Opinion
No. 8305.
Submitted January 7, 1943.
Decided January 25, 1943.
Prohibition — Schools and School Districts — Consolidation — Petition to be Signed by Majority of Resident Freeholders — Statutory Requirement Jurisdictional — Duty of County Superintendent of Schools — Who are Freeholders — Descent and Distribution — Title of Intestate's Property passes to Heirs immediately upon His Death. Descent and Distribution — Title of Decedent's Property Vests in Heirs at once Upon Death — Freeholds. 1. Title to property of a decedent passes to his heirs immediately upon his death, and where the property consists of a freehold the heirs at once become freeholders, passing of title not depending upon entry of decree of distribution. Prohibition — Schools and School Districts — Consolidation — Petition must be Signed by Majority of Freeholders in District. 2. Where in a proceeding in prohibition arising out of an attempted consolidation of school districts under section 1034, Revised Codes, authorizing an election upon a petition of a majority of the resident freeholders of the district qualified to vote at school elections, the list of freeholders signing the petition contained the names of seven of the total number of thirteen, the name of the fourteenth, who became a freeholder upon the death of his father seized of a freehold who died intestate, (see par. 1, supra), having been omitted, the petition for consolidation did not contain the names of a majority of the freeholders and no election could be held. Schools and School Districts — Consolidation — Duty of Superintendent of Schools to Search all Records of County to Determine whether Majority of Freeholders Signed Petition. 3. In determining whether a petition for the consolidation of school districts contains the signatures of a majority of the resident freeholders qualified to vote at school elections, the county superintendent of schools must search all the records of the county, i.e., not only those in the assessor's office and those in the office of the clerk and recorder, but in the office of the clerk of the district court as well. Same — Extent of Investigation by Superintendent of Schools to Determine Status of Signers of Petition. 4. Where the records of the county indicate on their face that a resident of a school district is a freeholder having a right to vote upon the question whether school districts, including his own, shall be consolidated, it is not unreasonable to require the county superintendent of schools to make adequate investigation to determine his status. Same — Provision of Statute Requiring Signing of Petition by Majority of Freeholders Jurisdictional, not Directory. 5. The provision of section 1034, Revised Codes, requiring the filing of a petition by a majority of the resident freeholders in a school district that the district be consolidated with another district is jurisdictional and not merely directory, and where the petition is not signed by a majority, an election to determine the question may not be called.
Appeal from District Court, Madison County; Henry G. Rodgers, Judge.
Mr. R.V. Bottomly, Attorney General, Mr. Fred Lay, First Assistant Attorney General, and Mr. John M. Comfort, for Appellant, submitted a brief; Mr. Lay argued the cause orally.
Messrs. Bennett Bennett, for Respondent, submitted a brief; Mr. Lyman H. Bennett, Jr., argued the cause orally.
This is an appeal from an order of the district court for Madison county granting a peremptory writ of prohibition in favor [1, 2] of the respondent herein. The matter arose out of an attempted consolidation of several school districts in Madison county under section 1034, Revised Codes. The chief question in the case concerns the sufficiency of the petition in District 48 requesting consolidation upon which the election was based. The petition bore the signatures of seven resident freeholders. It was stipulated by counsel for the respective parties that there were at least thirteen resident freeholders, and upon the hearing evidence was adduced by the respondent herein showing that he and other persons, in addition to the thirteen agreed upon, were resident freeholders of the district at the time the petition was filed.
It will be unnecessary here to consider the status of all of the persons claimed to be resident freeholders of the district whose names did not appear on the list of resident freeholders, which was prepared by the county superintendent of schools under section 1034, supra, as the petition must bear the signatures of the majority of the resident freeholders of the district, and if the relator is a freeholder as contemplated by that section, then the petition is insufficient as a majority of the freeholders would not have signed it.
The list of freeholders of the district upon which the county superintendent of schools relied was one prepared for him by the county assessor. He made no independent search of the record, either in the office of the assessor, the county treasurer, the county clerk and recorder or in the clerk of the district court's office. He relies upon the opinion in Swaim v. Redeen, 101 Mont. 521, 55 P.2d 1, 5. It was there held by this court that the county superintendent of schools in matters such as this may rely upon the records of the county in determining the number of freeholders resident in the district and that, under the statute, the only reasonable construction was that the statute contemplated only "the freeholders shown to be such by the county records * * *."
The testimony is that respondent's father owned a freehold within District No. 48; that he died intestate and that respondent is one of his heirs; that probate proceedings of his estate are pending in the district court of Madison county, and that no decree of distribution had been made at the time of the petition. It is appellant's argument that this interest is not one appearing of record under the decision in the Swaim Case, supra.
Title to property of a deceased person passes immediately upon his death to his heirs, and it does not pass by reason of the decree of distribution. ( In re Williams' Estate, 55 Mont. 63, 173 P. 790, 1 A.L.R. 1639; Hoppin v. Long, 74 Mont. 558, 241 P. 636.) Respondent then became a freeholder immediately upon the death of his father, since he was an heir at law, and since his father died seized of a freehold estate in the district.
While the Swaim Case, supra, holds that it is not necessary [3, 4] to search outside of the records of the county to determine who the freeholders of the district are, there is nothing in that decision to obviate the necessity for a search of all of the records of the county in determining the number. The files of the clerk of the district court's office are as much a part of the records of the county as are the records in the assessor's office, or in the office of the clerk and recorder. An examination of those records would have apprized the county superintendent that relator was an heir at law of his father, and would have required the superintendent to then ascertain whether or not he was in fact a freeholder. The decision in the Swaim Case, supra, does not dispense with the necessity for including all the freeholders of the district in the list provided for in section 1034, supra. It is based entirely upon the practical difficulties which the county superintendent faces in making such a list. If the records of the county indicate on their face that a resident of the school district is a freeholder, then it is not unreasonable to require the county superintendent to make adequate investigation if necessary to determine his status. The evidence clearly shows here that relator is a freeholder, and that fact could have been determined by the county superintendent at the time the petition was filed.
The addition of relator's name to the list of resident freeholders would have increased it to fourteen. Since only seven had signed the petition, it did not conform to the requirements of the statute. This requirement of section 1034 is obviously jurisdictional. Absent a petition signed by a majority of the resident freeholders qualified to vote at school elections praying for consolidation, no election may be held.
Since it is clear that the provision for petition of the [5] resident freeholders who were qualified voters in the district is jurisdictional, there is no merit in the argument of appellant that this requirement is merely directory within the decision in the case of Chicago, Milwaukee, St. Paul P. R. Co. v. Fallon County, 95 Mont. 568, 28 P.2d 462.
Other questions have been raised, but in the view we have taken of the questions discussed, it will be unnecessary to consider them.
The judgment is affirmed.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ANDERSON, MORRIS and ADAIR concur.