It may be conceded that School District No. 23 was regularly organized and in existence when the conveyance to it of the premises was made in 1875; and I will concede, without deciding, that the title to such premises thereby became vested in the district, as averred in the petition. On July 1, 1897, however, the school commissioner, Duffy, made and filed in the proper office an order declaring such school district dissolved, and adding a certain specified part thereof to school district No. 15, and the balance thereof to school district No. 3, and directing that such order should take effect August 1, 1897. Commissioner Duffy had the right, under the statute, to make such dissolution, and it does not seem that he was obliged to take any other steps to effect it. See section 9, tit. 6, c. 556, p. 1208, Laws 1894, as amended by chapter 264, p. 201, Laws 1896. Since then the use of such District No. 23 as a school district has been practically abandoned. Part of its territory was merged with, and has since been utilized by, District No. 15, and the children resident therein attended school in the latter district. The rest of its territory has during the same period been utilized by District No. 3, and the children therein resident attended school in that district. No trustee was thereafter elected in District No. 23 until the proceeding taken by Langto, hereinafter referred to'.
What proceedings were taken, if any, to sell the property of District No. 23, and to pay its debts, as provided for in sections 10-12 of such act (Laws 1894, p. 1209, c. 556, tit. 6), does not appear, although the fact that this defendant offered to purchase the premises from the
But more than that, the evidence utterly fails to show a regular and duly authorized election by such district in December, when he claims to have been elected. By an order made December 8, 1902, O’Neil, as school commissioner, undertook to create and form a new school district out of Districts Nos. 15 and 3; that is, he attempted to recreate the one that Duffy dissolved. No consent of the trustees of such districts was ever obtained, as section 2 of title 6 of the statute (Laws 1894, p. 1207, c. 556) required, and hence that effort was inoperative. He also then authorized Provincia, a voter in the district, to notify all voters therein, as required by sections 1 and 2 of title 7, c. 556, p- 1210, Laws 1894, that a school meeting would be held in such district, so created, on December 16th, at 7:3o p. m., for the purpose of electing officers for such district. But as he failed to create such new district, no election could be lawfully held for the same.
It is claimed, however, that the old district was in fact never dissolved, and that, although five years had passed without electing a trustee, yet O’Neil, as school commissioner, could, under the provisions of section 9, tit. 7, of the school act, order Provincia to give notice to the inhabitants of the old district for an election of officers thereof, the same as if it had never in fact been abandoned. If the old district had never been dissolved, it had been, in fact abandoned, and was evidently not in the situation referred to in such section 9. But if it were, the notice so required to be given is a six-day notice in writing, and one which the commissioner shall himself prepare and1 deliver to the voter who is to serve the same. See sections 1 and 2 of such article. The evidence does not show that Provincia served any such notice, nor that he served any notice six days before the 16th. He says he served a notice of meeting on all the taxpayers from the 10th to the 12th of December. Whether he served more than one on the 10th does not appear. Whether he received it from O’Neil does not appear. What it contained does not appear. There is nothing to show that the notice which he gave purported to come from O’Neil, or that it contained on its face any suggestion whatever that such a district as No. 23 was yet in existence, or that there were any officers to be elected therein. Nor does it appear that any considerable number of the inhabitants of the old territory of No. 23 attended at such meeting. He testifies that Langto was then elected trustee, but he strenuously refrains from producing any record of the votes, or of stating anything more that was done there. I conclude that the evidence does not show a regularly held meeting at which Langto was elected trustee. It is apparent from the evidence that there has been no effort or purpose on the part of Districts Nos. 15 and 3 to have No. 23 again carved out of their territories; and the election of a trustee of such district, upon whom very important powers would be there
Langto, therefore, cannot be held to be a trustee of School District No. 23, and he had therefore no authority to inaugurate on its behalf the proceedings in question. The application in such proceedings must be made by “the person lawfully entitled to the possession of the property intruded into or squatted upon.” Code, § 2235. If School District No. 23 held the title, and had never been dissolved, its lawfully elected trustee would be the one who was entitled to such possession. Section 47, tit. 7, c. 556, p. 1227, Laws 1894. And Langto was not that trustee. If it was lawfully dissolved by Duffy, as it clearly seems to have been, evidently Langto is not its trustee; and, inasmuch as in that event it became the duty of the supervisor to sell the property, it would seem to be his duty to give possession of the same. In any event, Langto has not shown himself entitled to the possession of the property, and hence should not have maintained these proceedings.
The judgment of the county court and of the justice must be reversed, with costs. All concur.