author: GRIMSON, Judge.

text:
    STATE of North Dakota and the Carter Oil Company, a corporation, Plaintiffs and Respondents, v. The AMERADA PETROLEUM CORPORATION, a corporation, Defendant and Appellant, and Ernest Bylin; Alma L. Bylin, his wife; E. A. Moline and Mabel H. Moline, his wife; Lars Kvam; Mattie M. Moe; Martha Iverson; Hilda Ramberg; Inga L. Kjerstad; Mary K. Nelson; Ida G. Moe; Agnes K. Haakenson; Peter Kvam; Edward Kvam; and all other persons unknown claiming any estate or interest in or lien or encumbrance upon the property described in the complaint, Defendants.
    No. 7468.
    Supreme Court of North Dakota.
    Aug. 3, 1955.

      Cox, Cox, Pearce & Engebretson, Bismarck, for appellant Amerada Petroleum. Corporation.
    Duffy ' & Haugland, Devils- Lake; and-Bjella & Jestrab, Williston, for respondent Carter Oil Company.
    Paul Benson, Atty. Gen., for respondent State of North Dakota.
    Aylmer & Butts, Jamestown, for defend- ■ ants, Ernest Bylin, E. A. Moline and Mabel H. Moline, his wife.
    Walter O. Burk, Williston, for defendant Lars Kvam.
   GRIMSON, Judge.

This is an action to determine adverse claims to the Southeast Quarter of the Southwest Quarter (SE^ of1 SW¡4) and Lot Four (4) of Section Eighteen (18); the Northeast Quarter of the Northwest Quarter (NE^ of NW^)- and Lot One (1) of Section Nineteen (19), all in Township One Hundred Fifty-six (,156)j 'North, Range Ninety-five (95) West of the 5th. P,M.

The complaint is in the statutory form. It sets out that plaintiffs have an estate and interest in property, challenges the defendants to set out the claims they make to the property and asks that such claims may be found invalid.

All of the defendants make a general denial to the allegations of the- plaintiffs’ claim of any. estate or interest in the land. The defendant, Lars Kvam, in his separate answer sets out the purchase of this land from the State of North Dakota by a quitclaim deed. The plaintiffs reply with a general denial but admit the execution of said deed. Defendant, Amerada Petroleum Corporation, in its answer sets out the ownership of an oil and gas lease on the premises given by Lars Kvam to A. M. Fruh and Thomas W. Leach and assigned to the Amerada Petroleum Corporation. Plaintiffs reply thereto admitting the execution of said lease but deny all claims'of the defendants. The defendants, Ernest Bylin, E. A. Moline and Mabel >H. Moline answer jointly setting out the ownership of Ernest Bylin of a mineral deed to an undivided 10/145rds interest in all the oil, natural gas and other minerals in said land and the ownership of E. A. Moline of a deed to an identical interest in said land, both deeds executed by Lars Kvam. Plaintiffs reply admitting the deeds but denying the claim of the defendants.

■No answer or appearance is made by any of the other defendants.

The case was tried to the court who awarded a judgment in favor of the plaintiffs quieting title of the land in the state subject to the oil and gas lease of the Carter Oil Company. The defendants, Lars Kvam and the Amerada Petroleum Corporation appeal, demanding a trial de novo.

The facts are stipulated. Briefly, they show that on August 8, 1929, Ernest Bylin was the owner in fee simple of the land in controversy. On that date he and his wife executed a real estate mortgage to the State of North Dakota to secure a loan of $1,200. The money so loaned was from a trust fund held by the state for the Plospi-tal for the Insane at Jamestown. Default was made in the payments under this mortgage and a foreclosure was had. No redemption was made. Sheriff’s deed was issued to the State of North Dakota on August 21, 1941, and duly recorded in the office of the Register of Deeds of Williams County on September 25, 1941.

An examination of the land by agents of the Board of University and School Lands was made in 1941 and again in 1944. The land was duly appraised at $1,800.

Lars Kvam, then a tenant of the state on this land but not related to Ernest Bylin, made application to purchase said land on August 23, 1944, at the minimum price of $1,800. Thereupon a public sale of said land was advertised and Ernest Bylin, as former owner, was notified of the proposed sale, and that he was entitled to repurchase until three days before the sale. He answers : “I would be interested in knowing the amount required for me to redeem this property before sale, as I might wish to repurchase.” After some correspondence an agreement was consummated whereby By-lin agreed to pay $2,055 for the land. A contract was' entered into September 28, 1944, and $411, twenty (20) percent of the purchase price, was paid. The record shows that this was done under Sec. 15-0715(5), ¡NDRC 1943. A reservation by the state of 50 percent of the oil, gas and minerals, under Section 38-0901, NDRC 1943, was contained in that contract. Mr. Kvam was notified and the public sale was abandoned. On Oct. 3, 1945, Ernest Bylin assigned his contract to Lars Kvam, and on his payment of the balance due on the contract, the State of North Dakota, on December 8, 1945, issued its quitclaim deed to the premises to Lars Kvam “to fulfill and complete- the terms of that * * * certain contract for deed” dated September 28, 1944. On Nov. 23, 1949, Lars Kvam executed an oil and gas lease to A. M. Fruh and Thomas W. Leach, which they on Jan. 25, 1950, assigned to the Amerada Petroleum Corporation. Pie also gave the mineral deed to Bylin and Moline described in their answer.

On October 1, 1952, the State Land Commissioner advertised sale of oil and gas leases on real estate, including the premises in question and upon said sale, and in accordance therewith, on October 28, 1952, entered into a preliminary, five year, oil and gas lease with the Carter Oil Company, covering a one-half interest in the oil and gas on the premises involved, for a consideration of 25 cents per acre and a bonus of $76,862.50 and retaining the customary one-eighth (⅝) royalty.

In combating the claims of the defendants which arise out of the repurchase of the land by Bylin the plaintiffs contend that the statute, Sec. 15 — 0715 (5), NDRC 1943 under which said repurchase was made is unconstitutional and that the proceedings under it were therefore void. The defendants and appellants contend that the plaintiffs have no right to attack the constitutionality of that statute under the evidence in this case. As a first ground for that claim the appellants question the right of an officer of the state to make such an attack and cite State ex rel. Johnson v. Baker, 74 N.D. 244, 21 N.W.2d 355.

The case at bar is an action to quiet title brought by the state itself under Chapter 32-17, NDRC 1943. It ■ is an action to determine adverse claims in property in which the state, and the Carter’Oil Company claim to have an interest. It is not an action directly brought to raise any constitutional question. The constitutionality question is raised incidentally in the determination of such claims.' It is brought by the attorney general who is authorized by Section 54-1202, NDRC 1943, to institute and prosecute all cases in which the- state is a party whenever in his judgment it would be for the best interests of the state so to do. It differs -from the case of State v. Baker, supra, where the constitutional question was directly raised in the pleadings by a ministerial officer.

The appellant’s next objection is that the question of constitutionality cannot be raised because this action is not. brought directly to determine that issue and that there is no pleading claiming” unconstitu-tioriality directly; nor is there'a direct request to set aside the proceedings by which Bylin repurchased.

An action to quiet title is a direct action for the purpose of determining what, if any, interest each of the parties have in the land involved. The statutory complaint is sufficient for the commencement of an action. We held in Spencer v. Beiseker, 15 N.D. 140, 107 N.W. 189, 190, “In other words, the statute dispenses with the necessity of framing issues by a proper pleading as in other actions, and requires the court to determine ‘the validity, superiority and priority’ of the claims set up without a pleading assailing their-validity.”

In Wilson v. Polsfut, 78 N.D. 204, 49 N.W.2d 102, 104, this court sets out the nature of an action to quiet title as follows:

“In an action to quiet title ‘The -court in its decision shall find the nature and extent of the claim asserted by the various parties, and shall determine the validity, superiority, and priority of the same.’ Sec. 32-1710, NDRC 1943. Both contesting parties in this action have asked for complete, equitable relief and a determination of their respective claims regarding the tract of land in controversy. A court of equity has authority to grant as full relief as is sought by the pleadings and within the scope of proof. Styles v. Dickey, 22 N.D. 515, 526, 136 N.W. 702; 44 Am.Jur., Quieting Title, Sec. 94, p. 79.”

The defendants and appellants further claim that the plaintiffs have no right to raise any constitutional questions because they have not shown that they have been injured or affected by the transaction under the statute involved.

This- court has always given the most careful consideration to questions involving the interpretation and application of the constitution. The legislature is a coordinate body of our government and its acts are presumed to be constitutional. While the supreme court is given the power to pass upon the constitutionality of legislation it must do that with caution, even reluctance. As a general rule the courts do not pass upon the constitutionality of an act unless a decision on that point is absolutely necessary for the determination of the case. A thorough discussion of these principles is made by Judge Christianson in State v. First State Bank, 52 N.D. 231, 242, 202 N.W. 391.

