurer of said county, and requested them to levy and collect a tax to pay the said indebtedness, yet they still refuse to do so, and upon technical grounds unknown to relator, said commissioners, said clerk, and said treasurer affirm that they would not, even though said indebtedness were reported to them by said district board, levy and collect a tax for such purpose, and that relator is wholly remediless, etc.

There was an answer filed in the case for the school district, denying that on the 1st day of April, 1874, said school district No. 7, of Sherman county, was duly and legally organized as a school district under the laws of the state'; denying that it had a corporate existence, with power to issue bonds; that it had any power whatever to issue bonds; denying that on the 1st day of April, 1874, a special meeting was held, duly called according to law, for the purpo'se of building and furnishing a school house in said district and to borrow money for such purpose, and to issue bonds of said district as evidence of said indebtedness; denying that John A. Hendricks, W. 3). Wilson, and H. Croston were, on the 1st day of April, 1874, authorized or had power to issue bonds described in said plaintiff's petition; denying that said pretended bonds were registered in accordance with the provisions of an act of the legislature to provide for the registration of precinct, township, and school district bonds, approved February 27, 1873; denying that said law had been complied with in all respects, so as to entitle said bonds to registration; denying that said bonds were placed upon the market and sold by said school district, and out of the proceeds) thereof a school house was erected and ftirnished in said district, but alleging the fact to be that said district received no value whatever for said bonds; denying that Frank Hopkins, the relator, purchased a bond of $500, designated as No. 1 of said series, in the due course of business, before the same became due; and denying that he is now the legal owner and holder of said bond and said unpaid coupons, or ever was the legal owner of said bond and said unpaid coupons, or that he ever had any interest therein, or ever paid any money therefor; alleging that said district did not borrow any money from the relator or from any person or persons as by law it might have done, or that said pretended officers of said school district had any authority to issue any bonds under an act to establish a system of public instruction in the state of Nebraska, approved February 15, 1869, or acts amendatory thereof, etc.

By stipulation of parties, signed by counsel for the relator on the one part, and for the school district on the other part, there was presented by the relator, and received in evidence, copies of the proclamation of the director of said school district, calling an election in said school district for the purpose of voting upon the proposition to issue the bonds of said school district, in the sum of $3,-500, payable in six years from the date .thereof, in New York City, with interest at 10 per cent, payable semi-annually, and to authorize the levy of a tax, each year, to pay the interest as the same should become due, and to authorize the school board of said district to contract for- the building of a school house in said district, and for purchasing a site therefor. Also of the certificate of John A. Hendricks and Thomas H. Crosten, judges, and ’William D.. Wilson, clerk of said election, certifying that upon said proposition to issue $3,500 in bonds to build a school house in said school district, there were cast at said election six votes for said proposition and no votes against, it. Also the certificate of W. D. Wilson, director of said district, and John A. Hendricks and Thomas H. Crosten, members of the school board of said district, certifying ta the holding of an election in said school district on the first day of April, 1874, for the purpose of voting three thousand five hundred dollars in bonds, for the purpose of building a school house and purchasing a site therefor, and that “The majority of the votes cast, in said district, were- ‘ unanimously ’ in favor of the bonds, being six votes polled for the bonds, and none against the bonds.” Also, the certificate of W. D. Wilson, director of said school district, “that at a meeting of the qualified voters of said district, held at the house of W. D. Wilson, on the 1st day of April, 1874, which meeting was duly called, and notice thereof given as. by law required, by posting up notices of said meeting twenty days before the holding thereof, in three of the most public places in said district, the question of issuing the bonds of said district for the purpose of raising money to build and furnish a school house in said district to the amount of thirty-five hundred dollars, in the sum of $500 each, due in six years from date, bearing interest at ten per cent, payable semi annually, was duly submitted to the qualified voters, and carried, there being cast in favor of said question six votes, and against it no votes. * * * That the existing debt of the said district is nothing; that the population of said district is about fifty souls, and that the said bonds are issued by the officers, thereunto authorized by law, and that their signatures are genuine.”

It is recited in the said stipulation that it is made for the purpose of using the said copies “ as testimony, instead of the plaintiff or defendant being obliged to take depositions to prove the same.”

The relator also introduced his own deposition, in which he deposes that he is the owner of the school district bonds upon which this action is brought, describing the same; that he purchased the said bonds before they were due, to-wit, on or about the 1st day of April, 1878, of Arnold Gregory, of Barre, Orleans county, New York, in good faith and for a valuable consideration, to-wit, the sum of fifteen hundred dollars; that he is still the owner of the said bonds, and that the whole of the principal of the said three bonds, together with the interest, as represented by the coupons remaining attached to the said bonds, is still due and unpaid.

Upon an inspection of the three bonds and eighteen interest coupons, offered in evidence by the relator and received by the court, it appears that there was due thereon, on the first day of the present term of this court, for principal and interest of said bonds and coupons the sum of three thousand and ninety-two dollars and eighty-nine cents ($3,092.89).

An endorsement on each of said bonds signed by E. S. Atkinson, then county clerk of said county of Sherman, shows that said bonds were duly registered in the ■ bond registry of said county on the 9th day of April, 1874.

