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contended that it was not sufficient upon fendant in error to appear and defend the which to find a verdict by a jury, or a finding replevin cases for E. T. Patton & Co. by of fact by the court. In the case of Stratton L. De Steiguer, president of the National v. Hawks, 43 Kan. 542, 23 Pac. 591, it was Bank of Guthrie, was a sufficient authorisaid, in a case upon which the contention was zation and employment on behalf of the as to whether or not a deed was delivered, National Bank of Guthrie, and the bank that the "direct evidence bearing upon it was will be bound thereby; and, even if there conflicting. Many circumstances were shown were any doubt of such employment by De from which strong inferences arose tending Steiguer as president, the acceptance of the to support both theories. The judgment ren- services of the attorney would estop the dered by the trial court necessarily includes bank from denying compensation for the a finding that there was a delivery of the services so rendered. Canal Co. v. Swan, 5 deed to Thompson, because, if the trial court How. 83; Insurance Co. v. Oakley, 9 Paige, had been of the opinion that there had been 496; Boom Co. v. Lamson, 16 Me. 224; Weeks, no delivery of the deed, the inevitable result Attys. at Law, $ 190. The conclusion of the would have been that the judgment would trial court that the plaintiff is entitled to rehave been rendered in favor of the party cover the sum sued for from the defendant now here complaining. It is true beyond all is therefore affirmed. All of the justices conqualification that there is some evidence to cur, except DALE, C. J., not sitting, having support the finding contained in the judg

presided below. ment that there was a delivery of the deed to Thompson; hence we cannot disturb the judgment for the reason urged, without en

(27 Or. 57) tirely disregarding well-established rules." VAUGHN et al. v. SCHOOL DIST, NO. 31 To a similar effect are Mullaney v. Humes, OF TILLAMOOK COUNTY et al. 48 Kan. 368, 29 Pac. 691; Gardner v. King, (Supreme Court of Oregon. March 4, 1895.) 37 Kan. 671, 15 Pac. 920; Harrington v. SCHOOL DISTRICTS - Tax ACTION TO ENJOIN Stone, 39 Kan. 176, 17 Pac. 853. Evidence CLERK OF DISTRICT-RIGHT TO AMEND MINUTES was adduced below upon all the points in

-Bonds - VoTE OF DISTRICT - RESIGNATION OF

DIRECTOR-To Wuom MADE. cluded in the findings of fact made by the

1. The motives of taxpayers in bringing a trial court, and accordingly such findings will

suit to enjoin the collection of a tax will not be not be disturbed. Light v. Canadian Co. considered. Bank (Okl.) 37 Pac. 1075.

2. In an action to enjoin the collection of a

school tax in favor of which the taxpayers have The second proposition is one not involved

voted, the court will not consider the number in the determination of this case. By the of persons in favor of or opposed to the tax at fourth subdivision of section 5136 of the Re- the time the suit was commenced, nor how much vised Statutes of the United States, in which

the school district may gain or lose by enjoin

ing the collection of the tax. the corporate powers of national banking

3. As the clerk of a school district has the associations are enumerated and specified, it right to amend the minutes of a district meeting is provided that they shall have power:

so as to make them conform to the proceed“Fourth. To sue and be sued; complain and

ings, a demurrer to the part of the answer of a

school district, in an action to enjoin the collecdefend in any court of law and equity, as tion of a school tax, which asks the court to fully as natural persons." In order to the allow the clerk to correct the minutes of the due and proper exercise of the power herein

meeting at which the tax was voted, was prop

erly sustained. provided for, a national bank has the power

4. Hill's Code, $ 2602, subd. 3, provides that to employ and pay attorneys skilled in the a school district, by a majority vote of its votlaw to “complain and defend" in the courts

ers, may, to build a schoolhouse, contract a

debt in behalf of the district not to exceed twoin any suit to which the bank may be a party.