“As a general rule courts will not pass upon a constitutional question and decide a statute to be invalid unless a decision upon that very point becomes necessary to the determination of the case. A court will not listen to an objection to the constitutionality of an act by a party whose rights it does not affect. The statute is assumed to be valid unless someone complains whose rights it invades.” Cooley Constitutional Limitations, Vol. 1, p. 332.
“One of the elementary doctrines of constitutional law, firmly established by - the authorities, is that the constitutionality of a legislative act is open to attack only by a person whose rights arc affected thereby. Before a law can be assailed by any person on the ground that it is unconstitutional, he must show that he has an interest in the question in that the enforcement of the law would be an infringement on his rights. Assailants must therefore show the applicability of the statute and that they are thereby injuriously affected. The burden of proof is upon those who claim themselves harmed by a statute to show how, as to them, the statute is unconstitutional.” 11 Am.Jur., Constitutional Law, Section 111, p. 748. See also 16 C.J.S., Constitutional Law, § 76, p. 157. -

This court early adopted that principle. In State v. McNulty, 7 N.D. 169, 73 N.W. 87, this court said: “It is a well-established and wholesome rule of law that no one can take advantage of the unconstitutionality of any provision who has no interest in and is not affected by it.”

That principle was reaffirmed in State ex rel. McClory v. Donovan, 10 N.D. 203, 210, 86 N.W. 709; Turnquist v. Cass County Drain Com’rs, 11 N.D. 514, 92 N.W. 852; State ex rel. Hughes v. Milhollan, 50 N.D. 184, 195 N.W. 292; Minot Special School Dist. No. 1, v. Olsness, 53 N.D. 683, 208 N.W. 968, 45 A.L.R. 1337; Anderson v. Byrne, 62 N.D. 218, 242 N.W. 687; State ex rel. Linde v. Taylor, 33 N.D. 76, 156 N.W. 561, L.R.A.1918B, 156; State ex rel. Kaufman v. Davis, 59 N.D. 191, 229 N.W. 105; King v. Baker, 69 N.D. 581, 288 N.W. 565, 125 A.L.R. 730; State ex rel. Johnson v. Baker, 74 N.D. 244, 21 N.W.2d 355.

Plaintiffs’ ground for challenging the constitutionality of Section 15-0715(5) supra, under which the resale to Bylin was made is that it grants the right of repurchase only to bona fide farmers “residing upon the land”. That is said to be an unreasonable and unjustifiable classification and unconstitutional under Section 20 of the constitution which provides that no citizen or class of citizens shall “be granted privileges or immunities which upon the same terms shall not be granted to all citizens.” It is claimed Section 15-0715(5) unjustifiably discriminates against the mortgagor or former owner, his widow and lineal descendants who are not bona fide farmers residing upon the land and are therefore not granted the privileges of repurchasing the land.

That a statute is unconstitutional on the ground that it is discriminatory can only be raised by one belonging to a class so discriminated against. They are the only ones who can be adversely affected thereby. Neither the State of North Dakota nor the Carter Oil Company belong to those classes. They cannot, therefore, raise the question of the constitutionality of that statute on that ground.

In Olson v. Ross, 39 N.D. 372, 382, 167 N.W. 385, 386, this court says:

“It is well settled that a person who is seeking to raise the question as to the validity of a discriminatory statute has no standing for that purpose, unless he belongs to the class which is prejudiced by the statute.”

In 16 C.J.S., Constitutional Law, § 88, p. 179, it is said:

“The unconstitutionality of a statute on the ground that it denies equal rights and privileges by discriminating between persons or classes of persons generally may not be raised by one not belonging to the class allegedly discriminated against.”

Neither can the plaintiffs come under any exception to that rule because they can not show any damage on account of that statute. As hereinafter shown the state received for the land more than its appraised, value and more than, enough to pay the amount due to the trust funds of the State Hospital for the Insane. The state, therefore, suffered no damage. The Carter Oil Company would have a good lease from the state whether the statute was constitutional, or not. If the statute were, .held constitutional then the transaction with By-lin would be valid and the state retained 50 percent of the mineral rights wnich ii could lease to the Carter Oil Company. If it were held unconstitutional the state owned all of the land and had a right to make the lease to Carter Oil Company. In either event the lease to the Carter Oil Company would be valid. Neither party therefore, has shown any injury to entitle it to question the constitutionality of the Act under which the resale was made.

The plaintiffs next claim that the sale to Bylin under Section 15-0715(5), NDRC 1943, violates Section 185 of the constitution of North Dakota, which provides that “neither the state nor any political subdivision thereof shall * * * loan or give its credit or make donations to or in aid of any individual, association or corporation except for reasonable support of the poor * * It is claimed that in making the sale to Bylin the state lost money which amounted to a donation to Bylin. The facts do not support that contention. It must be remembered that this repurchase was made by Bylin on September 28, 1944. That was seven years before the discovery of oil in the western part of the state. The real estate values in that part of the state then were low. The property was appraised at $1,800. That appraisal was approved by the Board of University and School Lands. That appraisal must be considered to have been the fair value of the property. There was no evidence that more could have been realized upon a public sale of the property. On the repurchase under Section 15-0715(5) the former owner had to pay the combined amounts of the original unpaid loan which the commissioner found amounted to $1,-915.12, and $21.30 costs of foreclosure, a total of $1,936.43 at the time of foreclosure as required by Section 15-0715(5). Adding interest from that time to the date of the contract the amount necessary to repurchase was found to be $2,055.0(1 The state, therefore, received all the funds of the Hospital for the Insane that were involved in the loan so that the trust fund was reimbursed in full. The amount so received from Bylin was more than the appraised value of the land. That more could have been realized a year later is no evidence of a donation to Bylin. It cannot be said, therefore, that this transaction resulted in any donation to Mr. Bylin.

Reference is made to the case of Herr v. Rudolf, 75 N.D. 91, 25 N.W.2d 916, 169 A.L.R. 1388, where it is said that Section 6-0931, NDRC 1943, providing for sales of lands held by the Bank of North Dakota violated Section 185 of the constitution,. The facts there, however, were different. The Bank of North Dakota had made a loan to Johan Rudolf, under Chapter 6-09, NDRC 1943, secured by a mortgage which was assigned to the state treasurer as security for North Dakota real estate bonds. Upon the foreclosure of that mortgage the sheriff’s deed issued to the state treasurer as trustee. The land thus became an asset in the hands of the státe treasurer for the' benefit of the real estate bo.nd sinking' fund and the real estate bond interest payment fund. Sections 54-3014 and 54-3023, ■ NDRC 1943. There existed at the time a deficiency in those funds.' The land was appraised at $2,500. Upon a proposed pub- . lie sale of the land the plaintiff offered $2,600 and indicated a willingness to bid up to $3,000. Under the challenged statute, Section 6-0931, NDRC 1943, the son of the former owner was entitled to repurchase at private sale for the appraised value, which was at least $100 and, perhaps, as much as. $500 less than plaintiff offered. ' Thus the transaction would have resulted in the loss to the trust funds which the state would have had to make good. This court held that that would have amounted to a donation of such amount to the preferred purchaser as he got that land for that much less than it could have been sold for. Such is not the case here. The land was sold to Bylin for the full amount of the mortgage loan which was more than the appraised value and more than the bid made. There was no loss to the state and no donation to Bylin.

Plaintiffs further contend that the sale to Bylin, was invalid in that the loan originally made to Bylin was from the trust fund provided by the Enabling Act for the Hospital for the Insane; that the land obtained on foreclosure of the mortgage securing that loan also became a part of the trust. They refer to sections 11 and 17 of the Enabling Act and sections 205, 215, and 159 of the Constitution of North Dakota. These sections all refer to lands or other property granted directly by the United States or donated to the state for the support of the educational and charitable institutions of the state which are made a permanent trust fund. Such lands can be sold only at a public sale, Sec. 160, Constitution. In support of that contention plaintiffs cited the case of State v. Divide County, 68 N.D. 708, 283 N.W. 184; Murphy v. State, 65 Ariz. 338, 181 P.2d 336; Ervien v. United States, 251 U.S. 41, 40 S.Ct. 75, 64 L.Ed. 128.

The question in the case of State v. Divide County, was the priority of the lien-of a mortgage to the state securing a part of the permanent school fund and the lien of taxes against the same land. The statement in the opinion [68 N.D. 708, 283 N.W. 190] that “However, when the mortgage is foreclosed and deed issued to the State, then the land itself becomes part of the permanent school fund of the State” is the statement of only the writer of the-opinion and is not the decision of this court.

