Brand v. Common Council of Nome

MOORE, District Judge,

after making the foregoing statement of facts, rendered the following opinion:

It must be conceded that the election of members of the ■ school board in April, 1905, was fair and honest, and that the will of the sovereign people was expressed so far as the electors by the ballots put in their hands were given opportunity to signify their will. On that occasion the town council of Nome sought to observe all the forms prescribed by the law to evoke an expression of the popular will. That they failed to obey the spirit of the statute of January 27, 1905, and its supplement, must have been discovered by them when they came to decide who of the members elect should hold the three-year term of office, who should serve the people for two years, and who for one year. The mandates of the statute, which the council made an effort to enforce by ordering the election and afterwards by declaring its results, are couched in the first 16% lines of section 4 of the statute of January 27,-1905, in these words:

“The common council of the incorporated towns in said district shall have the power, and it shall be their duty, in their respective towns to establish school districts, to provide the same with suitable schoolhouses, and to maintain public schools therein and to provide the necessary funds for the schools; but such schools when established shall be under the supervision and control of a school board of three members, consisting of a director, a treasurer, and a clerk to be elected annually by the vote of all adults who are citizens of the United States or who have declared their intention to become such and who are residents of the school district. The members of said board first elected shall hold their oflices for the term of two and three years, respectively, and until their successors are elected and qualified, and one member of such board shall be elected each year thereafter and shall hold his office for a period of three years and until his successor is elected and qualified; and they shall each, ' before entering upon the duties of their office, take an oath in writing to honestly and faithfulty discharge the duties of their trust.”

• The express powers relating to the election of a school board granted by said statute to the common council of in *35 corporated towns in the district of Alaska are: (1) To estah- : lisia school districts; (2) to provide the same with suitable - schoolhouses; (3) to maintain public schools therein, and to-provide the necessary funds for their support. All other ■ powers belonging to the common councils are implied ones, - to be inferred from the language of the grant of express pow- ■ ers in the statute as necessary to carry out and effectuate' the express powers. Chief among their implied powers or: duties is the one of ordaining the election of a school board of three members, publishing timely notice to the electors of the-time and place of the election, and declaring its results.

The statute declares that:

“The schools when established.shall be under the supervision and control of a school board of three members, consisting of a director, a treasurer and a clerk.”

This language is tantamount to a declaration that the powers of the supervisors and controllers of the schools shall be exercised by a board of three members, each of equal au-: thority in governing the schools, but each to have special1 functions, namely, one that of director, another that of treasurer, and the third that of clerk. By the term “director,” in this connection, the Legislature meant, I think, the member who was to be the head of the board, its presiding officer: These individual officials, so vested with powers to be exercised by each in common with the others and with other duties to be performed by each singly, make up or compose the school board which I conceive the Congress had in mind in-framing the part of the section quoted. These members- of: the school board the section directs shall be elected by the vote of all adults who are citizens of the United States, or who have declared their intention to become such,-and who: are residents of the school district. The statute defines the-official tenure of the members of the board first elected, and limits the term of office to one, two, and three years, respec- *36 tively, and until their successors are elected and qualified, but does not in express words make provision for determining who shall designate the particular member who shall enjoy office for these several terms. A proper construction of the entire section, therefore, must supply the authority whom the Congress meant should fix the length of each member’s term. The omission of the statute to point out which member should be director, which treasurer, and which clerk, and the consequent uncertainty upon this matter, has led to the bringing of this proceeding.