thirds of the proposed expenditure. Held, that This power is not limited by the character of a vote to issue bonds in excess of two-thirds of the complaint or defense. If the particular the cost of a proposed schoolhouse is sufficient bank in question should bring a suit to en

authority for the issue of bonds up to two

thirds of such cost. force a transaction, or to defend one like the

5. Where a notice of a meeting of the votone at bar, in which the authority of the ers of a school district stated that the object bank to engage in such a transaction is in- thereof was to levy a tax of $14, mills for buildvolved, it would not affect the right of the

ing a schoolhouse, and a tax of 142 mills for the

teachers' fund, a motion at the meeting that attorney to recover compensation for services

"we proceed to vote on the 10-mill tax” suffirendered at the request of the bank in rela- ciently indicates that the tax referred to was tion to such suit. The power to complain

that mentioned in the notice. and defend is not limited to suits in which

6. The resignation of a director of a school

district, made to and accepted by the voters of the bank may be successful, nor is the right the district, is of no effect, but it must be made of the attorney to recover limited by the to a member of the board, who, under Hill's character of the questions which may arise

Code, $ 2604, may call an election to fill the in the case. Upon the findings of fact made

vacancy. by the court below the defendant in error

Appeal from circuit court, Tillamook coun. acted under an agreement made by him ty; George H. Burnett, Judge. with the president of the National Bank Action by W. N. Vaughn and others of Guthrie on behalf of the National Bank against school district No. 31 of Tillamook of Guthrie. The authority given to the de- county and others to enjoin the collection of a school tax and the issue of district bonds. their resignations as directors, which were, Judgment was rendered for plaintiffs, and upon motion, accepted, but they continued defendants appeal. Judgment modified. thereafter to act as such officers, and gave

This is a suit to enjoin the issue of school- orders to the school clerk, who, in pursuance district bonds and the collection of a school thereof, certified the said assessment roll and tax, The facts show: That the defendant delinquent list to the defendant W. W. ConJ. J. Pye, the clerk of school district No. 31 dor, the county clerk of said county, wh of Tillamook county, by order of the board made a transcript thereof, and attached a of school directors of said district, duly warrant thereto, commanding the defendant posted notices calling a special meeting of John Edwards, the sheriff of said county, to the legal voters to convene at the school- collect the delinquent taxes charged in said house in said district on April 9, 1892, for list. The plaintiffs, in substance, allege the following objects: "To levy an eight and that they were and are resident taxpayers one half mill tax (842) for the purpose of of said school district, and bring this suit, raising one-third of the amount proposed to not only for themselves, but for all others be expended in the building of a new school- having a like interest in the questions at ishouse in this district, and a one and one-half sue, who are too numerous to be made par. mill ta for the teachers' fund and inci- ties hereto; hat no tax was levied, nor was dental expenses, making a ten-mill (10) tax any vote taken to levy a tax, at the meeting in the aggregate; also for the purpose of of the electors of said district held April bonding this district for the sum of $3,000." 11th, or at any other time in 1892; that the That said voters met pursuant to the notice, defendants Morton and Dean having resignand, without doing any business, adjourned ed their respective offices, and the defendant to meet on the 11th of said month, at which S. G. Custis, the other school director, hav. time they again convened, and, after duly ing been absent, the said district was withorganizing, the record made by the clerk out a school board, and no authority existed shows, among other things, that they trans- to order the district clerk to certify the deacted the following business: "Moved by linquent roll to the county clerk; that the Ed. Walker, and sec led, that we proceed said school board wrongfully selected a site to vote on the ten-mill tax by the ayes and for the proposed schoolhouse on a high hill, nays. Carried: Ayes, 43; nays, 3. [Here difficult of access, and far from the center of follow the names of those who voted for and said district, and, unless restrained, the diagainst the motion.] Motion by J. 11. rectors would erect a schoolhouse on said Bridgeford, seconded by Hooper Dyer, that site; that the transcript of said assessment this district issue bonds for the sum of three roll, prepared by the county clerk, created a thousand dollars ($3,000) for the purpose of cloud upon the title to their lands, and, unbuilding a schoolhouse in this district, to run less restrained, the county clerk would defor a term of ten years, and that the bonds liver said transcript to said sheriff for the be placed on the market, and disposed of at collection of the taxes listed therein; and the lowest rate of interest offered. Carried. pray that the defendants might be enjoined Motion by A. M. Hare that the school board from collecting said tax and from issuing be authorized to purchase the schoolhouse said bonds. The defendants, after denying site mentioned, consideration one dollar, and these allegations, for a separate defense albuild and furnish a new schoolhouse, and lege that the plaintiffs constituted only a the sum of three thousand dollars be ex- small portion of the taxpayers of said dispended for said purpose. Seconded by sev. trict, a majority of whom were in favor of eral, and carried.” That, within 30 days said tax; that there was no schoolhouse in said after the adjournment of said meeting, the district, and, if the injunction were granted, clerk made an assessment roll of all the tax

