State v. Evans

¶1delivered the opinion of the •court.

¶2The relators allege that union high school district No. 1 does not legally exist, for the reason that the *51petitions asked for the consolidation of seven school districts while the election was called to unite five districts. The defendants say that the relators cannot question the legality of the original organization of the high school district, because all of the relators reside in school district No. 25 and none of them pay taxes on property in any of the five school districts which were united by the original organization of the high school district. An examination of this phase of the controversy between the parties will not be necessary, because of the conclusions reached upon another branch of the case, and we shall therefore assume, without deciding, that as a result of the election which was held on August 25, 1914, the five school districts, numbered 35, 39, 41, 43 and 48, were legally consolidated as union high school district No. 1.

¶3The relators have challenged the defendants to show any right or authority for treating school district No. 25 as a part of union high school district No. 1; the defendants justify their acts by alleging that school district No. 25 was legally annexed to the high school district by an election which was ordered and held after the district boundary board had received a petition for annexation from the high school district and a similar petition from school district No. 25 signed by more than one third of the “30 legal voters qualified to vote at school elections in said district, and more than one third of said legal qualified voters of said school district No. 25, to wit, 14 thereof.” The relators reply by saying that the petition from school district No. 25 was only signed by 13 legal voters, because E. Bourgeois neither signed nor authorized her name to be signed to the petition and H. Henriksen was not a legal voter; and “that the number of legal voters of said district is now and was at all times herein re*52ferred to far more than three times the number of legal voters who signed said petition.” The defendants allege and the relators deny that the petition from school district No. 25 contained one third of the legal voters in that district. As a part of their case, and almost at the very beginning of the trial, the defendants, in order “to show the number of legal voters in the district prima facie,” offered, and the court received in evidence, an annual report for the year ending the third Monday in June, 1914, prepared by the-clerk of school district No. 25, filed with the county school superintendent on July 15, 1914, showing the “number of legal voters for school purposes in district at time of making this report” to be 30. The relators met the “prima facie” case of the defendants by offering parol evidence that H. Henriksen was not a legal' voter, that E. Bourgeois did not sign nor authorize her name to be signed to the petition, and that there were 41 legal voters in school district No. 25 when the petition was filed with the district boundary board. The defendants are now arguing that when the district boundary board ordered the election, that tribunal necessarily found the fact to be that the petition was-signed by a sufficient number of legal voters; that parol evidence is not admissible in a quo warranto proceeding, except where fraud is alleged, to show the fact to be that a petition is not signed by a sufficient number of legal voters; that while this proceeding may be “a direct attack on the record sustaining the organization, it is a collateral attack upon a finding of fact, ’ ’ and hence the fact found by the district boundary board is conclusive here, and therefore parol evidence was not admissible to impeach that finding unless it is tainted with fraud.

¶4*531. Before undertaking to determine the question raised by the appellants, it may be helpful to make some further explanation of the record. The petition from school district No. 25 does not recite that it was signed by one third of the legal voters, and the accompanying certificate of the chairman and clerk only certifies that the petition “contains the legal voters, at school elections of this district, to the best of my knowledge and belief.” The district boundary board did not make an express finding that the petition was in fact signed by one third of the legal voters, nor is it shown or even claimed that the board had any evidence of the number of legal voters except the petition and the remonstrance; and those two papers, when taken alone without further information, warned the board that the petition might not contain one third of the legal voters, and consequently, in the language of State v. Woods, 233 Mo. 357 (135 S. W. 932), an order calling an election would be “void for legal fraud and lack of jurisdiction” if the board had no information ■ concerning the number of legal voters except the statements found in the petition and remonstrance and later developments revealed that the petition did not contain the names of one third of the legal voters.

¶52. The writ of quo warranto and information in the nature of quo warranto have been abolished by statute, and yet only the forms have been done away with, because the remedies which were obtainable under those forms are still available by an action at law which is prosecuted in the mode prescribed by legislative enactment: Section 363, L. O. L.; State ex rel. v. Cook, 39 Or. 377 (65 Pac. 89); In re State v. Millis, 61 Or. 245 (119 Pac. 763). Authority for the maintenance of this action is found in Section 366, L. 0. L., where it is *54provided that an action at law may be maintained in the name of the state:

“1. When any person shall usurp, intrude into, or unlawfully hold, or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation either public or private, created or formed by or under the authority of this state. * # 3. When any association or number of persons act within this state, as a corporation, without being duly incorporated.”

¶63. The defendants are asserting that school district No. 25 is a part of the union high school district, and before they can successfully meet the attack made by the complaint in this action they must allege all the facts necessary to show that school district No. 25 was legally annexed to the union high school district: 32 Cyc. 1453; High, Extra. Leg. Bern. (3 ed.), § 712. And the burden of proof rests upon the defendants to show that the two districts were legally consolidated: State ex rel. v. Port of Tillamook, 62 Or. 332, 336 (124 Pac. 637, Ann. Cas. 1914C, 483); People v. Karr, 244 Ill. 374 (91 N. E. 485); People v. Baldridge, 267 Ill. 190 (108 N. E. 49); People v. McDonald, 264 Ill. 514 (106 N. E. 501, Ann. Cas. 19150, 31); 10 Ency. of Ev. 454.

