Opinion
No. 4397.
Argued March 2 and 24, 1955.
Decided April 6, 1955.
While a member of a cooperative school district was permitted by the provisions of Laws 1947, c. 199, s. 14 to withdraw under certain conditions, the effect of the legislative amendments thereto (Laws 1951, c. 213; Laws 1953, c. 225) omitting those provisions was to deny that right.
It is within the power of the Legislature to validate a cooperative school district meeting and all actions taken at such meeting and, in the absence of fraud, cure any defect resulting from improper notice or failure of the moderator of one of the member districts to permit a vote to withdraw while there was still opportunity to do so.
An act of the Legislature validating a cooperative school district meeting and all action taken thereat is not prohibited by the Constitution, Pt. I, Art. 23.
PETITION, brought by a resident and voter of the Madbury School District against Oyster River Cooperative School District No. 2 and others seeking a decree invalidating the organization of this cooperative district. Hearing before a master who filed a report recommending dismissal of the petition. The parties stipulated that the findings and rulings of the master should have the same force and effect as the findings and rulings of a Justice of the Superior Court.
It appears that the school districts of Madbury, Durham and Lee became interested in consolidating into one organization under the provisions of Laws 1947, c. 199, as amended by Laws 1951, c. 213 and Laws 1953, c. 225. Accordingly, preliminary meetings were held by each district on July 1, 1953, at which the vote in each instance was to form the cooperative district. There was no question as to the legality of the Madbury meeting but the plaintiff claims the Durham and Lee meetings were invalid because notice was not published as required by Laws 1953, c. 225, s. 2 and Laws 1945, c. 39, s. 3. On August 6 following, the three districts held another meeting to organize under Laws 1953, c. 225, s. 3. Later, some voters in Madbury having become dissatisfied, a meeting of the Madbury District was duly called on November 10, 1953, in order to give them an opportunity to decide whether they should withdraw from the defendant organization. The moderator dismissed this meeting without giving anyone an opportunity to vote on the question after having received legal advice that this was the proper course for him to pursue. On February 19, 1954, the plaintiff brought this petition in the Superior Court and in addition to asking that the organization of the defendant be invalidated, he requested that meetings legally called by Durham and Lee for the following day, February 20, be restrained. This request was denied. On February 20, meetings were held in Lee and Durham and those districts again voted to join the Oyster River Cooperative School organization. In April, in accordance with an agreement between all the parties the court granted a petition of the plaintiff to hold a special meeting in Madbury to vote again on the question of whether that district should withdraw from the defendant. This meeting was held on April 27 and the vote was 105 to 100 to withdraw. However, the defendants claim that this was ineffective to detach Madbury from the cooperative district since once it was legally formed there could be no withdrawal under Laws 1947, c. 199, as amended. To legalize the Oyster River Cooperative School District No. 2, the Legislature passed House Bill No. 164, which became law on March 10, 1955. The material portions of this read as follows: "1. ORGANIZATION AND PROCEEDINGS LEGALIZED. Oyster River Cooperative School District hereby is constituted a legally organized cooperative school district as of August 6, 1953 under chapter 199 of the Laws of 1947 as amended in accordance with the votes taken at a meeting of said district held on August 6, 1953 and all votes and proceedings of said district at said meeting" and at all subsequent meetings "are hereby legalized, ratified and confirmed."
Further facts appear in the opinion. Transferred by Grimes, J.
McCabe Fisher, Paul B. Urion and Harold D. Moran (Mr. Moran orally), for the plaintiff.
Charles F. Hartnett (by brief and orally), for the defendants.
The plaintiff asserts that the Legislature cannot validate the organization of a cooperative school district where a local district was illegally prevented from voting to withdraw until such time as withdrawal became unlawful. While there is force in his contention, it is not sustainable in this case. The difficulty with his position is that even if the moderator's action in refusing to permit a vote at the Madbury District meeting on November 10, 1953, on whether that district should withdraw from the defendant cooperative was illegal, it is impossible to say whether the meeting would have rescinded the previous vote of July 1, 1953, to join the defendant organization. No one knows what action might have been taken at this November meeting and in the absence of any vote, the original decision to consolidate remained in full effect. Mitchell v. Brown, 18 N.H. 315. This was the situation until after the Lee and Durham school districts had, at unquestionably legal meetings on February 20, 1954, remedied the failure of publication of notice of their original meetings of July 1, 1953, required by Laws 1953, c. 225, s. 2 and Laws 1945, c. 39, s. 3, and voted to join the Oyster River Cooperative. Once they did this the Madbury district could not withdraw. Laws 1947, c. 199, s. 14, contained a provision permitting withdrawal of a member under certain stringent conditions. The amendments of Laws 1951, c. 213 and Laws 1953, c. 225, omitted this clause and it is clear the intention of the Legislature, the policy of which favors consolidation of schools (Lisbon School District v. District, 96 N.H. 290), was to deny this right.
By House Bill No. 164 the Legislature plainly meant to cure all irregularities and defects in the organization of the defendant district and to legalize its existence. The plaintiff concedes the broad powers which the Legislature has to correct errors and omissions in the creation of school districts and indeed such authority unquestionably exists. Eastman v. McCarten, 70 N.H. 23; Keene v. Roxbury, 81 N.H. 332, 334; 78 C. J. S. 738; 16 C. J. S. 879, 880. As far as the legality of the defendant organization is concerned, in the absence of fraud, we cannot see that it matters that the Madbury voters failed to express their intention to withdraw at the November 10 meeting because the moderator unlawfully ordered adjournment without permitting them to vote. The law indisputably is that the Legislature may validate a meeting and the action taken thereat where the voters did not attend for lack of proper notice. Eastman v. McCarten, supra. No reason appears why the same rule should not apply here. It follows that House Bill No. 164 legalized the organization of the defendant district unless there has been fraud. White Mts. R. R. v. White Mts. R. R., 50 N.H. 50; 51 Harv. L. Rev. 1069. However, in this case no finding of fraud relative to the actions of the moderator at the November 10 meeting of the Madbury District was requested, none was made and none is compelled by the record. It is also well settled that this legislation is not within the prohibition of Art. 23, Pt. I, of the New Hampshire Constitution. Eastman v. McCarten, supra.
In conclusion, we hold that House Bill No. 164 legalized the organization of the defendant district. This conclusion renders unnecessary consideration of any remaining questions and the order is
Bill dismissed.
All concurred.