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Attorney(S)

F.J. Funke, for appellants. Sinkler Brekke, for respondents.

Judges

NUESSLE, J.

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Case Summary: Olson et al. v. Coalfield School District No. 16 et al.

Factual and Procedural Background

The relators (Jonas Olson, Perry Smithberg, Lars Dalager, and Oscar Morseth) brought a certiorari proceeding challenging the establishment of a joint district high school formed pursuant to sections 1192–1194, Compiled Laws 1913. The relators are electors and taxpayers in Brown School District No. 40 and Kermit Special School District, both in Divide County, North Dakota. Coalfield School District No. 16 is contiguous to those districts and contains the village of Noonan; the village of Kermit is in Kermit Special School District. Prior to June 1924: Brown maintained four schools and had over 60 school-age children; Kermit maintained four schools and had over 60 school-age children; Coalfield maintained one school building with five separate rooms, each with its own teacher, and had over 100 school-age children.

On June 7, 1924, special elections were called in the three districts to vote on establishing a joint district high school. A substantial majority in each district voted in favor. The respective boards then proceeded to take steps to establish the high school. The district court entered judgment in favor of the defendants. The relators appealed. The Supreme Court of North Dakota reversed and remanded. After the filing of the opinion, respondents petitioned for rehearing and for a remand to take further testimony based on an asserted estoppel by acquiescence. The court, on rehearing, reaffirmed its legal conclusions but directed that the final judgment declare the proceedings void while denying any other affirmative relief to the relators and preserving the defendants' right to litigate estoppel in an appropriate proceeding.

Legal Issues Presented

Whether Coalfield School District, which maintained one school building containing five rooms each taught separately, satisfied the statutory requirement (four or more schools) to establish or participate in establishing a district high school under §§ 1192–1194, Comp. Laws 1913.
Whether the statutory scheme embodied in §§ 1192–1194 (authorizing establishment of district high schools by vote) applies to special school districts (such as Kermit) or only to common school districts.
Whether the election held in the three-district union (Brown, Coalfield, and Kermit) could be treated as effectively creating a joint high school for only two of the districts (Brown and Coalfield) when the proposition submitted to voters was for a three-district joint high school.
Raised on rehearing: whether the respondents may rely on estoppel by acquiescence (based on plaintiffs' alleged delay and conduct after the June 1924 proceedings) to prevent the relators from obtaining relief, and whether further testimony should be taken on that issue.

Arguments of the Parties

Relators' (Appellants') Arguments

Coalfield School District had only one school (one building) and therefore did not satisfy the statutory prerequisite of "four or more schools" required by § 1192; thus it could not establish a district high school either alone or jointly.
The statutes authorizing establishment of district high schools by vote (§§ 1192–1194) apply only to common school districts; Kermit is a special school district, so those statutes do not apply to it and the proceedings involving Kermit are invalid.

Respondents' Arguments

Coalfield's organization (having five rooms each taught by a different teacher) meets the practical requirement of multiple schools; whether it is considered one school or five is immaterial and the district is within the statute.
The language "In any district" in § 1192 indicates the statute applies to all districts, including special school districts such as Kermit; therefore the elections and resulting actions are valid.
On rehearing, respondents additionally argued that the relators are estopped by acquiescence from attacking the proceedings—because plaintiffs knew of and acquiesced in actions (incurring indebtedness, levying taxes, employing teachers, erecting buildings) taken after the votes in June 1924 and did not object until February 1925—so granting relief would work manifest injustice.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sorenson v. Tobiason, 48 N.D. 924, 188 N.W. 41	Authority that special school districts are governed by the article relating to such districts insofar as subject matter affects them.	Used to support the conclusion that special school districts are governed by their own statutory provisions and thus §§ 1192–1194 (procedures for common districts) do not apply to special districts.
State ex rel. Nicholson v. Ferguson, 23 N.D. 153, 134 N.W. 872	Cited as an additional authority concerning governance of school districts and the statutory scheme (listed as "See also").	Referenced as supporting authority in the court's discussion of the distinct statutory treatment of common and special school districts.
Rosatti v. School Dist., 52 N.D. 931, 204 N.W. 833	Cited as an additional authority concerning school district governance (listed as "See also").	Referenced as supporting authority for the court's interpretation that special districts are governed by separate statutory provisions.
State ex rel. Walker v. McLean County, 11 N.D. 356, 92 N.W. 385	Cited in connection with the rehearing discussion concerning estoppel and the proper procedure for litigating such defenses.	Used to justify the court's view that the defendants' estoppel claim could be litigated in an appropriate proceeding and that remand solely for additional testimony on that issue was not warranted given the pleadings.
Greenfield School Dist. v. Hannaford Special School Dist., 20 N.D. 393, 127 N.W. 499	Cited regarding authorities on estoppel and related procedural considerations.	Referenced to support the court's statement that the question of estoppel should be litigated in an appropriate proceeding and that the present record did not permit remand for further testimony on that issue.