it would lose the site, valued at $2,500, which able property within the district, and deliv

had been donated, together with improveered it to the board of directors, which gave

ments made thereon, of the value of $100; notice that on May 21st, at the schoolhouse

that plaintiffs' objection to said tax was in said district, it would sit as a board to

based upon their desire to divide the disequalize the assessment so made; and on the trict; that the minutes of the meeting of 24th of said month it returned said roll to April 11th do not fully show the action of the clerk, with a warrant attached thereto

the legal voters as clearly as they should; commanding him to collect the ten-mill

and pray that the district clerk might be al. school tax voted on April 11th, and return

lowed to correct the record to make it corsaid rol, with the record of his collections

respond with the facts. A demurrer to the indorsed thereon, within 60 days. That the

separate defense having been sustained, and clerk, having given notice that said taxes

the defendants refusing to further plead, a were due and payable at his office, collected a

decree was rendered perpetually enjoining portion thereof, and, within the time re- the collection of said tax and the issue of quired, returned said roll, with the amount

said bonds, from which decree the defendcollected and delinquent indorsed thereon.

ants appeal. That on July 28th, at a special meeting of the legal voters of said district, the defend- Wirt Minor, for appellants. W. M. Ram. ants W. C. Morton and A. Dean tendered sey, for respondents.

MOORE, J. (after stating the facts as April 11, 1892, was, the duly elected, qualiabove). It is contended that the court fied, and acting clerk of said district. As erred in sustaining the demurrer to the such officer, he had authority, and it was separate defense. The facts set up as new his duty, while in office, without leave of the matter in the answer, except the application court, to correct the record of the district for leave to amend the record, may have meeting if it did not correspond with the presented valid reasons to the school board, actual proceedings of that date, and hence and been sufficient to induce it, if clothed no error was committed by the court in suswith power, to build a schoolhouse, but a taining the demurrer to the new matter con. court cannot take cognizance of the issues tained in the answer. tendered. It is not the province of a court 2. It is contended that the complaint does to inquire into the motives which prompt not state facts sufficient to constitute a parties to bring or defend suits or actions, cause of suit. This presents the question or speculate upon the effect of its judgments whether the facts alleged and conceded au. and decrees. It considers only the purely thorized the court to render the decree com. legal or equitable rights involved in the is- plained of. The directors of any school sues before it, and awards the remedies pre district, when authorized by a majority scribed by law. The court could not con- vote of the legal voters present at any lesider the question of how many taxpayers gally called school meeting, may, for the of said district were in favor of or opposed purpose of building a schoolhouse, contract to the tax after the vote had been taken a debt in the name and on behalf of said upon the subject, nor how much the school district by borrowing money or otherwise, district might gain or lose in consequence of not exceeding two-thirds of the proposed the injunction, nor whether the motive that expenditure. Hill's Code, 2602, subd. 3. prompted the plaintiffs to bring the suit was It is conceded that the legal voters of said a desire to divide the district.