It will scarcely fail to be observed that the petition contains several quite unnecessary allegations, the issue joined by the denial of which, by the respondent, will be treated as immaterial. But of the above class, probably, cannot be included the allegation of the corporate existence of the defendant school district, at the date of the vote upon and issuance of the bonds, as set out in the petition. The plaintiff having alleged in the petition that the defendant was a duly organized school district under the laws of the state at the date of the election and issuance of the bonds, and that allegation being denied by the defendant school district, or not being admitted, either directly or by failure to deny the same, it was necessary for the plaintiff to prove it. Under the law as it stood at the date of the proceedings involved in the cáse at bar, the best evidence of the corporate existence of the school district was, doubtless, the records of the county superintendent’s office, together with the records of the district itself, in case it is one of those districts formed after the original division of the county into school districts. And being the best evidence, they were probably the only evidence of such fact admissible, except by agreement of parties. But in the case at bar copies of the several official certificates of the officers of the district having been presented and received by the court as evidence, upon the agreement and stipulation of the parties, and the school district appearing in the case as a corporation, without alleging or in any manner developing the date of the commencement of its corporate existence, subsequent to the date of the alleged corporate acts upon which its liability is claimed to arise, such evidence must be held to prove not only the facts therein certified to, but also the official character of the persons so certifying, and the existence of the corporation from which such official existence was necessarily derived.-

In this connection it should be observed that the bonds introduced in evidence each contains on its back a certificate of the county clerk of its registration by him, under the provisions of the act of February'27,'1873. Gen. Stat., 883. This, in the absence of objection to its competency, is some evidence of the corporate existence of the school district purporting to have issued such bonds.

It must be conceded that the evidence of the due publication of the notice of the special meeting of the electors of said school district, at which the said bonds were voted, is not as formal as could be desired, but the certificate of the director of the district, thát said notice was posted up in three of the most public places in the district twenty days before the day of such special meeting and election, comes before the court as evidence, by stipulation of the parties, and therefore must be accepted as evidence of this, the most important fact which it contains.

The said certificates of the director and other officers of said school district, received in evidence' upon the stipulation of the parties as aforesaid, must be accepted as sufficient evidence of the fact of the holding of said election in said district, for the issuance of bonds, of the result of said election in favor of the issuance of the bonds, of the amount thereof, and of their actual execution by the officers of said district. The presentation of said bonds and coupons by the relator, together with his deposition of the fact of their purchase by him in good faith, and their present ownership by him^ sufficiently proves the allegation of the petition that the said bonds had been placed on the market and sold by the said, district, as well as their purchase and ownership by the plaintiff. There being no allegation of fraud or bad faith in the issuing of said bonds, in the answer, there is no necessity of proof of want of notice on the part of the plaintiff when he purchased them.

Neither in the original or amended petitions does the relator pray for a peremptory mandamus, but in each case prays for an alternative mandamus. Yet the school district having appeared and answered to the merits, and having stipulated for the reception of certain evidence going to the merits of the case, and having accepted service of notice upon which depositions have been taken, and the cause having been in court for more than two years, and finally submitted on the merits, it is deemed unnecessary to require a further answer on the part of the defendant.

The plaintiff, both in his original and amended petitions, alleges that he “ has reported the said indebtedness of said school district to the county clerk, and to the board of county commissioners of said county, and to the county treasurer of said county, and requested them to levy and collect a tax to pay said indebtedness, yet they still refuse so to do; anduj>on technical grounds unknown to petitioner, the said commissioners and said clerk and treasurer affirm that they would not, even- though said indebtedness were reported to them by said district board, levy and collect a tax for such purpose.”

The county commissioners of Sherman county having by counsel accepted service of the petition, and waived copy and notice, and all irregularities and informalities, and W. A. Wilson, county treasurer, and John Wall, county clerk, having personally signed and.joined in such acceptance and waiver, they may, by a liberal construction, be considered parties to this proceeding, although not named in the caption.

A peremptory mandamus will therefore issue to said school district, the said board of county commissioners, the county clerk, and treasurer of said county of Sherman, commanding the said school district and the school district board thereof, to make a report in writing to the county clerk and board of county commissioners of said county of the amount of indebtedness of said school district, upon the bonds and coupons of the relator, as hereinbefore ascertained ■and found, and of the amount of tax necessary to be levied to pay said indebtedness; commanding said board of county commissioners to levy a tax upon all taxable property of ■said school district No. 7 sufficient to pay said indebtedness, together with interest on two thousand eight hundred and ■eighty-nine and Ty¡¡- dollars thereof from the 4th day of January, 1887, at the rate of ten per cent per annum, and ■on two hundred and three and dollars thereof at the rate of seven per cent per annum, or, in the event that such tax should be so large as to be, in the opinion of said board of ■county commissioners, grievously burdensome, that they levy a tax sufficient to pay one-third of said indebtedness the first year, and continue to levy an equal amount annuAlly thereafter until all of said indebtedness and interest thereon as aforesaid is paid in full; commanding said county treasurer to collect such tax and retain the same in a special fund, and so often as one hundred dollars are paid in, to pay the same to the clerk of this court in liquidation of ■said indebtedness of the relator as aforesaid, and commanding the s.aid county clerk, as well'as the said county treasurer and board of county commissioners, and each of them, “that they and each of them severally and collectively do -and perform each and every act necessary to be done and performed in order to levy and collect said tax, and pay •said indebtedness of the relator as aforesaid.

Judgment accordingly.

The other judges concur.