In Murphy v. State the decision that lands acquired on foreclosure become a part of the trust fund, is based on the provisions of Section 1 of Article 10 of the Arizona constitution, which provides:

“All lands expressly transferred and confirmed to the state by the provisions of the Enabling Act approved June 20, 1910, including all lands granted to the state and all lands heretofore granted to the territory of' Arizona, and all lands otherzmse acquired by the state, shall be by the state accepted and held in trust to be disposed of in whole or in part, only in manner as in the said Enabling Act and in this constitution provided, and for the several objects specified in the respective granting and confirmatory provisions. The natural products and money proceeds .of any of said lands shall be subject to the same trusts as the lands producing the same."' (Emphasis supplied.)

It will be noted that this constitutional provision includes not only the lands granted by the United States but also “all lands otherwise acquired by the state”. On that and on the repetition of that phrase in Sec. 9, Art. 10, relating to sales of such land, the Arizona court based its decision and held that such lands could be sold only at public sale according to the provisions for' the sale of lands granted by the United States.

The Ervien v. United States case merely holds that the permanent trust funds can not be spent in any way inconsistent with the provisons of the constitution for the expenditures of such trust funds and is not authority on the question here in issue.

In the North Dakota Enabling Act there are specific amounts of land granted to the State of North Dakota for schools, higher education and charitable institutions. These lands and funds derived therefrom are made permanent funds for the support of such institutions. These grants were accepted by Section 205 of the constitution on the terms of the grant.

In accordance with the terms of the Enabling Act, Section 159 of the constitution provides for such permanent funds as follows:

“All land, money or other property donated, granted or received from the United States or any other source for a university, school of mines, reform school, agricultural college, deaf asid dumb asylum, normal school or other educational or charitable institution or purpose, and the proceeds of all such lands and other property so received from any source, shall be and remain perpetual funds, the interest and income of which, together with the rents of all such lands as may remain unsold shall be inviolably appropriated and applied to the specific objects of the original grants or gifts. The principal of every such fund may be increased but shall never be diminished, and the interest and income only, shall be used. Every such fund shall be deemed a trust fund held by the state, and the state shall make'good all losses thereof.” (Emphasis supplied.)

Such lands can be sold only, at public sale, Sec. 11, Enabling Act, Section 160, North Dakota Constitution.

However, the reference in Section 159 of the constitution to property received from “any other source” than the United States clearly indicates -that such property must be received for the same purpose as the lands from the United States. It must be definitely granted or donated for the educational or charitable institutions the same as lands granted by the United States. Land received by the state on foreclosure of a mortgage securing a loan from the permanent funds is not received for such purpose but for the payment of the loan. This is well shown by the enactments of the legislature regarding the manner of ■handling the state lands.

Section 156 of the constitution provides for the establishment of the Board of University and School Lands. To that board was given the control of the appraisement, sale, rental and disposal of school and university lands and the direction of the investment of the funds arising therefrom subject to the provisions of the constitution and any law passed by the legislative assembly in accordance therewith.

Section 15-0201, NDRC 1943, provides for the appointment of a Commissioner of University and School Lands whose acts are subject to the approval of the board.

Section 15-0102, NDRC 1943, gives the board full control over the sale, disposal and management of:

“a***;b***;c***; d. All lands acquired by the state through the investment of the permanent school funds of the state as the result of mortgage foreclosure or otherwise”.

Section 15-0601, provides:

“The term ‘original grant lands’ shall mean all of the public lands which-heretofore have been or hereafter may be granted to the state by the United States for the support and maintenance of the common schools or for the support and maintenance of the University, the school of mines, the state training school, the agricultural college, the school for the deaf and dumb, any normal school, or any other educational, penal, or charitable institution, and any. lands which have been obtained by the state through a trade of any such lands for other lands. Original grant lands which have been sold on contract shall retain their character as such grant lands until the contract has been paid up and a patent issued therefor.”

Chapter 15-06 provides for the sale of original land grants at public sale as provided by sections 158 and 160 of the constitution.

Section 1^-0701 reads: “The terms ‘other than original grant lands’ or ‘nongrant lands’ shall mean all lands obtained by the board of university and school lands in any manner other than that described in section 15-0601”, supra. Nongrant lands may be sold at Private sale under the provisions of Chapter 15-07.

From these provisions of the constitution and statutes it is clear that only the lands or property granted by' the United States and property received from any other source for the same purposes as said grant lands constituted the permanent trust fund. Lands acquired by the state upon foreclosure of a mortgage securing a loan made out of such trust funds do not become a part of said permanent trust. Such lands are merely security for the loan. On resale of such lands after foreclosure only the principal of the loan becomes a part of the permanent fund. Section 15-0801, NDRC 1943. They are nongrant lands and may be sold at private sale in accord with Chapter 15-07.

The plaintiffs then raised the question of the validity of the transaction between the Board of University and School Lands and Ernest Bylin in the repurchase of the land here involved. It is argued . that . even though the land in question can be sold as nongrant land Mr. Bylin was not entitled to the privilege of repurchase therein granted by Section 15-0715(5) because he was. not a farmer residing on the land.

Subsection 5 is the statute here involved which gives the special privilege to the mortgagor or former owner, his widow or one or more of his lineal descendants, who must be a bona fide farmer residing upon the land, to repurchase such land at private sale and at a price not less than the combined amounts of the original, unpaid loan plus costs paid by the state and interest unpaid at the time the state acquired title to such lands, upon the same terms as provided for in public sale except that upon such private sale a cash payment shall be not less than 20 percent of the sale price.

As has been stated the evidence shows that the land involved here was appraised as provided by the law at $1,$00- and that the appraisal and sale of the property were approved by the Board of University and School Lands. The amount of the original unpaid loan, the interest and costs paid by the state were all computed and found to amount to $2,055. Bylin was required to pay 20 percent thereof in cash. All the procedural requirements of the statute were strictly followed. The Board of University and School Lands thereupon approved the sale.

In accordance therewith a contract with Bylin was consummated on Sept. 28, 1944. On Oct. 3, 1945, Bylin assigned his contract to Lars Kvam who immediately paid what was due on the contract and received his quitclaim deed from the state on December 8, 1945. Thereafter Kvam sold some mineral acres to defendants, Bylin and Moline and entered into an oil and gas lease with Fruh and Leach and on October 28, 1952, the state, through the Board of University and School Lands entered into an oil and gas lease with the Carter Oil Company, all as heretofore stated.

None of these proceedings were questioned until the beginning of this action on February 18, 1953, an interval of about nine years after the sale of the land by the Board of University and School Lands to Bylin, when the question of his disqualification to claim the privilege under Section 15-0715(5) was raised. There is no evidence of fraud or collusion. The defendants claim the action of the Board of University and School Lands in approving that sale is final and cannot now be questioned by the plaintiffs.

In the case of State v. Oster, N.D., 61 N.W.2d 276, 278, the state in 1916, had sold certain original grant lands to one C. J. Furst who duly assigned his contract to the defendant, Oster. Oster in due time paid the contract in full and received patent conveying fee title to the land. The sale of coal lands is prohibited by the constitution and by statute. For that reason a provision was included in the contract for deed that if the land sold was found to be coal land then it should immediately revert to the state and the contract would become null and void. A reservation covering that was included in the patent. In 1950 the state brought an action to cancel the patent on the grounds that the premises were coal land. The court reviews the steps necessary for the Board of University and School Lands to take before the sale of any lands including the determination of whether any such land was coal land and says:

“All sales are required to be approved by the Board of University and School Lands and no sale shall be approved 'unless, from an examination of the certified lists and other information received and investigation made, it shall appear to the board that the sale was made in accordance with the provisions of this title and without fraud or collusion.’ Sec. 15-0805, 'NDRC 1943, Sec. 174, R.C.1905. After full compliance with all of the terms of his contract, the purchaser shall be issued a patent, ‘signed by the governor and attested by the secretary of state with the great seal of the state, and shall be countersigned by the commissioner of university and school lands' with the seal of the board.’ Sec. 15-0816, ND RC 1943, Sec. 189, R.C.1905.
“A consideration of the foregoing constitutional and statutory provisions, makes it clear that, while the sales of state lands are surrounded with multiple safeguards to insure against illegal sales, inadequate price and fraud and collusion and to procure an avoidance of contracts of sale for such reasons prior to the issuance of a patent; it was nevertheless the constitutional and legislative intent that after a good faith determination by the board that the sales were not subject to such infirmities, and the issuance of patents to the lands sold, that all questions of legality should be concluded and the sales should be final and irrevocable.”

In Syllabus No. 4, the court held:

“The decision reached by the Board of University and School Lands in passing upon the validity of a contract for the sale of school lands, that such lands were not ‘coal lands’ and therefore legally subject to sale is, in the absence of fraud or other evidence impugning the good faith of the board, final 'and the title thereafter conveyed by a patent issued to the purchaser of such lands may not be defeated by a subsequent discovery of a coal deposit therein.”