district convened at the time and place apWe now come to the question as to wheth- | pointed in pursuance of legal notice, and er the court had any authority to allow the the record shows that at said meeting the clerk to correct the record of said district school board was authorized to build and meeting. It is made the duty of the school furnish a new schoolhouse, and expend the clerk to record all proceedings of the board sum of $3,000 for said purpose. Two-thirds of directors and of the meetings of the quali. of the proposed expenditure is the measure fied electors of the district, when properly of the power to issue district bonds, and the convened (Hill's Code, § 2619, subd. 1), and school board, although instructed to issue such record, in a collateral proceeding, is such bonds in the sum of $3,000, had no auconclusive evidence of what was done at thority to issue them in behalf of said disany such meeting, and cannot be contradict- trict in any greater amount than $2,000. ed or varied by parol. The power to make The law having fixed the limit, the vote of and keep a record carries with it, while the the electors was sufficient authority for the school clerk is in office, either at that or a issue of bonds to the extent of two-thirds of subsequent term, the right to amend it until the proposed improvement, and the school such record conforms to the proceedings of board will be permitted to issue them in the school board or electors; and this power that proportion. of amendment is derived solely from the The next question is whether the record: official character of the clerk, and does not “Moved by Ed. Walker, and seconded, that depend upon the permission of the court in we proceed to vote on the ten-mill tax by which the record is offered as evidence. ayes and nays. Carried: Ayes, 43; nays, Boston Turnpike Co. v. Town of Pomfret, 3,"--shows that any tax was voted at said 20 Conn. 590. The clerk of a school district meeting. The plaintiffs' contention is that is not an officer of the court, and hence it is a method of voting only was adopted by not necessary for him to secure its consent such vote, and that there is no evidence that to do what the law expressly grants or im- any tax was voted. "Every essential propliedly permits. The court has charge of ceeding in the course of a levy of taxes," its own records and process, and may cor- says Campbell,J., in Moser v. White, 29 Mich. rect them, or permit its officers, upon mo- 59, “must appear in some written and pertion, to do so; but it cannot, in a collateral manent form in the records of the bodies auproceeding, either grant or deny the right thorized to act upon them. Such a thing as to any person, not such officer, to amend a parol levy of taxes is not legally possible a record kept by him. The right to amend under our laws." The evidence of the levy a record exists only while the clerk is in of a tax must therefore affirmatively appear office, and his power ceases with his term; from an inspection of the record of the meetbut it is revived by his subsequent re-elec- ing of the electors or their representatives tion, and he may then amend what was making the same, and parol testimony is done by him when he was in the same office not admissible to aid, yary, or contradict it. before. Welles V. Battelle, 11 Mass. 476; These records, however, are often made by Hartwell y. Littleton, 13 Pick. 229; Cham- persons not familiar with legal terms, nor berlain v. Dover, 13 Me. 466. The pleadings skilled in the use of technical or exact lanshow that the defendant J. J. Pye is, and on guage; and, when they are offered in evi. dence of the levy of a tax, it is the duty of school board, whose duty it would be to the courts, in construing them, to disregard order a special election to fill the vacancy, irregularities, and uphold the tax, so long as and no election having been held for that the substance of a good vote sufficiently ap- purpose, it follows that said directors did pears. Cooley, Tax'n, 337. The meeting not resign their respective offices, and had having been called for the purpose of vot- authority to order the school clerk to certify Ing a tax, it does not necessarily follow that the delinquent assessment roll to the couna tax was voted because the record might ty clerk. fail to show that the proposition was defeat- It is made the duty of the board of school ed. If this were the rule, then no record of directors, in selecting a site for a schoolthe vote levying a tax would be necessary, house, to consider the prospective as well and proof that the qualified electors con- as the present convenience of the people invened pursuant to legal notice, which speci- terested, and to locate it at such place as, fied the object of the meeting, would be all in its judgment, will best subserve the presthat was required. Such is not the rule, ent and future needs of the district. Hill's and the record, when favorably construed, Code, $ 2602, subd. 21. The location of a must affirmatively show that a tax was voted schoolhouse site is therefore a matter withby a majority of the legal voters of the in the discretion of the school board, subject school district. The legal voters of any to the advisory power of the county school school district, when duly convened, have superintendent (Id. § 2590, subd. 16); and, authority to levy a tax for any legal purpose, since the transcript fails to show that the the object of which is specified in the no- superintendent was consulted upon the mattice calling the meeting. Hill's Code, $ 2610. ter, it would be out of place for the court The notice in the case at bar specified the to interfere. The decree of the court below rate of taxation to be levied for the purpose

