Hodges v. Snyder

¶1The defendants in this case are acting as the officers of the purported Erwin independent consolidated district No. 1 of Kingsbury county and the superintendent of schools of that county. Plaintiffs are resident property owners and taxpayers of the territory embraced within said purported school district. Prior to the acts complained of by plaintiffs, the said territory *171consisted of school districts Nos. 31, 32, 34, 35, and 5° °f said county. During the months of March and April, 1919, certain proceedings were had by defendants, to the end that, on the 16th day of April, 1919, the superintendent of schools of said county made and signed an order in which he declared that school districts Nos. 31, 32, 33, 34, and 50 be, and are, consolidated into a single district to be known as Erwin independent consolidated district No. 1 of Kingsbury county. Why district No. 35 was omitted from the order does not appear. On the 8th day of April, 1919, an election wlas held in said purported consolidated school district,- at which election a board of directors of such district 'was elected. Thereafter, and during the months of May and June, 1919, said board took certain proceedings with a view of issuing bonds to the amount of $97,000 for the purpose of purchasing a school site and erecting a school building thereon, in the city of Erwin. Thereafter, on the 4th day of June, 1919, an election was held in said purported- district for the pui-pose of deciding whether said bonds should be issued. This election authorized the issuance of such bonds. Thereupon plaintiffs commenced this action, and asked to have defendants enjoined and restrained from purchasing said school site or erecting the said school building, and from in any manner interfering with the schools as they existed in the said several school districts, or issuing or selling said bonds, or any part thereof; and that all the proceedings had for the establishment of such purported consolidated school district and the issuing of said bonds be declared null and void.

¶2At the commencement of the action the court issued an order to show cause, on a certain day specified, why a temporary injunction should not be issued, and which order contained a meantime restraining order. To plaintiffs’ complaint, defendants interposed, a general demurrer. The demurrer was sustained, and an order to that effect made and entered by the court. The court also at the same time made and entered a separate order vacating the meantime restraining order and denying the pendente lite injunction. From this order plaintiffs took an immediate appeal, and also appealed from the order sustaining defendants’ demurrer. Both appeals are presented on the same brief.

¶3[1] It is contended by respondents that appellants, in the *172preparation of their 'brief, have not complied with rule No. 4 of this court (170 N. W. vii)', and that for that reason their brief should not be considered. In this contention respondents are clearly wrong. The portion of the rule that is claimed appellants have violated reads as follows:

“Each assignment, or group of assignments, if they present a like question, should be followed by the argument and authorities relied upon to sustain the alleged claim, of error.”

¶4While the appellants’ assignments are stated in separate paragraphs and separately numbered, they all present like questions. True, the making of the order vacating the temporary restraining order is separately assigned as error, but the setting aside of that order followed as a matter of course when the demurrer to the complaint was sustained. The substance of both orders could more appropriately have been incorporated into one order, and then one assignment would have been sufficient, and but one appeal would have been necessary. The assignments should be treated as a group of assignments presenting like questions.

¶5[2]Another question of practice is raised by respondents that must be disposed of before the merits of the case can be reached. Plaintiffs commenced the action in their own name as the real parties in interest, asking for equitable relief by injunction. Defendants contend that this is ' not the proper remedy, but that plaintiffs should have proceeded by an information in the nature of quo warranto. The reason, of course, as claimed by defendants, why plaintiffs should not be allowed to maintain this action is that, this being an action for equitable relief on the ground that the school district was not legally organized, it involves a collateral attack on the proceedings and the election to organize the district; and it is contended that such matter can be inquired into only in quo warranto procedings. If this action involved merely an’ attack on the regularity of the procedings and the election leading up to the organization of such' school district, we might concede, though we do not decide, that quo warranto procedings would be the only remedy. But this action goes further 'back than the proceedings to organize the district or the regularity of the said election: It questions the very right to organize a consolidated or independent district out of the territory *173involved, and a suit in equity in the name of the real parties in interest is the proper remedy.

¶6The case of Brick Co. v. Grank Forks, 27 N. D. 8, 145 N. W. 725, cited and relied upon by appellants is not analogous to this case. In that case there was no question as to the legal existence of the corporation involved, nor that the defendants were the legal officers thereof. The complaint in that case was that the corporation was trying to exercise its authority beyond its territorial jurisdiction. Neither is the case of Nelson v. School District, 181 Iowa, 424, 164 N. W. 874, cited and reliecd upon by respondents, analogous to this case. That case was determined upon the theory that a de facto public corporation existed; but in this case it is claimed that there was not even a de facto corporation.

¶7[3] It is the contention of appellants that the purported Erwin Independent consolidated school district No. 1 was not legally organized, and never existed as a corporate entity, for the reason, among'other things, that, chapter 194, Laws 1913, did not contemplate the inclusion of an independent school district in a consolidated district. This matter has been thoroughly considered by this court in Isaacson v. Parker, 176 N. W. 653, and again in the same case on rehearing (178 N. W. 139), where the above contention of appellants wias sustained. This is the construction adopted by the Code commission, and, when they incorporated the law into the Code, they eliminated the words, “school districts of any kind,” and inserted in lieu thereof the words, “tw'o or -more common school districts.” 'Section 7569, Rev.. Code 1919. But immfediately after the adoption of the Code and before it went into effect, the Legislature amended this section by the enactment of chapter 170, Laws 1919, which amendment provides that “two or more school districts of any kind may consolidate” in any manner they see fit. This act, respondents contend, went into effect immediately upon its approval; that this was prior to any of the acts of consolidation complained of in this case; and therefore that consolidation was legal, under the provisions of this act, even though it might not have 'been authorized by the original act of 1913. It is true, chapter 170, Laws 1919, contains the following emergency clause:

“Whereas, this act is necessary for the immediate support of *174the state government and its existing institutions, an emergency is hereby declared to exist and this act shall be in full force and effect from and after its passage and approval.” Section 2.

