The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1912-01-31
Decisions Of the Supreme Court

In the supreme court. state Of North
Dakota, October, 1911. term. The
State OF North Dakota, ex rel, Norman
Nicholson and Thomas McCreary, ap-
neIlants, VS.. Kenneth Ferguson. III. >
Ballard and WendeIin zink. as the
board of county commissioners Of
roster county, North Dakota and Mary
Cain, as county superintendent Of
schools for Foster county, North Da"
kota, respondents.
In 1883 congressional township 146,
north Of range Sc, west in Foster
", was organized into a common
school district. In 1900 the city OF
Darlington was incorporated efnnrac-
ing all Of section 10 in said Wn-
ship. In 1902 pursuant TO a petltlon'
notice, etc. an election was held III
such school district for the purpose
of organizing the anne n a spe~
cial school district, which proposition
carried by practically a unanimous
vote. and ever since the date OF sucn
election the inhabitants Of such town.
shin have recognized such speciaI
school district corporation and such
corporation has regularly elected lts
officers. levied taxes, issued bonds, and
expended large sums for ~educational
purposes. In 1906 such congressional
township, with the exception or section
10 was organized as a civil township.
Thereafter and in September, 1907,
the resident electors and taxpayers OF
snch civil township petitioned the
board of county commissioners and
the superintendent Of schools to segre-
gate the territory embraced In such
civil township from the school dis
trict aforesaid, and to organize there
I'm a distinct school district. Such
petition was denied and REALTORS seek
~ mandamus to compel compliance
Herewith by the officers aforesaid.
Held, ,
/ That such special school district
lis at least a de facto school corpora
zion and it's due organization Will not
be inquired into in a mandamus pro-
ceeding.
2. That the territory which rela-
tors seek to have segregated and or
ganized into q distinct school distrlct
1eiug embraced within such special
section 949 r. c. 1905 is controlling
This section provides; That the
county commissioners shall detach any
part Of such adjacent territory which
is at a greater distance than three
miles from the central school in such
special district and attach to any ad-
iacent school or special district OF
districts upon petition to do so. sign
ed bv three-fourths of the legal vot-
ers OF such adjacent territory"
The REALTORS were therefore not en-
titled to the relief prayed for and the
district court properly quashed thu
writ.
(Syllabus by the court.)
Appeal from district court, Fostel
county, Coffey, ].
From a Judgment quashing an alter
native writ of mandamus. plaintlft'
appeal.
Affirmed.
S E. Ellsworth, for appellants Ed
ward P. Kelly and c. B. Craven o
respondents.
Opinion by Fisk, J., Justice Burke
being disqualified, did not participate
Patrick McCaffery, plaintiff and re
ypondent. VS.. Northern Pacific Railwa
Co.. defendant and appellant.
1. A motion to strike out q por
ton of the complaint was properl
denied when made on h ground Q
variance between the complaint an
the allegations Of the justice eour
where the complaint wa
filed and trial had thereon in jus
ice court and when the motion wa
made for the first time in the distric
court.
2. The owner Of land may testif
$3.50. 4L1s,-H SO h1 wa
not such owner his Ignorance OF II