Child v. Colburn , 54 N.H. 71 ( 1873 )

Foster, J.

The determination of this case depends upon the validity and effect of the proceedings of the voters of the town of Temple, in the effort of a majority of them to abolish the school districts in the town, and avail themselves of the privileges conferred by the act of July 2, 1870, ch. 8, entitled “An act enabling towns to abolish school districts in certain cases.”

This act, in its first section, provides that any town may at any time abolish the school districts therein, “ and shall thereupon forthwith take possession of all the school-houses, laud, apparatus, and other property owned and used for school purposes, which said districts might lawfully sell or convey,” and that the property so taken shall be appraised, and a tax levied upon the whole town therefor, &c.

Section 2 provides that when any town which has been divided into school districts shall have abolished them, it shall be considered as one district, and have all the powers and liabilities of the same.

Sections 3 and 4 provide that “ such towns shall, at their annual town-meeting in March, elect a board of education,” and should any town neglect to choose such board, the selectmen shall, on or before the 20th of April ensuing, appoint.

Section 5 continues the separate existence of the former districts for certain purposes.

Section 6 is as follows: “ This act shall take effect and be in force only in such towns as by a vote at a legal meeting shall adopt its provisions ; ” and section 7 repeals all acts inconsistent with this act.

These are all the provisions material to the present inquiry.

Under an article in the warrant, calling the annual March meeting in 1873, “ To see if the town will vote to redistrict its school districts, or what action they will take in relation thereto,” the town of Temple, at that meeting, voted to adopt the provisions of that act; and the principal question now presented is, Was the article in the warrant, relating to school districts, sufficient under the statute to render the action of the town valid?

The General Statutes, ch. 35, sec. 2, require that the subject-matter of all business acted upon at any town-meeting shall be distinctly stated in the warrant, and nothing done at any meeting shall be valid unless the subject thereof is so stated.

In Tucker v. Aiken, 7 N. H. 113, it was held that an article in the warrant, “ To see what sum of money the town will vote to raise for the support of schools, of the poor, repairing bridges and highways, for the payment of the just debts of the town, and/or other legal purposes,” states with sufficient precision the subject-matter to be acted on under it; and per Parker, J., “if the article had been in terms ‘ for the payment of town charges,’ or, with still greater particularity,‘ for the payment of the town officers and all other necessary expenses for which the town may be liable,’ the inhabitants would have had no more precise and definite information of the subject-matter than they had by the article as penned.” “ It is nowhere enacted how specific the articles of the warrant shall be, further than this: they must contain the intent and design of the meeting, and the subject-matter of all business to be considered and done. If the article under consideration gives information of the subject-matter to be acted on, there was a compliance with the provisions of the statute; and we think there can be no doubt of this.” 7 N. H. 125,126.

But it is said by the petitioner’s counsel that there is a material difference between the requisitions of the statute interpreted in Tucker v. Aiken (namely, the act of June 28, 1827, Laws, ed. of 1830, page 441), and the provisions of the General Statutes applicable to the case before us. It is claimed, because the former act merely required that the selectmen should insert in the warrant the intent and design of the meeting and the subject-matter of the business to be done, while the present law requires that the subject-matter shall be distinctly stated, that a greater degree of precision in stating the nature of the business to be acted upon is required now than was required in the days of Tucker v. Aiken.

We think, however, that nothing is added to the force and intent of the former law by the terms employed in the later enactment. The former law doubtless intended, equally with the present, that the article should be expressed with sufficient precision to give the people definite information of the subject-matter to be acted on. It was so regarded by the court in Tucker v. Aiken; and we are at a loss to see how any-tiling more can be required or expected under tbe terms of tbe present law than that the people shall have “ definite information of the subject-matter to be acted on.” By the terms of the article in question, the people were notified that the subject-matter to be considered at the meeting was the redistricting of the school districts in the town.

The first clause of the article, taken by itself, is, “ To see if the town will vote to redistrict its school districts.” Under this article the town voted u That the town adopt the provisions of Pamphlet Laws of 1870, ch. 8, page 409,” and “ that the selectmen appoint the board of education.”

Now, the act of 1870 has no reference whatever to any such subject-matter as is expressed-in this warrant, — that is, the redistricting of the school districts; it relates solely (as its title imports) to the entire abolition of school districts and the school district system, and the substitution of a board of education for the superintending and prudential committees required by that system.

We do not think the town could legally pass these votes under this warrant. It is true that, under an article in the warrant “ To see if the town will alter the boundaries of any of the school districts in town,” two districts may be united. Converse v. Porter, 45 N. H. 395. But there is no analogy between such a case and the present. The court there hold no more than this, per Bellows, J.: “ The article certainly gives notice that the limits of any and every district ma.y be acted upon and altered; and under that it would seem, according to Perkins v. Langmaid, 34 N. H. 321, that existing districts might be united, and, if so, clearly the limits of all might be altered and defined.” Now, although this may be all very well as a proceeding under the provisions of the law which enables towns to alter the limits of school districts — Comp. Stat., ch. 73, sec. 2 — and although the practical effect- may be to incorporate the whole town into one district, still, we apprehend that, whether under an article like that in Converse v. Porter, “ To see if the town will alter the -boundaries of any of the school districts,” or under the present article, l! To see if the town will vote to redistrict ” (which means, clearly, to district anew, and at all events, therefore, in some form to preserve the district system), it would be impossible to hold, that authority was conferred to abolish all the districts, and to provide for a system and a board of officers not recognized or contemplated by the law, prior to the act of 1870.