will therefore be modified, and one here enof building the schoolhouse and for the tered enjoining the defendants from issuing teachers' fund and incidental expenses,

the contemplated bonds on behalf of said "making a ten mill (10) tax in the aggregate''; district in excess of $2,000, and as to all and the motion to vote “on the ten-mill tax" other matters contained in said decree the would seem to be responsive to the object of injunction will be dissolved; the plaintiffs the meeting, as specified in the notice. The to recover their costs and disbursements intent to levy the 10-mill tax, and have it in this court and in the court below. collected, is apparent from the record; and, where such intent is manifest, it is equivalent to a present levy. West v. Whitaker,

(27 Or. 33) 37 Iowa, 598; Snell v. Ft. Dodge, 45 Iowa,

SIIIVELY v. PENNOYER et al. 564. While the record of the district meet- (Supreme Court of Oregon. March 4, 1895.) ing is ambiguous, we think it affirmatively MANDAMUS—To COMMISSIONS OF Public LANDSshows that a vote was taken upon the ques- To COMPEL CONVEYANCE - SUFFICIENCY OF AL

TERSATIVE WRIT - APPLICATION TO PURCHASEtion of levying the 10-mill tax specified in

ESTOPPEL. the notice, and that the substance of a good

1. The alternative writ, not the petition, vote sufficiently appears therefrom.

is to be deemed the complaint in mandamus An issue is made upon the question of the proceedings for determining the sufficiency of alleged resignation of the defendants Morton

the allegations to sustain the proceedings.

2. A recital, in an alternative writ to a and Dean; and as the pleadings show that

board of commissioners for sale of public lands the defendant Custis, the remaining member to compel it to give him a deed, that plaintiff of the school board of said district, was made a written application in the manner not at said meeting of the legal voters held

prescribed by law," is a conclusion of law, and

not a statement of facts from which can be de July 28, 1892, nor in the district at that time, termined the sufficiency of the application the question is presented whether the ten- which Hill's Ann. Laws, $ 3600, provides shall der to and acceptance of their resignation by

contain allegations as to age, citizenship, and

other facts, without which the board is prothe legal voters vacated their respective of

hibited from acting. fices. When a vacancy occurs in the board 3. The entering of an order on its minutes of directors, the remaining member or mem- by the board accepting an application to pur

chase land does not estop it, at any time before bers shall forthwith authorize the clerk to

execution of deed, to question the sutliciency of call a special meeting to fill the vacancy the application. (Hill's Code, $ 260 ); and district meetings, 4. After acceptance of an application to when legally called, shall have power to

purchase certain lands as tide lands, and after

entry of crder in its minutes directing execusupply all vacancies in their district offices

tion of a deed, it may suspend execution of (Id. $ 2607). “Where the statute is silent the deed till applicant show that the lands are on the subject,” says Mr. Throop, in his

actually tide lands, and that no previous deed

therefor had been issued by the state. work on Public Officers (section 408), “a resignation must be made to the appointing Appeal from circuit court, Marion county; power, or, if the office is elective, to the R. P. Boise, Judge. power authorized to call an election to fill Mandamus by Charles W. Shively against the vacancy.” The statute being silent up- Sylvester Pennoyer and others. A demurrer on the subject, and the alleged resignations to the petition was sustained, and plaintiff not having been made to a member of the l appeals. Affirmed.

Sidney Dell, for appellant. C. M. Idleman, 1 veyed by an act of the state legislature passed Atty. Gen., C. W. Fulton, and J. H. Smith, October 11, 1802. That thereafter, on the for respondents.

