Consolidated Independent School District v. Martin , 170 Iowa 262 ( 1915 )

Evans, J.

The plaintiff corporation purports to be a consolidated independent school district organized about one year ago under the provisions of See. 2794-a of the Code. The defendant’s challenge of illegality in the organization is based upon four specifications which we will consider in order.

1. Schools and school district election: notice: computing time. I. It is first claimed that the notice of election, wherein the consolidated district was voted, was insufficient and therefore illegal, in that such notice of election was not posted “for not less than ten days next preceding day of the meeting.” The notices were posted on March 18th. The election was posted on March 18th. called to meet on March 28th and was held on such date. It is urged that this was only nine days “next preceding the day of the meeting.” Our statute provides that in computing time the first day shall be excluded and the last day included. Code Sec, 48, sub-section 23. Under this rule, the notice given should be deemed a ten days’ notice. It is urged, however, that the statute under consideration (Sec. 2746) required that the ten days’ notice be given “preceding” the day of the meeting. Of course, all notice must precede the event; otherwise it is not notice at all. The emphasis of the' statute at this point is not upon the word “preceding” but upon the words “next preceding.” In other words, the period of notice must extend up to the day of the meeting. Compliance with this provision serves to bring the meeting to the attention of the voter at the very time that he is called upon to vote. For instance, a posting of notices for a period of ten days some months previous to the date of the election would not be a compliance with this requirement. We are clear that the computation of time at this point is governed by Code Sec. 48, as above stated. To the same effect, see the following cases: Bonney v. Cocke, (1883) 61 Iowa 303; Church v. Lacy & Co., (1897) 102 Iowa 235; Hannah v. Green, (1904) 143 Cal. 19, 76 Pac. 708; Cosgriff v. Election Commissioners, (1907) 151 Cal. 407, 91 Pac. 98; Stroud v. Consumers’ Water Co., (1894) 56 N. J. L. 422, 28 Atl. 578; Omaha Water Co. v. Schamel, (1906) 147 Fed. 502, 78 C. C. A. 68; McGinn v. State, (1895) 46 Neb. 427, 65 N. W. 46, 50 Am. St. 617, 30 L. R. A. 450; White v. German Ins. Co., (1884) 15 Neb. 660, 20 N. W. 30; State ex rel. Lewis v. Eggleston, 34 Kans. 714, 10 Pac. 3; Coe v. Caledonia & M. R. Co., 27 Minn. 197, 6 N. W. 621; Brady v. Moulton, 61 Minn. 185, 63 N. W. 489; King v. State, 33 Tex. Crim. Rep. 547, 28 S. W. 201; Winston v. State, 32 Tex. Crim. Rep. 59, 22 S. W. 138; State ex rel. Weber v. Tucker, 32 Mo. App. 620; Leonard v. Saline Ct., 32 Mo. App. 633.

The defendant relies on Robinson v. Foster, 12 Iowa 186, as holding a different rule. The ease, however, is not applicable. It relates to the time of service of an original notice'. The method of computing the time of service of an original notice is governed by Code Sec. 3517 and requires the exclusion of both the first and the last day in such computation. The cases, therefore, which relate to original notices are without application to the case at bar.

2. Schools and SCHOOL DISTRICTS : consolidation : petition: sufficiency. II. It is urged by defendant that the petition upon which the consolidation was effected was defective and therefore void. This contention is based upon two specifications: (1) That the petition was signed and approved by the county superintendent before it was signed by the voters; and (2) because such petition recited a condition which was intended as an inducement to the voter and which was beyond the contemplation of the statute and was not permitted by the statute.

As to the first specification, it is the contention that the petition should have been approved and signed by the county superintendent after it was signed by the voters and not before. It is enough to say here that such petition was approved and signed by the county superintendent both before and after it was signed by the petitioners. This was a clear compliance with the statute.

3. Schools and SCHOOL DISTRICTS : consolidation ; petition: assumed location of schoolhouse : effect. The second specification relates to a proviso in the petition which called for the location of the proposed schoolhouse at or near Johnston Station. This location appears to have been deemed by the petitioners as the most suitable location for the convenience of the inhabitants of the district. Its inclusion in the petition was not required by the statute. Nor do we find any provision of the statute which was in any way violated by its inclusion in such petition. Whether it could have any binding effect upon the district is a question which is not involved.

4. Schools and SCHOOL DISTRICTS : consolidation : election : separate vote in villages. III. It is next urged that the consolidated district as proposed and voted included several villages and that no provision was made for separate voting in such villages. The territory involved is rural territory adjacent to the city of Des Moines. It is penetrated by an interurban railway running from Des Moines to Perry. It does not appear that there' is any group or collection of houses within said territory. Within the ordinary definition, therefore, there was no village involved. It does appear that some owners of farms had platted considerable tracts of land into acre lots with a view, doubtless, of selling the same in the future to prospective inhabitants. Reliance at this point is had upon Sec. 638 of the Code, which contains the following:

‘ ‘ Town sites platted and unincorporated shall be known as villages.”

One of the tracts thus subdivided was known as “Johnston’s Acres” and included sixty acres. Upon this sixty-acre tract three houses stood, widely separated. Another tract of eighty acres thus subdivided was known as “Johnston’s Acres No. 2.” Upon this tract there were five houses, widely separated. Johnston Station consisted of an intersection of the interurban railway with the highway and was a stopping place for the interurban trains for the purpose of unloading and receiving passengers. Near by was a blacksmith’s shop and a little store. It does not appear that there were any residences. It is perhaps enough to say that these localities were not “town sites.” They were not platted as such by the owners nor held forth as such by anyone. We do not think they were “villages” within the contemplation of See. 2794-a.

5. Schools and SCHOOL DISTRICTS : consolidation : size of remaining corporation : prohibition. IY. Lastly it is urged that by the formation of the new consolidated district certain subdistriets were reduced in their territory to less than four sections. That is to say, the new district included territory of a certain district township. Two of the sub-districts of such township were left with insufficient territory as alleged. The statute in question provides as follows:

“No school corporation from which territory is taken to form such a consolidated independent corporation shall, after the change, contain less than four government sections, which territory shall be contiguous and so situated as to form a suitable corporation.”

A subdistrict of a school district township is not a “school corporation. ’ ’ The subdistriets in question, therefore, are not covered by the inhibition of the statute. The situation doubtless calls for a rearrangement of the remaining subdistricts, and this is within the power of the appropriate officials of the district township.

"We reach the conclusion, therefore, that none of the specifications of illegality made by the defendant can be sustained. The order of the district court is therefore— Affirmed.

Deemer, C. J., Preston and Weaver, JJ., concur.