In Fuller v. Board of University and School Lands, 21 N.D. 212, 219, 129 N.W. 1029, 1032, this court passed upon the power of the Board of University and School Lands. After reviewing the constitutional and statutory provisions regarding the Board, this court says:

“It has full control of the disposal of public lands under the statute and sec. tion 174 of the Revised Code of 1905 [providing that the Board shall pass upon all sales of land] does not in any wise abridge or limit such control or discretion on so important a matter as the very act of final determination as to whether to ratify the sale and thereby" pass the matter from its control. In other words, it would be an unreasonable construction of the statute to say that the board has full authority as to the disposal of public lands except as to the most important step in the proceedings, that of determining compliance or noncompliance with the law, adequacy or inadequacy of price, fraud- or collusion or absence thereof in the sale, all o.f them matters regarding which it was the very spirit and object of the Constitution and the law that it should be passed upon by a board whose judgment should be as sound as it should be conclusive. Indeed, the personnel of the board but emphasizes the judgment and discretion presumed to be exercised in the alienating for price of state property, the Constitution providing for the united judgment thereon of a board- composed of the Governor, Superintendent of Public Instruction,Attorney General, Secretary of State, and State Auditor. * * *
“Viewed in the light of the reasons for these constitutional and statutory enactments, the importance of the duties conferred upon the board so created the necessity for the exercise of .a high degree of judgment and discretion by a tribunal competent to do so and charged with administering as a trustee of the millions in this greatest of all state funds — our school fund— would it. not be most absurd to do otherwise than to give full force to the mandate of the Constitution and statute granting full power to this board in the exercise of discretion and judgment in this the most important part of its duties, approval of sales of state ■property? We must conclude such duty is wholly discretionary, and its decision as a body is a quasi judicial determination.”

In the case of State v. Hewitt Land Co., 74 Wash. 573, 134 P. 474, 478, a sale of state lands by the land department was involved. The powers of the land department there are practically the same as the powers given to our Board of University and School Lands, Section 4 of Article 16 of the Washington constitution prohibits the sale of more than 160 acres of grant lands in one parcel. The sale involved was a tract of 315 acres. The court says:

“The officers of the state have exercised the power vested in them in an irregular way. In exercising their admitted power they have ignored or overlooked the letter of the law; instead of offering the land in two tracts, they have offered and deeded it as one tract. As against the interest of those who have come into the possession and ownership of land so sold, a purchaser for value and without fraud on the part of any one, the state cannot be heard to question its conveyance. 32 Cyc. 1058.”

In Dickson v. Luck Land Co., 242 U.S. 371, 37 S.Ct. 167, 168, 61 L.Ed. 371, the suit was between two grantees from an Indian patentee who, while a minor, obtained his patent under an act of Congress allowing land to be patented to Indians who had reached their majority. In the course of its decision, the Court makes the following statement:

“There is no mention of his age in the patent, and yet it must be taken as impliedly containing a finding that he was then an adult. This is so, because, every patent for public or Indian lands carries with it an implied affirmation or finding of every fact made a prerequisite to its issue, and because the provision in the act of 1907 made the majority of the allottee a prerequisite to the issue of this patent.”

In the case of Standard Oil Co. of California v. United States, 9 Cir., 107 F.2d 402, 410, the United States brought an action to quiet title and for damages. From a decree in favor of the United States the defendants appealed. The question of the authority of the Secretary of the Interior to determine the mineral character of lands arose. The court says:

“The problem, then, as we understand it, is not what authority Congress may confer upon the Secretary, but what authority it has conferred in relation to the administration of this grant. If Congress has clothed the Secretary with general authority to administer the grant, and if his decision of fact in this instance was made within the scope of such authority, there can be no doubt that his decision is conclusive on the courts, in the absence, at any rate, of fraud or imposition.” See also Noble v. Union River Logging R. Co., 147 U.S. 165, 13 S.Ct. 271, 37 L.Ed. 123; Vance v. Burbank, 101 U.S. 514, 25 L.Ed. 929; United States v. Southern Pacific R. Co., D.C., 43 F.2d 591.

The matter of the residence of Bylin was before the Board of University and School Lands for decision when they approved the sale to him of the land involved. Even if irregular the courts can not now change that decision.

The plaintiffs’ final objection to the sale of this land to Bylin cites Section 15-0806, NDRC 1943, which provides:

“Any sale made by mistake, or not in accordance with law, or obtained by fraud shall be void, and the contract of purchase issued thereon shall be of no effect.”

The plaintiffs have expressly denied any implication of actual fraud or collusion but have suggested that insofar as the officials of the department are concerned, their action in negotiating the contract amounted to constructive fraud. This, however, was one of the questions necessarily passed upon by the board and is not subject to review here. In Fuller v. Board of University and School Lands, supra, the court said:

“The board must determine to its own satisfaction that the sale was in accordance with law, and without fraud or collusion, before it can approve such sale. An investigation must be made to determine this, but the amount of investigation and the quality and sources of information are left for its determination.”

In accordance with the statutes defining the authority of the Board of University and School Lands, and these authorities, we must conclude that the board in carrying out its duties and in the exercise of its powers found that the sale to Bylin was. made according to law. As against those, who have since secured an interest in the land in good faith that decision must be held final.

The final question for consideration is whether the state on the sale of the property involved to Bylin was entitled to withhold 50 percent of the gas, oil and mineral rights under Sec. 38-0901, NDRC 1943, which reads:

“In every transfer of land, whether by deed, contract, lease, or otherwise, by the state of North Dakota, or by any department thereof, fifty percent of all oil, natural gas, or minerals which may be found on or underlying such land shall be reserved to the state of North Dakota. Any deed, contract, lease, or other transfer of any such land made after February 20, 1941, which does not contain such reservation shall be construed as if such reservation were contained therein. The provisions of this section shall apply to all lands owned by this state or by any department thereof regardless of how title thereto was acquired.”

It is argued that this transaction amounted to a redemption and that, therefore, this statute does not apply and that Bylin recovered his total interest in the land. This, however, is not a redemption but a sale of the property involved. Section 15-0715(5), NDRC 1943, provides that when the former owner or one of the members of the class therein specified make an offer to repurchase the lands on the conditions therein described the Board of University and School Lands shall resell any of such lands to any such bona fide applicant provided in the law. In the instant case this involves the sale of lands that had been obtained by sheriff’s deed upon a foreclosure of a state mortgage.

Under a similar statute the right of repurchase by the former owner of lands lost to the county on tax proceedings has been construed by this court as an additional privilege extended to the former owner. In Buman v. Sturn, 73 N.D. 561, 571, 16 N.W.2d 837, 842, this court said:

“That statute [Chapter 238 S.L.1939] has no connection with or effect upon the vesting of title in the county. It confers an additional right (erroneously designated as a right of redemption) upon the former owner, making him a preferred purchaser without profit to the county. It is a special statute giving him a second chance as a special act of grace.” See also Horab v. Williams County, 73 N.D. 754, 759, 19 N.W.2d 649; Stutsman v. Smith, 73 N.D. 664, 675, 18 N.W.2d 639; Coverston v. Grand Forks County, 74 N.D. 552, 23 N.W.2d 746; Blackford v. Judith Basin County, 109 Mont. 578, 98 P.2d 872, 126 A.L.R. 639; Yates v. Hawkins, 46 N.M. 249, 126 P.2d 476.

In Ulrich v. Amerada Petroleum Corporation, N.D., 66 N.W.2d 397, 404, we say:

“This court has repeatedly held that these provisions for * * * repurchase of property by the former owner are merely an additional privilege extended to the former ownér. He is not thereby granted any vested interest in the property.”

As the facts in the case at bar show the time -for redemption had long expired. The state owned the land by virtue of a sheriff’s deed. Section 28-2414, NDRC 1943, provides that a sheriff’s deed “shall vest in the granted as good and perfect a title in the premises therein mentioned and described as was vested in the debtor at or after the time when such real property became liable to the satisfaction of the judgment.” In State ex rel. Forest Lake State Bank v. Herman, 36 N.D. 177, 161 N.W. 1017, this court held that “upon the expiration of the period for redemption the full beneficial ownership of the debtor passes to the purchaser at the execution sale * * *.'' In Nichols v. Tingstad, 10 N.D. 172, 86 N.W. 694, this court held that "A sheriff’s deed to a purchaser under a valid foreclosure and sale conveys to such purchaser all the right, title, and interest which the mortgagor had in such lands at the date of the execution and delivery of such, mortgage * * *.'' See also the North Dakota Horse & Cattle Co. v. Serumgard, 17 N.D. 466, 117 N.W. 453, 29 L.R.A.,N.S., 508.

The abstract in evidence shows that Bylin had clear title to this land when the mortgage was given. It is clear that Bylin lost all his right, title and interest to the land when the time of redemption expired and that the sheriff’s deed obtained thereafter vested the state with his complete title to the premises here involved.