Court's Reasoning and Analysis

The court proceeded in two principal steps in its analysis.

First, addressing Coalfield's eligibility under § 1192's requirement of "four or more schools" and the prerequisite of sixty or more persons of school age, the court noted that Coalfield indisputably had more than one hundred persons of school age. The court recognized that Coalfield maintained a single school building but with five separate rooms, each with its own teacher and devoted to one or more grades. The court held that whether the Coalfield arrangement is technically considered one school or five is immaterial. Reading §§ 1192–1194 together, the court concluded the legislature intended that single common school districts having the required number of schools and persons of school age could establish high schools, and that where a single district did not meet requirements it could join with adjacent districts; consequently, involved districts taken together could satisfy the statutory requirements. Thus there was no merit to the relators' contention that Coalfield's single-building organization disqualified it for participation solely because it might be called "one school."

Second, the court analyzed whether §§ 1192–1194 apply to special school districts. Examining chapter 12 of the Political Code and the historical origin of the statutes (chapter 62, Sess. Laws 1890), the court found a persistent legislative distinction between common school districts and special school districts. The statutes governing special districts (article 19 of the original act, now article 9 of chapter 12) explicitly provide that cities, towns, and villages having boards of education are governed by those provisions, and those provisions empower boards of education to establish and maintain high schools whenever they deem it appropriate—without a vote of the electors. By contrast, §§ 1192–1194 (the provisions authorizing establishment of high schools by vote) prescribe procedures applicable to common school districts and require elector voting. The court emphasized statutory differences in governance structures (common districts have three-member boards of directors under § 1151; special districts have five-member boards of education under § 1245) and concluded that applying §§ 1192–1194 to special districts would produce structural incongruities (e.g., unequal composition of joint boards). Reading the statutes in context and considering their origin, the court determined that §§ 1192–1194 were intended to apply to common school districts only, and that special districts are to be governed by the special-district provisions.

Because Kermit is a special school district, the court concluded the boards did not have jurisdiction to call the elections under §§ 1192–1194 with respect to Kermit, and that proceedings taken under those elections were without statute and void. The court also rejected the defendants' argument that the affirmative votes in Coalfield and Brown could stand by themselves to establish a high school for the two districts because the proposition submitted to voters was for a three-district union; establishing a two-district union would be a different proposition requiring its own submission to the electors.

On rehearing the respondents sought remand to take further testimony on estoppel by acquiescence. The court declined to remand for further testimony because of the issues framed by the pleadings and the matters actually litigated. Nonetheless, the court ordered that the final judgment should be entered adjudging the proceedings complained of to be void but denying plaintiffs any other affirmative relief, and preserving the defendants' ability to litigate estoppel in an appropriate proceeding.

Holding and Implications

Holding: The judgment of the district court is REVERSED AND REMANDED. The Supreme Court directed that the district court enter judgment adjudging the proceedings complained of (the elections and actions taken under them to establish the three-district joint high school) to be void, but denying the plaintiffs any other affirmative relief.

Direct implications for the parties:

The elections and subsequent proceedings undertaken to establish the joint high school involving Brown, Coalfield, and Kermit are adjudged void because the statutory procedure invoked (§§ 1192–1194) applies to common school districts and not to the Kermit special school district, and therefore the boards lacked jurisdiction to order such elections including Kermit.
Coalfield's internal organization (one building with five rooms each taught separately) does not preclude it from participating in a joint arrangement under the statutes when the districts taken together meet statutory prerequisites.
The relief granted is limited: the relators obtain a judgment declaring the proceedings void, but they are denied any other affirmative relief; defendants retain the right to litigate, in an appropriate proceeding, the defense of estoppel by acquiescence.

