dissenting.
The attorneys for the plaintiffs mistakenly contended that the school district had no existence because it was not organized under the right section of the statute. That proposition is very much discussed in the majority opinion, and there is no doubt that, the school district having acted as such for more than a year, is a de facto corporation fully qualified to act as a school district. The cases cited are collateral attacks upon the existence of the district, and, being such, are determined by the statute itself. This case, it seems to me, is very different; there is no doubt that a school district exists and has the powers *650necessary to a school district to conduct its schools and other necessary duties, but the question in this case is whether a school district can transfer itself from one class to another so as to greatly enlarge its powers, and that, as it seems to me, is the precise question that was stated and decided in Chicago, B. & Q. R. Co. v. School District, 60 Neb. 164. In that case the railroad company tried to enjoin its taxes, claiming that the school district was organized as this school district now claims to be organized under subdivision XIV. If it was of one class, the class created by subdivivison XIV, it could not levy more than 2 per cent, taxes on the valuation. It attempted to levy 3.5 per cent., and the question was whether it belonged to the one class or the other. It does not seem to be optional with the school district to classify itself. The statute is mandatory. It describes the kind of territory it is legislating for — a city with 1,500 inhabitants — and then says, “shall constitute one school district,” and may vote bonds without a prior petition of the voters, so that the statute itself absolutely fixes the status of the school district as to whether it is under subdivision XIV or under the general school law. Chicago, B. & Q. R. Co. v. School District, supra, so considers it, and I think correctly; and it says that the class to which the district belongs is fixed by the statute, and depends upon the population of the city, and not upon the population of the district. It refuses to enjoin the tax because the city of Minden does not contain 1,500 inhabitants, and therefore the statute wrould not place it in the class described in subdivision XIV, but in the other class.
The purpose of the statute that provides that, where a school district has operated for a year or more, it shall be deemed a corporation and qualified to act as a district is very plain. It is pointed out in the cases that are cited in the majority opinion. Some of them were actions in quo warranto to dissolve the district, and the court takes occasion to point out what the effect would be if a school district should be so dissolved. The ordinary procedure, *651to appoint a receiver to take possession of the property and administer it, or any other recognized procedure upon the dissolving of a supposed corporation, would be very disastrous in such case. But surely the purpose of the statute was not to enable a school district, which had been by the statute placed in one class, to transfer itself into another and so enlarge its powers. I cannot conceive what would be gained by such a law as that, or why the legislature should have any such purpose. The majority opinion overrules the case of Chicago, B. & Q. R. Co. v. School District, supra, in very few words. It is virtually said that if the court then had known of this statute, or if this statute had been relied upon, the decision in that case would have been very different; that is, that the decision is entirely wrong, but the court was excusable because it was not told of the statute providing that when a district has existed for one year it could do whatever it chose to do. I think that the decision in that case is right and ought to be followed.
Rose, J., also dissents.