Section 15-0715(5) provides that- “the board of university and school lands shall resell any of srfch lands to any such bona fide applicant * * There is no provision such as there is in Sec. 57-2819, NDRC 1943 giving the prior owner the right to repurchase “all real estate” which he forfeited to the county. The right to purchase all interest in the property is not included in the privilege granted by Sec. 15-0715(5). When the state obtained title under Section 15-0715(5) it was an absolute title including all interest in the land and which it could sell on its own conditions.

“The State, of course, may own and hold property. Unless prohibited by some constitutional provision it may dispose of it just as any citizen may dispose of his property.” Herr v. Rudolf, 75 N.D. 91, 99, 25 N.W.2d 916, 919, 169 A.L.R. 1388.
“ ‘The proprietary rights of a state are as absolute and unqualified as those of an individual. It may, in the absence of any self-imposed restrictions in its constitution, sell and dispose of its property upon its own terms and conditions * * *.’ ” State ex rel. Equity Farms v. Hubbard, 203 Minn. 111, 280 N.W. 9, 12.

The legislature by the enactment of Section 38-0901, supra, laid down as a condition on all transfers of state land that 50 percent of the oil, natural gas and minerals therein be reserved in the state.

That this was the intention of the legislature is borne out by its subsequent action. In 1951 the legislature enacted Chapter 231 S.L.1951, providing that thereafter any lands sold by the state- or any of its departments to the former owner, his spouse, or lineal descendants in the first degree “shall be sold free of any reservation of minerals provided for in section 38-0901 of the North Dakota Revised Code of 1943 or in chapter 149 of the 1939 session laws.” That shows the original intention of the legislature to retain the 50 percent of the minerals in such cases up to that time.

It was further provided in Sec. 2 of that chapter that when the state or any of its departments had “subsequent to March 12, 1939, sold lands to any person from whom the state derived title to such lands, or to his spouse or to his lineal descendants in the first degree, and such purchaser or his spouse or his lineal descendants in the first degree are the owners of such lands at the date of the passage of this Act, the state and its departments shall release to such person any reservation of minerals made under section 38-0901 of the North Dakota Revised Code of 1943, or under chapter 149 of the 1939 session laws.” While this last section has been declared unconstitutional by this court in Solberg v. State Treasurer, 78 N.D. 806, 53 N.W.2d 49, it still shows the legislative interpretation of Sec. 38-0901, supra, to the effect that by said section the legislature had reserved in the state 50 percent of the oil, gas and minerals in all state lands sold by the state or its departments and that said reservation was still in existence. Otherwise there would have been no need for a legislative release thereof. The sale to By-lin was made in 1944. Clearly the state had a right to reserve 50 percent of the oil, gas and minerals in and under the land sold by the state to Bylin.

This action of the legislature also answers the claim of the Amerada Petroleum Corporation that because there is no reservation of oil rights in Section 15-0715(5), supra, enacted in 1943, that amounts to an implied repeal of Section 38-0901, supra, enacted in 1941. That no such repeal was intended is shown by the acts of the legislature in 1951, Chapter 231, supra, making further disposition of the oil rights retained under Section 38-0901, supra. There was no conflict in regard to those two sections. There is no relation between them.

We have come to the conclusion that the plaintiffs have not shown any right to question the constitutionality of Section 15-0715 (5), supra; that no damage has been shown by the plaintiffs; that the repurchase of that land by Bylin under that statute must be held valid; that the state had a right to reserve 50 percent of the oil, gas and minerals and that the other 50 percent was included in the transfer to Kvam. It follows that the lease by the state of 50 percent of the oil, gas and minerals to the plaintiff, Carter Oil Company, is valid, and that Kvam had a right to lease the other 50 percent as well as to convey mineral rights to Bylin and Mo-line.

The judgment of the district court is modified and the case is remanded for entry of judgment in accordance herewith.

BURKE, C. J., and JOHNSON, SATH-RE and MORRIS, JJ., concur.


source: Caselaw Access Project

author: BURKE, Chief Justice.

license: Public Domain

text:
    J. K. KENNELLY and Mary Kennelly, Petitioners, v. The Honorable Mark H. AMUNDSON, one of the Judges of the District Court in and for Morton County, Sixth Judicial District, State of North Dakota, Respondents.
    No. 7529.
    Supreme Court of North Dakota.
    Aug. 25, 1955.
    Kelsch & Scanlon, Mandan, for petitioners.
    J. K. Murray, Bismarck, for respondents.
   BURKE, Chief Justice.

By his petition in, this case, petitioner seeks to invoke the supervisory jurisdiction of this court to review certain interlocutory orders of the District Court of Morton County.

The orders in question were entered in the case of Schaff v. Kennelly which is an action, now pending in the District Court of Morton County, to recover damages for alleged fraud in the negotiations leading to the execution of a contract for the sale of real property, Prior to the institution of ■ the present action between the parties, Schaif had sued Kennelly for the return of the down payment made by him upon the execution of such contract. In that action he had alleged that he had rescinded the contract by giving a statutory notice of rescission on the ground of fraud, as a basis for his suit. The defendant Kennelly by answer denied the legal sufficiency of the notice of rescission and the fraud. By cross complaint he demanded a cancellation of the contract upon the ground of plaintiff’s default. Trial of the action resulted in a verdict for the plaintiff. The trial court however granted judgment notwithstanding the verdict in favor of the defendant for the dismissal of plaintiff’s claim and for the cancellation of the contract. Upon appeal of that judgment to this court, the judgment was affirmed. Schaff v. Kennelly, N.D., 61 N.W.2d 538. This court’s decision in the case was founded chiefly upon the court’s conclusion the plaintiff’s attempted rescission was insufficient to constitute a rescission as a matter of law. Schaff v. Kennelly, supra, 61 N.W.2d at page 549.

Plaintiff thereafter commenced the pending action to recover damages on the ground of fraud. This action' rests upon the identical contract and state of facts which were' involved in the prior action. Defendant demurred to plaintiff’s complaint. The demurrer was overruled. Thereafter defendant answered denying all of the allegations of fraud and deceit, setting up affirmative defenses of election of remedies, res judi-cata, waiver and estoppel and alleging that the action was purely vexatious and a fraud on the administration of justice. After answer plaintiff moved for judgment on the pleadings or for the certification of certain controlling questions of law to the Supreme Court for its decision thereon. Both motions were denied. Defendant then appealed from the orders denying such motions and this court dismissed the appeals on the ground the orders appealed from were not appealable orders. Schaff v. Kennelly, N.D., 69 N.W.2d 777.

Plaintiff then filed the instant petition seeking a review of the same orders by the exercise of this court’s supervisory jurisdiction.' We are satisfied that the petition does not present a case which would justify the exercise of the power of superintending control. The only detriment which the plaintiff will suffer by virtue of the orders of the District Court will be that he will be forced to go to trial upon the merits of the case. If the judgment upon that trial is adverse, he may appeal from the judgment and upon that appeal he may have the correctness of the orders he now complains of, reviewed.

With respect to petitioner’s detriment and available remedies his situation is in all respects identical with that of the petitioner in the case of Stormon v. District Court, 76 N.D. 713, 38 N.W.2d 785, and we are of the view that our opinion in that case is controlling here. In that case we said, 76 N.D. 718, 719, 38 N.W.2d 785, 787:

“Every right which the proponent claims, can be presented and adjudicated in the ordinary course of procedure. Trial, verdict, judgment, and appeal afford him an adequate remedy by which he may reach a final juridical determination of the litigation. There is no emergency in the sense that a lapse of time might endanger or defeat the ends of justice. * * * No irreparable injury is apparent, in fact, none is claimed other than the inconvenience and expense of another trial. Convenience in securing a determination and the acceleration of the progress of the litigation while in themselves worthy do not warrant us in exercising superintending control and thus in effect providing a direct appeal where no such appeal has been provided by statute. Where as in this case there is no emergency and no great hardship is apparent, our exercise of superintending control would be inconsistent with the evident intention of the legislature which provided no direct appeal from the order in question.”

To hold that the detriment of having to go to trial is a detriment sufficient for a party to invoke the power of superintending control would be to say that superintending control may be used as a substitute for appeal from many intermediate orders which are not appealable under our statutes.

The petition is denied.

GRIMSON, JOHNSON and SATHRE, JJ., concur.

MORRIS, J., did not participate.


author: JOHNSON, Judge.

text:
    E. L. KINER, Sr., Herman Mosolf, A. W. McDonald, Ralph M. Smith, and Melvin Juhl, Plaintiffs and Appellants, v. Alice WELL, County Superintendent of Schools of Pembina County, Defendant and Respondent.
    No. 7512.
    Supreme Court of North Dakota.
    Aug. 26, 1955.

      Day, Stokes, Vaaler & Gillig,- Grand Forks, for plaintiffs and appellants.
    Fred.S. Snowfield, Cavalier, for defendant and respondent.
   JOHNSON, Judge.