That the legislative intent was that the electors should decide the special functions of the several members of the board admits of but little doubt, upon a careful survey of the entire section. This intent is brought out in clear relief when it is considered that the one clause which provides for the election of the members of 'the board also assigns to each member •distinct duties. When the statute declares that the school board shall be made up of three members, each of special functions, besides the general powers annexed to the office, it is not reasonable to hold that the electors, in the absence of language importing a denial of the right, should be excluded from deciding the special office to be filled by each member. This is the more apparent because the statute contains not a single word which in any manner can be held to convey the intent that the election of the president, treasurer, or clerk should be left to the members of the board. This is yet more manifest when it is noted that the section directs each member, before entering upon the duties of his office, to take an oath in writing to discharge honestly and faithfully the duties of his trust. What duties? Surely the duties which include the duties growing out of all their functions, both those belonging generally to each member of the board and those specially falling to each member’s lot. Each member, if the meaning of the law is carried out, enters the board as the *37 chosen agent of the electors to do certain specified work of trust and confidence. When he has taken his oath to fulfill his trust, he is then a legal member of the board, charged with a special duty distinct from his fellow members. The board, upon the taking of the oath prescribed, is at once legally constituted and organized.

The statute, as amended by the supplement of March 3, 1905, directs that the members first elected shall hold their offices for the term of one, two, and three years, respectively, and until their successors are elected and qualified. It further provides for the election, annually after the first election, of one member of the board, who shall hold his office for three years. In accordance with the cardinal rule of interpretation, that every provision or clause of a statute should, if possible, be given effect, it was evidently the intention of Congress to establish a system of rotation in office for the school board, so that each year after’ the first year of its legal organization one member should retire, and be succeeded by a new member elected the same year.

But who shall designate the member who shall hold the shorter term of one year, and who the two longer terms? At the argument of the case the petitioner maintained that the power to designate belongs to the electors; while the defendants argued that the power devolved on the city cotinciL I am at a loss to find the least suggestion or hint in the act of a legislative intent that the council should allot to each member of the school board the limit of his official tenure. The implied powers of the common council in respect to elections under the act must be limited to providing the machinery and means for the electors to express their choice of the members' of the school board and to declaring the result of the election ; hence it is arbitrary for the council to assume this power. It would be a still more arbitrary assumption of power for the school board to allot the terms of its members. Since the *38 .terfns of the several members are of unequal duration, the 1 Legislature must have meant that the electors should not ¡only name the member who should be treasurer, who director, and who clerk, but also how long each should serve. The election of members of the board, without the electors giving expression to their preference as to the term each .member should serve, would be incomplete as an expression .of the sovereign will. To fix the terms of the members of the board is one of the rights of the electors, where the terms are of unequal duration, and this right cannot be delegated ' to others. The right to choose the members includes the right ■ to choose the terms for which they shall hold office, provided the members cannot hold for equal terms, or possibly even where the statute provides a different method or agency for ■ determining, the length of each member’s tenure.

: ■ In the case at bar the ordinance provided for an annual elec- ■ .tion of a school board, who should hold their office for the • term of one year and until their successors are elected and qualified. It is plain, from a first comparison of this part of .the: ordinance with the portion of the section of the law of - January 27, 1905, quoted, that the ordinance did not comply • with the requirements of the statute. So, also, the ballot prescribed by the ordinance, it will be seen at once, does not conform- to the statute, since it simply expresses the choice of .¡the elector for a “member” of the school -board, and nothing more.

- " The notice of the election announces that an annual school ■ '.board election of Nome school district, Alaska, will take place imn Tuesday, April 11, 1905, whereat three members of the ..-school board will be elected for the ensuing year. This notice but partially adheres to the terms of the statute and the .'.intent of the Legislature gathered therefrom. The form of - ballot actually voted gave the elector opportunity to only in .-. part exercise his right as part of the sovereign power of Alas *39 ka, and deprived him of the right to express himself, either by naming the special duties of the men of his choice or by indicating the term each should hold his office.

Assuming the interpretation of the statute and supplement which we have enunciated to be the correct one, the election of January, 1905, was not wholly in conformity with the law. Regarding the election in the most favorable light, the electors voted for members to hold office for one year, while the statute directs that they shall vote for a director, a treasurer, and clerk, who shall compose the school board, and also expressly directs that they shall hold for one, two, and three years, respectively and by implication makes the electors the arbiters of the terms each officer composing the board shall hold his office. To the extent that the election was not a full expression of the will of the electors they were disfranchised.