Broader legal consequence stated by the court: the opinion interprets §§ 1192–1194 as part of a statutory scheme that distinguishes between common and special school districts—treating the procedures for establishing high schools by vote as applicable to common districts while special districts are governed by separate statutory authority to establish high schools through their boards of education. The court preserved the procedural posture so that estoppel claims may be pursued later in an appropriate forum.

Source: Opinion of the Supreme Court of North Dakota (Nuessle, J.), filed October 30, 1925; opinion on rehearing January 29, 1926. Summary prepared strictly from the provided opinion text.

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JONAS OLSON, Perry Smithberg, Lars Dalager, and Oscar Morseth, Appellants, v. COALFIELD SCHOOL DISTRICT NO. 16 OF DIVIDE COUNTY, NORTH DAKOTA, and A.H. Anderson, Oscar Lindstrom, and C.O. Larson as Board of Directors of Said School District; Brown School District No. 40 of Di

NUESSLE, J.

The relators, Olson, Smithberg, Dalager, and Morseth, began this proceeding in certiorari to challenge the establishment of a joint district high school pursuant to the provisions of §§ 1192-1194, Comp. Laws 1913. After hearing had, the district court ordered judgment in favor of the defendants. From the judgment entered in accordance with the terms of this order the relators perfected the instant appeal.

There is no controversy as to the essential and controlling matters of fact in the case. The relators, Olson and Smithberg, are electors and taxpayers residing in Brown school district No. 40, and relators, Dalager and Morseth, electors and taxpayers residing in Kermit special school district, in Divide county, North Dakota. Brown school district comprises all of congressional township 162, range 95, excepting parts of sections 3, 4, 9, and 10 of that township which is organized as Coalfield school district No. 16. Both Brown school district and Coalfield school district are common school districts. Kermit special school district comprises the territory included in congressional township 163, range 95, and fractional congressional township 164, range 95. The three districts are contiguous. The village of Noonan is located in Coalfield school district. The village of Kermit is in Kermit school district. The two villages are about two miles apart. Prior to June, 1924, Brown school district had a school population of more than sixty and maintained four schools. Kermit school district maintained four schools and more than sixty children of school age resided therein. Coalfield school district maintained one school building containing five separate rooms with a teacher in each room, and more than one hundred children of school age resided in the district. The defendants, Shirley, Kimball, Nordman and Stiner are the election board of Brown school district, and the other individual defendants are members of the board of education and the directors of the several defendant school districts wherein they respectively reside. On June 7th, 1924, a special election was called in each of the three districts for the purpose of voting upon the question of establishing with the others a joint district high school. The statutes, pursuant to which this election was called, and which must control in the determination of this appeal, are § 1192, Comp. Laws 1913, which provides:

"In any district containing four or more schools, and having an enumeration of sixty or more persons of school age residing therein the board may call, and if petitioned so to do by ten or more voters in the district, shall call a meeting of the voters of such district, in the manner prescribed in section 1185 to determine the question of establishing a district high school. If a majority of the voters at such meeting vote in favor of establishing such high school, the meeting shall further proceed to select a site therefor, and to provide for the erection or purchase of a school building or for the necessary addition to some school building therefor. Thereupon the board shall erect or purchase a building or make such addition for such high school, as shall be determined at such meeting and shall establish therein a district high school containing one or more departments, and employ teachers therefor."

and § 1194, Comp. Laws 1913, providing that:

"Two or more adjacent school districts may join in the establishment and maintenance of such high school, or for a graded school or for both, when empowered so to do by a majority of the voters in each district, at a meeting called and held as provided for in this section (1192), in which case the building and furniture occupied and used for such high school or graded school shall belong to the districts so uniting and all the costs of maintaining such school or schools, including the wages of teachers and all necessary supplies shall be paid by such districts in proportion to the assessed valuation of the property in each; and the employment of teachers therefor, and the management, control and grading thereof shall be vested in the joint boards of such districts, subject to the approval of the county superintendent of the county in which such districts are located."

At the election so held on June 7th, a substantial majority of the voters in each of the school districts voted in favor of establishing the proposed joint district high school. Thereafter, the boards of the respective districts proceeded to take the further necessary steps to establish such high school. Whereupon the relators, challenging the propriety and regularity of the action thus taken, sought to review the same by this proceeding in certiorari. As grounds for challenge, the relators advance two propositions: First, that Coalfield school district has but one school and therefore is not qualified to establish a district high school either separately or in common with other school districts and, second, that the provisions of the statutes heretofore quoted are not applicable to Kermit school district for the reason that that district is a special school district, while the statute contemplates that a district high school may be established only in common school districts.