This is an action for 'injunction. It involves the reorganization of six 'school districts. It is brought by E. L. Kiner, a taxpayer and resident of Murphy School District No. 71, by He'rm'an' Mosolf,' a taxpayer and resident of Mtigford'-School District No. 93, by A. W1 McDonald, as a taxpayer’'and résident of School District No. 16, and by Ralph M. Smith and Melvin Juhl, as taxpayers and residents of'Wilson School ' District No. l‘S, all' in Pembina County, North Dakota. They question the validity of an election held on the 19th day of February, 1951, at Bowesmont in School District No. 74, involving a 'proposed reorganization of the school districts mentioned into a new school. district .to be known as Bowesmont School District. They pray that the election be declared, invalid, void and of no effect, and also that the defendant, the County Superintendent of Schools of Pembina County, be permanently enjoined from doing any act pursuant to the election.in connection with the new school district consisting of the adjustment of property assets, debts and liabilities or from taking any steps to organize and establish such district, or doing any act in connection therewith.

The election, was held pursuant to Chapter 15-53, NDRC 1949 Supp., entitled, “Act to provide for the reorganization of school districts”.

The amended complaint sets forth that the election was called by the County Superintendent of Pembina County for the purpose of approving or rejecting the proposal for the formation of a school district to be known and bear the name of “Bowesmont School District.’^ The complaint sets forth the notice of the special election as published., as follows: :

“Notice is hereby given that a -Spe- ■ cial School Election will be held on1 Monday the 19th day of February, 1951, at the polling place hereinafter specified and within'the proposed Reorganized School District hereinafter named and described.
“Said Special School Election is for the purpose of approving or rejecting a proposal for the formation of a new school district to be known as', and-bear the name of- Bowesmont School District, with the following boundaries, and to include the present entire districts of Murphy No. 71, District No. 16, Wilson No. 15, Mugford No. 93, Lincoln No. 12 and Bowesmont No. 74, all in Pembina County,-.the legal, description of -all lands comprising said proposed new school district being as follows: Namely, all of Lincoln Township, including Bowesmont, except Sections 19, 20, 21, 28, 29, 30, 31, 32 and 33 in Township 160, -Range 51, and all of South Joliette Township except Sect-ions -4, 5, 6, 7, -8, -9, .16, 17 and '.18 ⅛'-■Township'161, Rángé 51,‘together with all-railroad and other property located' within said boundaries, all in said Pembina County;
“Providing, in; the . formation of said Bowesmont School District, as above described, .that in the adjustment of assets and liabilities between, present established school districts and the proposed new district, any "and all cash balances in or -available to. the treasury of any old district included in the proposed new district, are to be transferred to and become one property of said proposed new school district; that the real estate; buildings,. equipment and other school property of said old districts are to become the property and assets of .the proposed new district, and that -debts and liabilities of said old districts are to become debts and liabilities of said proposed new district;
“Provided, Further, That said proposed new district shall be a common school district, having a School Board composed of five directors to be elected from designated geographic areas, 'as follows: One director from the rural geographic area now comprising Wilson District No. IS; one from Mug-ford No. 93; one from Lincoln No. 12; one from Bowesmont No. 74 and one from the area now comprising districts No. 16 and Murphy No: 71.
"The polling place established for said election is at the Community Hall-in Bowesmont, in District No. 74, for all electors of said entire proposed district.
"Polls will be opened at 11:00 A-M. and closed at 7:00 P.M. of that day.
“Dated at Cavalier, North Dakota this 2nd day of January, 1951."

It is then alleged that the election was held on the 19th day of February, 1951, and ballots were presented which did not conform to the notice of the special election • in that they did not except Murphy School District No. 71, consisting of Sections 4, 5, .6, 7, 8, 9, 16, 17 and 18 in Township 161, Range 51, but included the same contrary to the notice; that the ballot included property that was not described in the notice of the special election, as follows: “Sections 1, 2, 11, 12, 13 and 14 of North Midland Township 160, Range 52”; that the ballot used in the election read as follows:

“Shall a new School District be formed to be known as, and bear the name of Bowesmont School District, with the following boundaries, and to include the present entire districts of Murphy No. 71, District No. 16, Wilson No. 15, Mugford No. 93, Lincoln No. 12 and Bowesmont No. 74, all in Pem-bina County, the legal description of all lands comprising said proposed new school district being as follows,- namely:
“All of Lincoln Township including Bowesmont, except Sections 19, 20, 21, 28, 29, 30, 31, 32 and 33 in Township 160, Range 51; all of South Joliette Township in Township 161, Range 51 and Sections 1, 2, 11, 12, 13, and 14 of North Midland Township in Township 16Q, Range 52, together with all railroad and other property located within said boundaries, all in said Pembina County:
“Providing, in the formation of said Bowesmont School District, as above described, that in the adjustment of assets and, liabilities between.present established school districts and the proposed new district, any and all cash balances in or available to the treasury of any old district included in the proposed new district, are to be transferred to and become the property of said proposed new school district; that the real estate, buildings, equipment and other school property of said old districts are to become the property and ■ assets of the proposed new district, and that debts and liabilities of said old districts are to become debts and liabilities of said proposed new district;
“Provided Further, Thát said proposed new district shall.be a Common School District, having a School Board composed' of five directors to be elected from designated geographic areas, as follows: one director from the rural geographic area now comprising Wilson'District No. 15; one from Mug-ford No.' 93; one from Lincoln No. 12; one ‘from Bowesmont No. 74; and one from the area now comprising districts No. 16 and Murphy No. 71?”

It is also alleged that the errors in the notice of the special election prejudiced the voters; that voters did not attend the election who would have voted against the proposition, which would have changed the results of the election-; that many voters who did not attend the election and vote were confused as to the legal significance of their ballot and the results of the election; that their votes as cast were not as intended; that the notice of election was not given as required by law to the voters residing in the territory included in the ballot, and voters were misled' thereby and prevented a free and intelligent vote; that the plaintiffs were prejudiced by the failure of the notice to comply -with the statutory requirements in stating the terms of adjustment of property, debts and liabilities, said statement being only in general terms as indicated in the notice and not as required by law; Aat necessary committees were not appointed and organized; that the duties and functions of the necessary committees were not performed as required; that necessary meetings were not held nor were notices given as required by law; that the necessary steps prior to thé election were not performed; that the plaintiffs were prejudiced thereby, and that the subsequent election was without jurisdiction and void. It is further alleged that the notice of the special election did not conform to Section 15-5318, NDRC 1949 Supp. in that it did not contain a description of the boundaries of the proposed new district and that as a result the election was void; that the election was .also invalid as the village of Bowesmont voted as a unit with the rural area. It is further alleged that the election was invalid in that the same attempted to place before the voters two distinct dr a double proposition, in that the ballot included the following:

“Provided, Further, That said proposed new district shall be a Common School District, having a School Board composed of five directors to be elected from designated geographic areas, as follows: one director from the rural geographic area now comprising Wilson District No. 15; one from Mug-ford, No. 93; one from Lincoln No. 12; one from Bowesmont No. 74, and one from the area now comprising districts No. 16 and Murphy No. 71.”

It is also alleged that pursuant to the results of the special election, the county superintendent will, unless enjoined, proceed to make adjustment of property assets, debts and liabilities and organize and establish the new district to the detriment of the plaintiffs -and all interested parties and that the defendant will call a special election for the purpose of electing directors for said school district áhd perform other duties and expend moneys of the plaintiffs and other interested parties; that the plaintiffs have no plain, adequate or speedy remedy at law, and that they will be without relief unless granted the relief requested in the complaint by way of an injunction.

The defendant answers generally and specifically denying the allegations of the complaint and asserting that no prejudice was created by the discrepancy occurring in the description of the areas and the boundaries of the newly proposed district as between the notice of the special election and the ballot, and further contending that the proceedings taken for the reorganization of the school district were all in accordance with substantial compliance required by the reorganization law and asks for a dismissal of the action.

The action was heard by the district court of Pembina County and a judgment was rendered dismissing the action and dissolving a temporary restraining order. The plaintiffs have appealed and demanded a trial de novo.

As will be noted from the pleadings, the reorganization plan under the act consisted of six old school districts in the south-central part of Pembina County, North Dakota. The area proposed to be organized into a new school district included of the following districts: Murphy No. 71; District No. 15; District ¡No. 16; Mugford No. 93; Lincoln No. 12, and Bowesmont No. 74. The proposed plan for the reorganization of the six school districts mentioned was considered at a meeting that took place on October 3, 1950. About forty-five persons were present. All districts except No. 16 were represented. After some discussion of the proposed plan for the reorganization of the Bowesmont School District, on motion, the plan as proposed was approved by a vote of 21 in favor and 3 opposed. Final action on the petition, however, was deferred until a later date.