¶8But it has already been declared to be the law of this state that the attachment of an emergency clause to a legislative act does not put it into imknediate effect unless it comes within the exception named in section i, art. 3, of the Constitution. State v. Whisman, 36 S. D. 260, 154 N. W. 707, L. R. A. 1917B, 1.

¶9[4] Prior to the amendment of section 1, article 3, of the Constitution, all legislative power of the state, subject to the veto of the Governor, was vested in the Legislature. Under the provisions of section 22 of article 3, no act of the Legislature could take effect until 90 days after the adjournment of the session at which such act was passed, except in case of an emergency to be declared by a two-thirds vote of all the members of each house, when and in that case such act took effect immediately upon its passage and approval, and such declaration by the Legislature was conclusive upon that question. lAjt the general election of 1898, section 1 of article 3 was amended to read as follows:

“The legislative power of the state shall be vested in the Legislature which shall consist of a senate and house of representatives, except that the people expressly reserve to themselves … the right to require that any law's which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, [and the] support of the state government and its existing public institutions. …”

¶10By the adoption of this amehdmlent, the people reserved to themselves the right to pass upon the wisdom or expediency of any law enacted by the Legislature, unless such law falls within one of the tw’o classes excepted by the amendment, provided that any law will go into effect in accordance with the provisions of section 5111, Code 1919 unless prior- to that time a referendum-petition, as provided by section 5069, Revised Code, has been filed. The exception found in section 1 of article 3,- names two classes of laws that are not subject to the referendum: First, such laws as are declared by the act itself to be necessary for *175the immediate preservation of the public peace, health, or safety of the state; and, second, such laws as are necessary for the support of the government and its existing public institutions. A law may be necessary for the preservation of the public peace, health, or safety, and still be subject to the referendum, unless the Legislature declares it necessary for the immediate preservation of the public peace, health, or safety; and it- will go into effect in accordance with the provisions of section 51 n, Rev. Code 1919, but in the meantime it will not be subject to the referendum. If the Legislature declares such a law necessary for' the imimediate preservation of the public peace, health, or safety, and attaches to such law an emergency clause as provided for in section 22, art. 3, of the Constitution, then such law will go into effect immediately or at such time thereafter as the Legislature may fix, and in the meantime it will not be subject to the referendum. But a law that is necessary for the support of the state government or its existing institutions is not subject to the referendum in any event, and will go into effect in accordance with the provisions of section 5in, Rev. Code 1919, unless the Legislature declares the existence of an emergency, under section 22, art. 3, Const., in which case such law will go into effect immediately or at such time as the Legislature may fix. The operation of such laws cannot be suspended nor postponed by the filing of a referendum petition. State v. Clausen, 85 Wash. 260, 148 Pac. 28, Ann. Cas. 1916B, 810.

¶11Whether a law is in its substance and effect a law for the preservation of the public, peace, health, or safety, or for the support of the state government and its- existing public institutions, is a question for the courts to decide, subject to the rule that in case of doubt the legislative will should be given effect.

¶12Whether an emergency exists which makes it necessary that a law belonging to either one of these two classes should go into imimediate effect is a question for the Legislature, to be conclusively evidenced by a declaration of emergency under the provisions of section 22, art. 3, of the Constitution.

¶13Whether the necessity is immediate, where a law is for the preservation of the public peace, health, or safety, even though the emergency clause be not attached, is a question for the Legislature, to conclusively evidenced by a declaration in appropriate language.

¶14*176[6] In State v. Bacon, 14 S. D. 394, 8.5 N. W. 605, this court held that the declaration of an emergency by the- Legislature' was conclusive as to any law without regard to the referendum ■clause in section 1. This was on the theory that section 22 was still in force, that the Legislature could put any law into immediate effect ¡by attaching an emergency clause thereto, and that a law could not be referred after it had gone into effect. But this case was overruled in State v. Whisman, supra, where it was held that the attachment of an emergency clause, -would not put a law. into immediate effect, unless such law came within one of the classes that are excepted from the referendum clause. The effect of the referendum clause therefore was to amend or modify section 22 of article 3 by implication, so that it is only such laws as are not subject to the referendum clause that-can be put into immediate effect by the declaration of an emergency.

¶15[7] It is not contended by respondents, and could not be seriously contended, that the support of.the state government and its existing public institutions depended upon chapter 170, Laws of 1949, going into effect immediately upon its passage and approval. If merely attaching the emergency clause would put any law into immediate operation and prevent a vote thereon under the referendum clause, then the Legislature could attach the emergency clause to any law that could secure a two-thirds vote of the Legislature, and in that way practically nullify the referendum clause in the Constitution. For the Legislature to say that the “support of the state government and its existing institutions” depended upon the immediate operation of chapter 170, Laws 1919, was a mere absurdity. Chapter 170, Laws of 19x9, did not go into effect until the 1st dajr of July, 1919.

¶16[8] We hold that the attempt to organize the Erwin consolidated school district -was not authorized by any law then in force, and that the attempted organization was wholly fútil.

¶17The order appealed from is reversed.

¶18(dissenting.) I concur fully in what is said in the .foregoing opinion in relation to the construction given sections 1 and 22, art. 3, of our Constitution; but I dissent from the result reached by my colleagues. The grounds for my dissent will be found,stated in my dissenting opinion upon the rehearing in Isaacson v. Parker, 178 N. W. 140.