DocketNumber: No. 27232.
Judges: Corn, McNeill, Osborn, Riley, Bayless, Welch, Phelps, Gibson, Busby
Filed Date: 11/24/1936
Status: Precedential
Modified Date: 10/19/2024
This is an action in the nature of quo warranto originally brought in the district court of Sequoyah county by the state on relation of the county attorney to test the validity of the formation of school district No. 73 in said county, and seeking the restoration of the territory comprising said district to union graded school district No. 1, out of whose territory it was carved by the county superintendent in the formation of said district No. 73. The action is taken against the members of the school board of district No. 73.
The defendants demurred to the plaintiff's petition on the following grounds: (1) That the petition shows that district No. 73 has been recognized as a school district since the year 1921 (15 years), and that plaintiff is estopped from denying its legal existence; (2) that plaintiff had the right to appeal from the order of the county superintendent creating said district in a direct proceeding, and failing to appeal, the order is final and the question cannot be raised in a collateral attack on said action of the county superintendent; (3) that the petition does not state sufficient facts to constitute a cause of action; and (4) that plaintiff's petition does not state a cause of action at law or in equity. The demurrer was sustained, and the plaintiff brings this appeal. The parties will be given the trial court designation herein.
The petition states that union graded school district No. 1 was organized and formed out of school districts numbered 46, 54, and 55; that after said union graded school district No. 1 had been formed and had issued bonds in the sum of $18,000, the county superintendent, "without proper petition, without notice, without election, without jurisdictional acts or facts, without jurisdiction, without authority of law and contrary thereto," attempted to change said district by carving therefrom certain described portion of its territory and organizing the same into the pretended district No. 73, and that this was done without taking cognizance of, or without making any adjustment or apportionment of, the outstanding obligation, and that by reason of said irregularities in the formation of said district the organization of said district is illegal and void ab initio.
In the case of School District No. 44 v. Turner,
"Manifestly the county superintendent has no power or jurisdiction to change or alter the boundaries of a school district until the statutory provisions have been strictly complied with. The filing of a petition signed by at least one-third of the qualified electors of such district, and the giving of 20 days' notice are clearly jurisdictional facts. The language of the statute is clear, positive and mandatory. It leaves no discretion with the county superintendent. It follows that the attempted change of the boundaries of the district by the county superintendent, before a proper petition was filed and the statutory notice was given, was an arbitrary exercise of power, wholly unauthorized, and therefore absolutely null and void."
In the case of Cleveland v. School District No. 79, Grady County,
"We believe this statute is mandatory, and both the petition and notice were prerequisites and jurisdictional, and where both or either are wanting a school district could not be organized; therefore, the action of the superintendent in attempting to form the district was wholly without authority and void."
The organization of the school district being void because of the irregularities set out in the petition, there is but one question left for consideration, and that is whether the doctrine of estoppel is applicable to a situation of that kind. In 43 C. J. 101, the doctrine as affecting municipal corporations is discussed as follows: *Page 238
"While neither the doctrine of laches nor of estoppel is ordinarily available as against the government in respect of a public right, and in particular cases the facts have been held insufficient to constitute an estoppel, nevertheless, on the ground of public policy and interest, the state may be precluded from attacking the franchise of a municipal corporation on the ground of illegality in its incorporation where it has failed to raise the question for a considerable period of time, especially where during such period it has acquiesced in and recognized the existence of the municipality."
The doctrine of estoppel by laches as applicable to municipal corporations is discussed and applied in State v. Leatherman,
"The state may by long acquiescence and continued recognition of a municipal corporation, through her officers, state and county, be precluded from an information to deprive it of franchises long exercised in accordance with the general law."
In that case Mr. Justice Eakin quoted from the case of the People v. Maynard,
"In public affairs, where the people have organized themselves, under color of law, into the ordinary municipal bodies, and have gone on, year after year, raising taxes, making improvements, and exercising their usual franchises, their rights are properly regarded as depending quite as much on the acquiescence, as on the regularity of their origin, and no ex post facto inquiry can be permitted to undo their corporate existence. Whatever may be the rights of the individuals before such general acquiescence, the corporate standing of the community can be no longer open to question."
The case of Armstrong v. State ex rel.,
The foregoing case is lacking in analogy to the case at bar. Had the state stood by and permitted the new county to exercise its franchise over a period of years, during which time it had issued bonds, made public improvement, and levied taxes for state and municipal purposes, an entirely different situation would have existed, and such an acquiescence would have made the analogy complete.
Ordinarily, estoppel is raised by answer as an affirmative defense, and is pleaded with great particularity, but where the facts constituting an estoppel to the maintenance of the action appear on the face of the petition, the same may be raised by demurrer. Witham v. Gage,
The judgment of the trial court sustaining the demurrer to plaintiff's petition is affirmed.
McNEILL, C. J., OSBORN, V. C. J., and RILEY, BAYLESS, WELCH, PHELPS, and GIBSON, JJ., concur, BUSBY, J., absent.