Voyen v. Eagle School District

181 N.W. 82, 47 N.D. 174, 1921 N.D. LEXIS 86

• Court: North Dakota Supreme Court
• Decided: January 4, 1921
• Status: Published

Opinions

Robinson, J.

On March 6, 1920, in Eagle school district, of Rich-land county, there was held an election to vote on the question of constructing a schoolhouse. A majority of four persons voted in favor of the construction. On April 9, 1920 — thirty-four days after the election — appellants served a notice to contest the election. This is an appeal from a judgment dismissing the contest on the ground that the law docs not permit of the contest, and that the notice of contest was not served in time, that is, within twenty days after the election.

The grounds of contest are: (1) That the election was conducted in too small a room; (2) that no booths or compartments were prepared in which to mark the ballots; (3) that no railing was provided to separate the electors marking the ballots; (4) that by reason of such failure the electors were unable to prepare and mark their ballots secretly. The objections are all trivial. The election of a country school district is a kind of a family affair. The electors are few. They meet and freely discuss the affairs and take no pains to conceal their beliefs. The usual meeting place is a schoolhouse and the desks are used for marking ballots ; but if there is no schoolhouse or church building, the election may be at the residence of some elector. In either case the construction of booths would be considered ridiculous.

The notice of contest was served under the statute providing for contesting a general election. Comp. Laws, § 1046. Obviously this statute does not apply to such a school district election, and under the statute the notice of contest must be served within twenty days after the election, and that was not done in this case. But appellant contends that under § 943 the time limit for serving such a notice of contest is forty days. Section 943 reads: “An action to contest the right of any person to any office or to annul and set aside such election may be commenced within forty days.” But that section does not apply. A notice of contest is not the commencement of an action.

“An action is an ordinary proceeding in a court of justice, by which one party prosecutes another party for the enforcement or protection of a right, or the redress or prevention of a wrong, or the punishment of a public offense.” Section 7330. “Every other remedy is a special proceeding.” Section 7331.

In any view of the case, the court was clearly right in dismissing the contest.

Judgment affirmed and case remanded, forthwith.