13th day of January, 1891, without previous

notice to the plaintiff, the board made an orWOLVERTON, J. This is a mandamus der, and caused the same to be entered in its proceeding to compel the board of commis- minutes, suspending the issuance of said sioners for the sale of school and university | deeds until such time as he should show to the lands to execute to plaintiff a quitclaim deed board that the lands so purchased were acto tide lands in front of certain lots and tually tide lands, and that no previous deed blocks of the city of Astoria. The alterna- therefor had been issued by the state of Oretive writ issued upon filing the petition was gon. That a demand had been made for the attacked by demurrer, which being sustained issuance of said deeds, and by the board rethe plaintiff filed an amended petition by fused. Counsel for defendants make the leave of the court. The defendants thereupon point that the alternative writ does not show interposed a demurrer to this petition, which that plaintiff has made written application was sustained by the court, and this action for the purchase of said lands, according to is assigned here as error. The alternative law, nor does it appear therefrom that he is writ is deemed the complaint in mandamus legally capacitated as such applicant, under proceedings, and by it their sufficiency must the provisions of law regulating the sale of be tested, and not by the petition. We have tide lands. Section 3600, Hills Ann. Laws here, then, for our determination the suffi- Or., provides, among other things, that all ciency of the alternative writ, challenged by applications to purchase any of the lands of

pose of a re-examination of the ques- davit of the applicant taken before some notions considered by the court below, we will tary public or county clerk, to the effect that treat the alternative writ as though it con- he is 18 years of age, is a citizen of the United tained all the allegations of the amended States, or has declared his intention to bepetition. These allegations are, in substance, come such; that he is a citizen of this state; as follows, omitting formal matters: That that he has not, directly or indirectly, made prior to the 20th day of December, 1890, the any previous purchase of lands from the petitioner, Charles W. Shively, made written state which, together with the lands described application to the commissioners for the sale in the application, exceed 320 acres; that the of school and university lands in the manner purchase is for the actual use of the applicant, and form prescribed by law and the rules of and not for the purpose of speculation; and the board for the purchase from the state of that no contract or agreement, express or Oregon of certain tide lands upon the Colum- | implied, has been made for the sale or other bia river, in Clatsop county, Or., consisting | disposition of such lands in case such apof two tracts, one containing 4.71 acres and plicant is permitted to purchase the same. the other 1.85 acres. That prior thereto one The alternative writ recites that plaintiff John M. Shively made written application made a written application "in the manner in like manner to purchase from the state prescribed by law.” This is but a conclucertain other tide lands on said river, in the sion of law, and not a statement of facts from same county, consisting of six small tracts, which the court can determine its sufficiency. ranging from 25/100 to 6.75 acres, and sold The manner prescribed is that he shall make and conveyed all his rights therein to plain- | application, accompanied by an affidavit tiff. That all of said tide lands were surveyed showing that he is 18 years old, is a citizen by the county surveyor of Clatsop county, of the United States, or has declared his inand certified as being of the value of $5 per tention to become such; that he is a citizen acre. That on the 6th day of January, 1891, of the state, etc., as pointed out by section the board made an order accepting the appli- | 3600. These are the facts without which the cations of plaintiff and the said John M. board is prohibited from acting, and, if they Shively to purchase said tide lands, but raised existed, should have been shown by approthe price thereof to $20 per acre, and by a priate allegations. And the court, even if the like order offered to sell the same to said proceeding was otherwise proper and suffiapplicants at said price, and to convey the cient, will not compel the board to act upon same by a deed to contain the provision that any less showing. The alternative writ is said tide land was "quitclaimed without prej. clearly insufficient in this respect. Hildeudice to the rights of any person,” which or- brand v. Stewart, 41 Cal. 387; Woods v. Sawders were duly entered of record in the min. telle, 46 Cal. 389. So far as the court is adutes of the board. The plaintiff accepted the vised, he may be neither a citizen of the offer, and paid the full amount of said pur- United States nor of this state, or may be a chase price to the board, and took its receipt minor under the age of 18 years, and hence therefor, of date January 12, 1891, wherein it totally incapacitated to take the lands de. agreed to prepare the deeds, and forward the scribed by purchase from the state. The same as soon as possible. That on said 6th plaintiff must show that he is a qualified day of January, 1891, and prior thereto, the claimant before he can become a purchaser state was the owner of the legal title of said from the state; that is, one of the persons land, except as the same may have been con- entitled to the benefit of the laws under which

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