It is conceded that there were, at the time of the election, more than one hundred persons of school age residing within Coalfield school district, so that the prerequisite of the statute in that respect is unquestioned. But the relators contend that there was but one school in the district, whereas, the statute requires that there be four. There is no dispute but that Coalfield school district while it maintained but one school building, had within that building five rooms, each in charge of a different teacher, and each devoted to one or more grades not taught in any of the other rooms. So relators insist that there was but one school in the district; that the statute contemplates four, and, therefore, Coalfield school district was not eligible, either to establish a high school of its own, or to enter into any joint enterprise with an adjacent district to establish such a high school. We are of the opinion that it is immaterial whether the Coalfield school be considered as one school, or as five. Consideration of the statutes makes it apparent that the legislature intended to provide a means whereby single common school districts having the required number of persons of school age and the required number of schools, might establish high schools. The requirements as to the number of persons of school age and the number of established schools were imposed as matters of precaution against improvidence and expense. But in order that the need for such schools might be met, the legislature also contemplated that where a single district could not comply with such requirements, or for any other reason desired to do so, it might join with an adjacent district or districts in establishing a high school, and in such case no single district need have the full statutory requirements, provided that all of the districts taken together possessed them. Sections 1192-1194 were enacted as one section (Sess. Laws 1890, § 86, chap. 62), and when thus read together it seems too plain for argument that such was the legislative intent. There is, therefore, no basis for the first of the two propositions advanced by the relators.

There remains then the single question as to whether the application of the statutory provisions heretofore quoted is restricted to common school districts. Careful study of chapter 12 of the Political Code, Comp. Laws 1913, and its origin and history impels an affirmative answer. Chapter 62, Sess. Laws 1890 was comprehensive in its scope. It is the ancestral statute from which practically all of the school laws now in effect touching the public school system have descended without substantial change or modification. The greater part of the act dealt with school matters generally and with the organization and establishment of common school districts. Article 19 (now article 9 of chapter 12 of the Political Code, Comp. Laws 1913), however, related to special school districts. Thus it appears that the legislature in 1890 when it enacted chapter 62, plainly intended to make provision for two sorts of school districts, to wit: common school districts and special school districts. That distinction has been continued throughout all subsequent legislation. It contemplated that special school districts might be organized whenever the proposed districts included a city or incorporated town or village. The first section of article 19 of chapter 62, Sess. Laws 1890, now in force as § 1229, Comp. Laws 1913, provides that all cities, towns, and villages having boards of education shall be governed by the provisions of the article. And this court has held that when a special school district is organized it is governed by the article relating to such districts, in so far, at least, as that article deals with subject matter affecting the special district. Sorenson v. Tobiason, 48 N.D. 924, 188 N.W. 41. See also State ex rel. Nicholson v. Ferguson, 23 N.D. 153, 134 N.W. 872; Rosatti v. School Dist. 52 N.D. 931, 204 N.W. 833. Under the terms of both the original and the present statutes, and consistent with the apparent distinction between common school districts and special school districts, different provisions were, and are, made for the organization, establishment, financing, and government of common and special school districts. Common school districts are administered by boards of directors consisting of three members. Special school districts are administered by boards of education consisting of five members. The article governing special districts specifically defines the powers of boards of education, and among other things, provides that such boards shall have power, and it shall be their duty, "to establish and maintain a high school whenever in their opinion the educational interests of the corporation demand the same, in which such course of study shall be pursued as shall be prescribed or approved by the state superintendent, together with such additional courses as said board of education may thereafter deem advisable to establish." Obviously, the statute contemplates that boards of education of special school districts shall have the power, and imposes upon them the duty, to establish high schools without a vote of the electors of such districts. On the other hand, the statute, §§ 1192 and 1194, supra (Sess. Laws 1890, § 86, chap. 62), contemplates that high schools may be established in common school districts when, and after, the electors of such district or districts have voted upon and in favor of the proposition. That is, the act provides for the establishment of high schools in special districts in one manner and in common school districts in quite another manner, and having provided these several manners in which high schools may be thus established, the reasonable conclusion is, that each is intended to be exclusive of the other. See also Sorenson v. Tobiason, supra. The defendants insist that by reason of the words "In any district" as used in the first sentence of § 1192, supra, there can be no question but that it was contemplated that the statute should apply to "all districts." But in the light of the various other statutory provisions, and their origin and history, we think that these words must be read to mean, "in any common school district." In this regard, the provision for the government of joint district high schools as contained in § 1194 supra, is significant, for it is therein provided that the management, control, and grading thereof, shall be vested in the joint boards of the districts entering into the compact. Yet, as heretofore indicated, the statute, § 1245, Comp. Laws 1913, provides that special school districts shall be governed by boards of education consisting of five members, while the boards of common school districts are made up of three members. See § 1151, Comp. Laws 1913. Thus there would be inequality in the joint board from the start were the provisions of §§ 1192 and 1194 to be applied to special school districts. Considering the whole statute it is impossible to avoid the conclusion that §§ 1192 et seq., applying only to common school districts, and that, therefore, the several boards of Kermit special school district, Brown school district and Coalfield school district were without jurisdiction to order elections for the purpose of having the electors of their several districts vote upon the proposition of establishing the proposed joint high school, and that any proceedings had by reason of such elections are without the statute and void.