On October 25, 1950, the county 'committee of Pembina County met for the purpose of taking official action 'on the proposed plan for the reorganization of Bowes-mont School District which had been under discussion at the meeting on the 3rd day of October. At.the October 25th meeting official action on the result of the reorganization hearing held on October 3rd was taken. A plan was drawn up for the formation of a new school district to be known as the Bowesmont School District, and was approved by unanimous vote of the Pem-bina County school reorganization committee. This plan provided for the adjustment of assets and liabilities between the old districts and the new district, and also proposed that the new district should be a common school district with five directors. The plan as proposed and approved by the county committee was' submitted to the state committee and approved by it on November 3, 1950.

A special election was called for the purpose of “approving or rejecting the proposed new school district”, on the 19th day of February, 1951. At that election 155 votes were cast, of which a total of 97 were in favor of the reorganization of the new Bowesmont School District and 58 against. The judges of the election declared the reorganization carried for the formation of the new district.

On the 25th day of May, 1951, 95 days after the election approving the formation of'the new Bowesmont School District, the plaintiffs commenced this action. On the 31st day of May, 1951, a temporary restraining order was issued and an order to show cause calling for a hearing thereon on the 12th day of June, 1951, at 2 o’clock in the city of Cavalier, North Dakota. The defendant demurred to the complaint alleging that it did not state facts sufficient to constitute a cause of action. After hearing on the demurrer and on September 10, 1951, it was sustained. The plaintiffs were given fifteen days in which to amend the complaint. They served an amended complaint and answer was interposed. The trial in district court took place' on the 26th day of May, 1953. No testimony on the merits was submitted except as disclosed by the written records of the county committee. The district court dismissed the. action of the plaintiffs, and judgment was entered on the 30th day of April, 1954. Notice of entry of judgment was served on the 3rd day of May, 1954. On the 31st day of August, 1954, notice of appeal was served upon the attorney for the defendant. No stay of execution was obtained.

The plaintiffs and appellants base their argument on three main points:

1. That the counting of the votes of both the town of Bowesmont and the rural area as a unit for or against the proposed establishment of a new . school district violated the spirit and intention of the reorganization law.
2. That errors appeared in the election procedure,which violated and made void the election.
3. That there was no substantial compliance with the reorganization act.

Section 15-5318 of the ¡NDRC 1949 Supp., being the statute in force at the time of. the special election held in Pem-bina County concerning the reorganization of the Bowesmont School District, provided in part as follows:

“Any territory within the proposed new district consisting of one or more incorporated, villages or cities shall vote as -a unit, and all rural territory within such proposed new district shall vote as a unit. For the purpose of this section all incorporated areas in the proposed new districts, regardless of their number and size, shall be considered as one incorporated area, and all rural areas in the proposed new district, regardless of size, shall be considered as one' rural area. * * * ”, (Emphasis supplied.)

The town of Bowesmont was located in the area of Lincoln Township. It had no separate government from that of the township and as far as the record shows is an unincorporated town. It must be presumed that at the time of the enactment of: this statute, the legislature was cognizant of the common, ordinary meaning attached to the word “incorporated.”

“Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained.” Section 1-0202, NDRC 1943.

Public corporations, under our law, include a county, city, village, township, school district, and any body corporate except a private corporation. Section 21-0401,-NDRC 1943. A public corporation is one created by the state for political purposes and to act as an agency in the administration of civil government, generally within a particular territory or subdivision of the state, and usually invested, for that purpose, with subordinate and local powers of legislation; such as the county, city, town or-school district. Webster’s New International Dictionary, 1955 Edition, defines the word “incorporate” as follows: “To form into a legal body, or body politic; to constitute into a corporation recognized by law, with special functions, rights, duties, and liabilities.”

Incorporation is a term used to describe results of an entire course of legal proceeding whereby a municipality is brought into existence by a special legislative act or by proceedings and organization under general law or by adopting home-rule charter under constitutional provisions. City of Sherman v. Municipal Gas Co., 133 Tex. 324, 127 S.W.2d 193, 195.

Under our statutes, certain legal procedure is necessary to create a village, city,, township, county or school district. Unless a village has been created as provided by statute, and the - necessary steps required thereby taken, the town i-s no.t an incorporated village in the sense used in the'school reorganization statute'. We hold that the town of Bowesmont was 'a rural area and does not come within the word “incorporated” as used in the reorganization law. It was, therefore, proper to count the votes cast in the special election held on February 19, 1951, as one unit. •

The most serious question presented in this action is the variation between the description of the area of the established school districts to comprise the new district, as set out in the notice of the special election, and the description thereof,- as set out in the ballot. The map in evidence and the ballot correctly describe the area to be reorganized into the Bowesmont School District.

It is noted that both the posted and the published notice of the election excluded from the area Sections 4, 5, 6, 7, 8, 9; 16, 17, and 18 of South Joliette Township 161, Range 51. This is the area that comprises Murphy School District No. 71. This area was to be included in the reorganization of the new school district and should have been included in the notice of election. The notice, however, is correct insofar as it refers to Murphy School District No. 71. All the districts involved in the reorganization are correctly described in the notice by name and riumber.

The question .presented here is whether the omission of the area .mentioned in the notice is of such a nature as to require the invalidation of the election. There is no evidence showing that any voter was misled, confused or .prejudiced by the description error contained in the notice of the special election. Nor was any evidence presented by the plaintiffs or by any elector in the area omitted from the notice indicating that the - voters within that area, which should have been included in the notice, did not avail themselves of the .opportunity to vote upon the question.

It is also contended that the failure to describe, in both the posted and published notice of the election, Sections 1, 2, 11, 12, 13, and 14 of Midland Township is another reason- why the election is invalid. This discrepancy in the notice does not appear to be serious. Both the notice and the ballot specifically state that all of Mugford School District No. 93 was a part of' the newly proposed school district. Reference to the map discloses that Mugford School District No. 93 is partly located in Midland Township and partly in Lincoln Township. The sections omitted by specific reference were that part of the area of Mugford School District No. 93 which is located in Midland Township. No evidence was introduced to show that either the plaintiffs or anyone else was prejudiced or prevented from intelligently casting his vote at the special election by reason of this error. The record is silent as to whether or not the people within the area which should have been included in the notice voted or failed to do so.

. “It is equally clear in the case of special elections wherein the necessity for notice is so much more urgent that the rule as to compliance with statutory requirements in the giving of notice should be much more strictly enforced. Considerable liberality is, however, allowed even in these elections and it is a rule of pronounced authority that the particular form and manner pointed-out by a statute for giving notice is not essential, provided, however, there has been a substantial compliance with statutory provisions. Following this rule, it has been held that where the great body of the electors has actual notice of the time and place of hold-' ing the election and the question submitted, the requirement as to notice is satisfied." Thus, the formalities of giving notice, although prescribed by statute, are fréquently considered directory merely in absence of an express declaration that the election shall be void unless the formalities are observed.” IS Am.Jufi., Elections, Sec. 110, p. 248.

Since the courts hesitate to disfranchise even the few, there is greater reason, then, for reluctance in setting aside the .expressed will of all by the declaration that a whole election' is invalid. Hence we find the rule of law to be that generally where the statute does not in express terms declare that the election shall be void or by reasonable inference, .invalidate the election, the’election will be sustained and the violation of statutes will be treated as an irregularity, going to the form, rather than to the substance where, from all of the facts, the court does conclude that despite the departure from the statutory requirements a full and" fair ballot has been cast and a true and fair return of the entire election has been canvassed arid made. Kerlin v. Devils Lake, 25 N.D. 207, 141 N.W. 756.

There is no express declaration in the school district reorganization act or otherwise that an election shall be void unless all formalities- of the statutes are strictly observed.

“We believe the general rule with respect to elections is as stated in Jones v. State, 153 Ind. 440, 55 N.E. 229, 233:
“ ‘All .provisions of the election law are mandatory, if enforcement is sought before election in a direct proceeding for that purpose; but. after election all should be held directory only, in support of the" result, unless of a character to effect an obstruction to the free and intelligent casting of the vote or to the ascertainment of the result, or unless the provisions affect- an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void.’
“See also City of Jackson v. Nims, 316 Mich. 694, 26 N.W.2d 569; Kiernan v. City of Portland, 57 Or. 454, 111 P. 379, 112 P. 402, 37 L.R.A.,N.S., 332; 28 Am.Juris. 162; 20 C.J. 181, Sec. 223 et seq., 29 C.J.S., Elections, § 214. The reason behind this rule is that the will of the people freely and intelligently -expressed ought not to be defeated because of the mistake of an officer or of any technical fault.” City of Fargo v. Sathre, 76 N.D. 341, 36 N.W.2d 39, 47 and 48.