Is the petitioner, as one of the citizens of the Nome school district, entitled to invoke the remedy by peremptory mandamus for the infractions of the law of which he complains? A private citizen may be relator in a proceeding whose object is the peculiar relief afforded by mandamus. High on Extraordinary Remedies, §§ 431, 433; Morris v. Wrightson, 56 N. J. Law, 136, 38 Atl. 56 , 33 L. R. A. 548; Union Pac. Ry. v. Hall, 91 U. S. 343 , 23 L. Ed. 438 ; State v. Ware, 13 Or. 380 , 10 Pac. 885 ; State v. Grace, 20 Or. 154 , 35 Pac. 382 . In the last two cases it was decided, in construing the section of the Oregon Code of which our section 554 of part 4 of Carter’s Code for Alaska is an exact copy, that a citizen is “beneficially interested” and is entitled to be relator in a mandamus action, where “the object of the writ is to enforce the performance of a public duty.” By section 553 of the Alaska Code it is ordained:

“That the writ of mandamus may be issued to any inferior court, corporation, board, officer or person, to compel the performance of *40 an act which the law specially enjoins as a duty resulting from an office, trust or station.”

As hereinbefore stated, the law imposed the duty upon the town council of Nome to provide for an election for the choosing of members of the school board and to declare the results. As already decided, it was the duty of the council to give the voters the opportunity, in accordance with their rights, to give an expression of their will by designating the term of office to be held by the three persons of their choice for members of the board. This privilege was denied them.

In Chamberlin v. Hartley, a Pennsylvania case, reported in 152 Pa. 544 , 25 Atl. 572, 573 , presenting a state of facts nearly a counterpart of that in this case under consideration, the court decided that the omission of any electors to designate the term of the persons of their choice authorized the rejection of all ballots cast by such electors. In the course of the decision it was further decided that parol evidence to .show whom the electors meant to hold the several terms of different lengths was inadmissible to give validity to ballots which did not fully express on their face the term during which the person chosen by the voter should hold office. Hence the copy of the Nome News, offered in evidence at the trial to show that the true purpose and effect of the election was to elect members of the school board to serve for one, two, and three years, respectively, and that the electors generally understood the effect and object of the election, was inadmissible. The ballot of the elector itself expresses the voter’s intention, and resort cannot be had to parol testimony to show an intention not so expressed on the face of the ballot. In the case of Chamberlin v. Hartley all ballots designating the term of office were counted; all omitting the term were omitted in the count. The court said the action of the election board in so doing was legal. In line with these decisions are Sadsbury Tp. Election, 6 Lane. Bar, 42; In re Wier, 34 Leg. *41 Int. 214 ; Milligan’s Appeal, 96 Pa. 222 ; Gilleland’s Case, 96 Pa. 224 . These are all Pennsylvania cases. Other authorities-concurring with the doctrine of Chamberlin v. Hartley are 6 Am. & Eng. Ency. of Law, 315; State v. Griffey, 5 Neb. 161 ; Page v. Kuykendall, 161 Ill. 319 , 43 N. E. 1114 , 32 L. R. A. 656.

It is my opinion, therefore, that the election of April 11, 1905, was invalid because: First, the ordinance was defective and illegal in substance; second, the notice or call of the election was illegal in substance; third, the ballots voted were defective and misleading to the elector; and, fourth, it was not such an election as the act contemplated and required, and therefore the electors should have opportunity at another election to vote for three members of the school board, namely, a director, a treasurer, and a clerk, and to designate which of the three members shall hold office for one, two, and three years respectively.

As a result of the views taken of the facts and the law governing in this case, the petitioner will be awarded judgment in accordance with the prayer of the petition, and, following the judgment, a wit of peremptory mandamus may issue thereon.