¶74, 5. The election was void, and the attempted annexation comes to naught unless the petition from school district No. 25 was signed by “not less than one third of the legal voters”: Section 4194, L. O. L. The petition is jurisdictional, and unless it is signed by “not less than one third of the legal voters,” it is in legal contemplation no petition at all, and consequen cly an order calling an election on a petition which does not contain the required number of signers is like an order calling an election without any petition. The appellants argue, however, that the petition and the *55order for the election of themselves prove the sufficiency of the former, because the latter necessarily implies that the board found the fact to be that the petition was signed by the required number of legal voters; and that while a quo warranto proceeding is a direct assault on whatever may be written in the record, it is nevertheless a collateral attack on the finding of fact which is implied from the order for the election. It is true that when the legality of a subsequent act depends upon the doing of a prior act, proof of the performance of the subsequent act may carry with it, until the contrary is shown, the presumption that the prior act was correctly done: State v. Port of Tillamook, 62 Or. 332, 339 (124 Pac. 637, Ann. Cas. 1914C, 483); Anderson v. Stayton State Bank, post, p. 357 (159 Pac. 1033); Brownell v. Palmer, 22 Conn. 107; 9 Ency. of Ev. 953. But this rule of presumption is not necessarily conclusive, and does not always bar the doors to truth when the truth is different from the presumption, for, as was said in Knox County v. Ninth National Bank, 147 U. S. 91 (37 L. Ed. 93, 13 Sup. Ct. Rep. 267):

“There is a marked difference between an omission to prove one step in a prescribed course of proceeding and evidence that such step was not taken.”

¶86. This action was commenced for the express purpose of showing that school district No. 25 was not legally annexed, and the single result sought to be accomplished is the annulment of an order without which the annexation is void, and therefore a direct attack is being made upon the order: Morrill v. Morrill, 20 Or. 96, 101 (25 Pac. 362, 23 Am. St. Rep. 95, 11 L. R. A. 155). Actions involving questions like the one presented here have been referred to or treated by this court as direct attacks: State v. Port of Tillamook, *5662 Or. 332, 337 (124 Pac. 637, Ann. Cas. 1914C, 483); Splonskofsky v. Minto, 62 Or. 560, 571 (126 Pac. 15); Bennett Trust Co. v. Sengstacken, 58 Or. 333, 352 (113 Pac. 863); School Dist. v. School Dist., 34 Or. 97, 99 (55 Pac. 98). See, also, Tyree v. Crystal Dist. Imp. Co., 64 Or. 251 (126 Pac. 605). The same result has been reached in other jurisdictions: People v. Barber, 265 Ill. 316 (106 N. E. 798); People v. Peoria, 166 Ill. 517 (46 N. E. 1075); People v. McDonald, 264 Ill. 514 (106 N. E. 501, Ann. Cas. 1915C, 31); State v. Woods, 233 Mo. 357 (135 S. W. 932). Since this action is a direct attack upon the right to make the order, those who prosecute the attack can show that jurisdiction never attached, and for the purpose of showing the truth may offer evidence dehors the record: People v. McDonald, 264 Ill. 514 (106 N. E. 501, Ann. Cas. 1915C, 31); People v. Stratton, 33 Colo. 464 (81 Pac. 245); Kamp v. People, 141 Ill. 9 (30 N. E. 680, 33 Am. St. Rep. 270); State v. Clark, 75 Neb. 620 (106 N. W. 971); Territory v. Armstrong, 6 Dak. 226 (50 N. W. 832); State v. Independent School Dist. of Carbondale, 29 Iowa, 264; 32 Cyc. 1461; 2 Spelling, Inj. (2 ed.), § 1800.

¶9The district boundary board is not a court of record, but at the most it is only an inferior tribunal with special and limited powers; the statute which prescribes the procedure for annexing territory to a union high school district does not expressly provide for a hearing on the petition, and makes no mention of an appeal from an order for an election, so that there is no room to claim that another adequate remedy besides quo warranto is available; and the attack made here strikes at the right of the board to act at all and not at the correctness or wisdom of a decision which the board has made after jurisdiction is indubitably con*57ferred. These features readily distinguish the instant case from authorities relied upon by defendants like State v. Briggs, 45 Or. 366 (77 Pac. 750, 78 Pac. 361, 2 Ann. Cas. 424); State v. Port of Bay City, 64 Or. 139 (129 Pac. 496); Stettler v. O’Hara, 69 Or. 519 (139 Pac. 743, Ann. Cas. 1916A, 217); Louisville Co. v. Garrett, 231 U. S. 298 (58 L. Ed. 229, 34 Sup. Ct. Rep. 48); State v. Houser, 122 Wis. 534 (100 N. W. 964); Chicago Co. v. Babcock, 204 U. S. 585 (51 L. Ed. 636, 27 Sup. Ct. Rep. 326); Bate Cases, 234 U. S. 476 (58 L. Ed. 1408, 34 Sup. Ct. Rep. 986); Bridge Co. v. United States, 216 U. S. 177 (54 L. Ed. 435, 30 Sup. Ct. Rep. 356); Howell v. Howell, 151 N. C. 575 (66 S. E. 571); People v. Waite, 213 Ill. 421 (72 N. E. 1087). See, also, Gill v. Commissioners, 160 N. C. 176 (76 S. E. 203, 43 L. R. A. (N. S.) 293), for an explanation of Howell v. Howell, 151 N. C. 575 (66 S. E. 571), and 32 Cyc. 1425, for a statement of the holding in People v. Waite, 213 Ill. 421 (72 N. E. 1087). Quite a different question is presented when an assault is made upon an order or judgment or a court of record, or where another complete remedy is available, or when the attack is against the wisdom of a finding made by an officer or tribunal after jurisdiction has actually attached. Here the complainants strike directly against the right to make the order claiming that jurisdiction was never conferred; and they can go behind the record and show the truth. The judgment is affirmed.

¶10Affirmed. Eehearing Denied.