The defendants contend, however, that in any event both Coalfield school district and Brown school district are within the purview of the statute; that both of these districts voted by large majorities for the establishment of a joint high school, and therefore, in so far as they are concerned the elections are valid and effective, and a high school for those two districts may be established by virtue thereof. We think, however, that this contention cannot be sustained. The proposition as submitted to the voters was whether a joint high school should be established by the three districts. To establish one for the two districts would be a wholly different matter. Whether the electors of the two districts would favor such a proposition is purely conjectural and can be determined only by submitting the proposition to them at elections called for that purpose.

For the reason above set out the judgment of the District Court must be reversed and the cause remanded with directions to enter judgment in accordance with the prayer of the relators' petition. It is so ordered.

CHRISTIANSON, Ch. J., and BURKE, JOHNSON, and BIRDZELL, JJ., concur.

NUESSLE, J. (on rehearing).

After the foregoing opinion was filed, the respondents petitioned this court for a rehearing and for a remand of the cause to the district court for the taking of further testimony. Petitioners do not challenge the legal conclusion reached in the original opinion, but base their application wholly upon the proposition that the circumstances in fact are such that to grant the relief as prayed for in the appellants' complaint will work manifest injustice. They contend that in fact the plaintiffs and appellants are estopped by acquiescence from taking exception to the regularity of the proceedings had with reference to the establishment and erection of the joint district high school; that the proceedings attacked were had in June 1924; that plaintiffs and appellants then knew and at all times since have known just what was done and what was contemplated; that, notwithstanding, plaintiffs permitted the various school districts to proceed to establish the joint district high school to incur indebtedness, to levy taxes, to employ teachers, to proceed with the moving and erection of buildings, and to enter into other undertakings in connection with the project, and made no attempt to voice their objections until February, 1925, after all of these things had been done; that to grant the relief prayed for by the plaintiffs will work injustice to the various participating districts and their inhabitants. On the other hand, the plaintiffs insist that estoppel, or the facts upon which an estoppel might be founded, were not pleaded; that the only questions raised and considered in the district court where the two questions of law which were disposed of in the original opinion; that those were the only questions raised and argued in this court on appeal, and that therefore this court cannot now properly remand the case for the taking of further testimony.

It seems to us that in view of the pleadings in the case and the issues as made thereby and considered and determined by the trial court, that it is not now possible to remand the cause for the taking of further testimony. We do think, however, that the judgment to be finally entered herein should be without prejudice to the right of the defendants to have litigated and determined on its merits in an appropriate proceeding the question of estoppel now sought to be raised. See State ex rel. Walker v. McLean County, 11 N.D. 356, 92 N.W. 385, and cases cited; Greenfield School Dist. v. Hannaford Special School Dist. 20 N.D. 393, 127 N.W. 499, and authorities cited.

Accordingly, the judgment appealed from will be reversed and the cause remanded with directions to the district court to enter judgment adjudging the proceedings complained of to be void, but denying the plaintiffs any other affirmative relief.

CHRISTIANSON, Ch. J., and BIRDZELL, BURKE, and JOHNSON, JJ., concur.

OLSON v. COALFIELD SCHOOL DIST