There is. no charge that there was any fraud or irregularity in the conduct of the election-itself, nor that a fair .and full expression of the public will was prevented by reason pf anything that. .was done or Omitted, except the mere assertion by the plaintiffs, unsupported by any testimony, that they and other parties were prejudiced, by the discrepancies occurring in the notice of the special election in the description of the boundaries of the district and by the further contention that they were confused and misled thereby and that the voters were prevented from a free and intelligent expression of their will. In the case of State ex rel. Laird v. Hall, 49 N.D. 11, 186 N.W. 284, 289, Judge Christianson in a con-i curring opinion said:

“There is no charge here that there was any fraud or irregularity in the conduct of the election itself, or that a fair and full expression of the public will was prevented by reason of anything that was done or omitted. Nor is there any charge that the winning candidates were in any manner responsible for the acts complained of with respect to the recall petitions. The contention is merely that thé petitions were not sufficient, and that the determination of the Secretary of State that they were sufficient, is erroneous, and that the election should not have been called. For the reasons stated, I am satisfied that that question may not be raised, and is not one for judicial investigation after an election has been held.”

The mere assertion by the plaintiffs of prejudice is insufficient. No proof thereof exists.

Our court has clearly indicated in the case of Anderson v. Peterson, 78 N.D. 949, 54 N.W.2d 542, 556 that the school district reorganization act should be liberally, construed. That case says:

“The defendants have shown a sufficiently strict compliance with the election statute so that the district court would not have been justified in enjoining the election before it was held on these grounds. Much less can the election be set aside on such grounds after it has been held. Only substantial compliance with the law is then required. See State v. Langlie, 5 N.D. 594, at page 599, 67 N.W. 958, 32 L.R.A. 723; Casselton Reporter v. The Fargo Forum, 65 N.D. 681, 261 N.W. 549; Groom v. Port of Bellingham, 189 Wash. 445, 65 P.2d 1060; Stroud v. McCallen, 386 Ill. 103, 53 N.E.2d 422; 29 C.J.S., Elections, § 81, p, 106; 18 Am.Jur., Elections, Sec. 110, p. 248.”
“A majority of electors in the territory involved has an absolute right to organize into a single district provided the territory sought to be consolidated is such as the statute contemplates. Court will go no further than to see that the methods pursued are in substantial accord with those prescribed by statute. State [ex rel. Ondler] v. Rowe, 187 Iowa 1116, 1123, 175 N.W. 32, 34. To adopt the language of the Rowe case, 1 * * * if such perfection of proceedings is to be demanded of them, few, if any, organizations of' school districts could successfully withstand attacks at the hands of discordant and contentious minorities. The courts very properly * * * go to the limit of liberality in giving effect to the voice of a majority wherever it can reasonably be done without violence to the manifest spirit and' intent of the Legislature.’ ” Zilske v. Albers, 238 Iowa 1050, 29 N.W.2d 189, 192.

Irregularities which do not deprive any voter of a fair chance to register his will, or which do not prevent will of the voters from being fairly and truly ascertained and declared,, do .not vitiate a school election to determine the question of consolidation. Viktora v. Cressman, 41 S.D. 159, 169 N.W. 551, 553. In that case the court said:

“There is absolutely nothing in the record tó show but that the election was'fairly and honestly conducted, and, even if there was anything that could be deemed an irregularity, there is nothing from which it could be inferred that it deprived any voter of a fair chance to register his will in relation to the issue before the voters, or from which it could be inferred that the will of the voters was not f ai rij-an d truly ascertained and declared. Certainly, under those circumstances, the trial court did not err in its judgment. 15 Cyc. 372.”

We will not, nor may we assume or infer that, in absence of evidence thereof, the irregularities complained of were such as to create prejudice to the plaintiffs or other electors dn the area of the proposed new school district.

Recent holdings of other courts where similar or analogous situations have been involved are in accord with this conclusion. Carnes v. Livingston County Board of Education, 341 Mich. 600, 67 N.W.2d 795, held that an election which is passed will not be declared void because particular detail of law relative to notice has not been strictly observed, in absence of any showing that any elector was thereby deprived of his right to vote or in any way misled, or that the result was affected by the complained of irregularities. State ex rel. Burnquist v. Independent Consolidated School District, Minn., 65 N.W.2d 117; Erickson v. Sammons, Minn., 65 N.W.2d 198. See also Edwards v. Union High School Dist. No. 8, 198 On 611, 258 P.2d 148.

The map showing the boundaries of the proposed Bowesmont School District indicates that the territory therein was to include all of Lincoln Township, including Bowesmont, except Sections 19, 20, 21, 28, 29, 30, 31, 32 and 33, Township 160, Range 51; all of South Joliette Township 161; Range 51, and Sections 1, 2, 11, 12, 13, and 14 of North Midland Township 160, Range 52, together with all railroad' and other’ property located within the boundaries, all in Pembina County, North Dakota. This was the area that was to be included in the proposed Bowesmont School District and-to be approved or rejected at the special election.

The appellants insist that the boundaries of the district were not properly set out. The statute does not set forth how the boundaries of a proposed new district. shall be determined. It merely states “and shall also contain a-description of the boundaries of the proposed new district.” A description of the area will result in the determination of the boundary of the same. Here the • area was- given rather than the boundaries. The map showing the area is correct. , Any elector confused by the notice had the means of ascertaining the exact boundaries and area involved. An examination of the records of-the Pembina County School Reorganization Committee would have disclosed the same.

“A notice of the proposed creation of a new district out of territory to be taken from existing .districts is sufficient where it describes the territory to be taken, although it does not further describe the boundaries of the district proposed to be created.” 78 C.J.S., Schools and. School-Districts, § 38, p. 711..

It is asserted that -the Pembina County- Committee was. never legally. appointed and that there was not -sufficient compliance with Section 15-5313, NDRC 1949 Supp. We have carefully considered all. of the evidence, submitted with reference to, the appointment of a county committee and conclude that there .was substantial compliance with the requisites, of the.law in the creation of the .county committee. Section 15-5306, NDRC 1949 Supp.

. The same may be said with reference to the requirements of . Section 15-5313, NDRC 1949 Supp. Public hearings on the proposal for -the reorganization of Bowes-mont School District were held. Notice of such hearing was published in the official paper more than ten-days prior to the date of the hearing. Testimony was taken and terms of the adjustment of property, debts and liabilities among the districts involved, were discussed and approved and the plan was submitted to the state committee and approved by it. Both the notice of the election and the ballot provided that all of the assets of the districts which were to comprise the new district should become the .assets and.property of the new. district and they further provided that the new district-, should assume all of the debts, a-ud liabilities and obligations of' each and all of the old districts that were to comprise the new district. If all of the assets of all the districts out of which the new district was to be formed were to become the assets of the new district, there was just as much an adjustment of the assets :as if the assets of each district had been separately appraised, listecl and set forth in some formal agreement and the same is true with refers ence to the liabilities and the obligations of the old districts out of which the new district was to be formed. If the new district assumed as its -debts and obligations all of the liabilities of the old districts, nothing more could have been accomplished if the debts and liabilities, if any, of each district, had been separately listed.

The contention that the voters were voting on two distinct propositions is without merit. That portion of the notice of the election which dealt with the areas from which the five directors of the proposed new school district were to be elected was mere surplusage.- ,It was not required by the statute, Section 15-5.318, NDRC 1949 Supp. . ■

“The mere' fact that the proclamation or notice contains recitals with respect'to matters which are not required to be stated therein will not render it invalid where its efficacy is not thereby impaired and the electorate is riot misled.” 18 Am.Jur. Elections, Sec. 110, p. 249; Allison v. Phoenix, 44 Ariz. 66, 33 P.2d 927, 93 A.L.R. 354; State ex rel. Utah Savings & Trust Co. v. Salt Lake City, 35 Utah 25, 99 P. 255, 18 Ann.Cas. 1130; Wisconsin Gas & E. Co. v. Ft. Atkinson, 193 Wis. 232, 213 N.W. 873, 52 A.L.R. 1033; Annotation, 93 A.L.R. 362.

It follows that the error in making such recitals will be. treated .as being immaterial where . they . did not mislead the' electors. In re Cleveland, 52 N.J.L. 188, 19 A. 17, 20 A. 37, 7 L.R.A. 431.

While the record does disclose a failure to comply with' the strict and literal provisions of the school, district reorganization act in connection with the reorganization of the new Bowesmont School District, the detailed procedure indicates an honest and a substantial compliance therewith, which, after the election, constitutes substantial compliance with the statutes, in absence of proof that the electorate was misled by the errors involved, or that the deviations from the requirements of the statutes prevented the electors from intelligently expressing their will. We reach the conclusion that there has been no such deviation from'the statutes, when all of the facts and circumstances are considered, as to render the creation of the new Bowesmqnt -School District illegal, invalid and. void.

The'judgment of the trial court is'affirmed and the action of the plaintiffs dismissed.

BURKE,' C. J., and SATURE, MORRIS- and GRIMSON, JJ., concur.