It is very manifest that the article in question does not distinctly state the subject-matter of the business to be voted upon. We can hardly suppose that a voter, ignorant in fact of what was contemplated, would ever imagine, by reason of any information conveyed by this warrant, that the subject-matter of the business to be acted upon was the abolition of the school districts and the adoption of the act of 1870.

For want, therefore, of requisite precision in the statement of the article in the warrant, the proceedings of the town-meeting must be regarded as invalid. It is hardly necessary to remark that the last clause of the article, in its extremely vague and indefinite character, adds nothing to the validity and effect of the former, or of any portion of it.

At a legal meeting, held Api'il 12, 1863, under an article in the warrant “ To see if the town will reconsider their action relating to the appointment of agents under the law of New Hampshire, entitled £ an act to abolish school districts in certain cases,’ and return to the old school district system,” the town voted that the article be indefinitely postponed. This action was of no effect whatever. It may be an indication of the opinion of that meeting that the act of 1870 had been adopted, but it cannot, by any quasi ratification, legalize the invalid action of the annual March meeting.

On the fifth of May, at a legal meeting, under an article in the warrant “ To see if the town will adopt the act of the New Hampshire legislature, entitled £An act enabling towns to abolish its school districts in certain cases,’ and found in the Pamphlet Laws of 1870, page 409, and chapter 8,” the town ££ voted in the affirmative, 26 to 22,” and then proceedednto choose a board of education.

By the sixth section of the act of 1870, the act is made to take effect in such towns as by vote at a legal meeting shall adopt its provisions. This act, then, took effect on the fifth of May, and its effect was the abolition of the school districts. It could “take effect” in no other way.

The purpose and intention were to give the adoption of the act the effect of such abolition. The first section of the act, in its first line, contains the entire provision of the law with regard to the change of the system of education in the town: all the rest of the act is merely directory of the manner in which the new system shall bé operated. Section first begins with these words: “Any town may at any time abolish the school districts therein.” And when the town voted to adopt this provision of the law, the districts were ipso facto abolished. It would have been supererogatory to have voted in express terms to abolish the districts, after the town had voted to adopt and thereby give effect to an act which could have no other effect than to abolish the districts. Sutton Manf’g Co. v. Sutton, 108 Mass. 106; Perkins v. Crocker, 109 Mass. 129.

We think no voter, who could read and understand the statute law, as all are supposed to do, could have been deceived by the terms of the article in the warrant, or have failed to understand that to vote affirmatively upon it was to vote for the abolition of the school districts.

To our apprehension, “ the subject-matter of the business to be voted upon ” was “ distinctly stated in the warrant ” with sufficient specification and precision.

Section 1 provides that a town, having abolished the school districts therein, “ shall thereupon forthwith take possession of all the school-houses, apparatus, and other property owned and used for school purposes,” &c., which property shall be appraised, &c. Now, it does not appear that any attempt has been made to take such possession or make such appraisal; but this provision of the law is directory merely, and is not a condition precedent or a proviso, without which the law either does not take effect or ceases to be in force.

But the town clearly exceeded its powers in the attempt to elect a board of education at the meeting on the fifth of May. Such election, by the express terms of the act, can take place only “ at the annual town-meeting in March.”

The action of the town-meeting on the fifth of May could not by retrospective effect give validity to the proceedings of the previous annual meeting, under which alone the selectmen have attempted to exercise the power conferred by section 4 of the act of 1870, of appointment of a board of education by their vote of the nineteenth of March. The act of 1870 was not then in force. It follows that there is not and has never been a board of education in the town of Temple, under the act of 1870; and whatever has been done by the defendants, assuming thus to act, although done in good faith, was wholly unauthorized and void.

The petitioner prays that the selectmen be commanded to appoint a superintending committee or a board of education, and also to apportion the school money to the several districts, and that they be forbidden to pay over any of said school money to the said Fisk, Bacon, and Heald. But we have seen that by the terms of the law it is only in the case of the failure of the town to elect a board of education “ at their annual town-meeting in March,” that the selectmen can be required to appoint such a board.

They cannot be required to apportion the school money to the several districts, nor to pay it over to the said Fisk, Bacon, and Heald, for two good and sufficient reasons: first, the districts having been abolished, there is no more than one district in town ; that, of course, is not the fifth district, whose representative in this proceeding the petitioner is; second, it would be idle to forbid the selectmen to pay over the school money to Fisk, Bacon, and Heald, because these gentlemen received the whole of it long ago, and have expended the greater portion of it.

The petition for a mandamus must therefore he dismissed.

Whether the petitioner or any other inhabitant of Temple may have any different remedy for his alleged grievances is not a question before us. The result indicated by the views herein expressed is, that, although the action of the town in this matter has been in the main but a series of blunders on account of which’the petitioner has no remedy by virtue of this writ, still, the act of 1870 is now in force in the town, and its very simple machinery may probably now be put in operation, with what degree of advantage or detriment to the educational interests of the inhabitants remains to be seen.