Altman v. Independent School Dist. of Gilmore City

• Decision Date: 04 May 1948
• Docket Number: 47245.
• Citation: 32 N.W.2d 392,239 Iowa 635
• Parties: ALTMAN et al. v. INDEPENDENT SCHOOL DIST. OF GILMORE CITY et al.
• Court: Iowa Supreme Court

32 N.W.2d 392

239 Iowa 635

ALTMAN et al. v. INDEPENDENT SCHOOL DIST. OF GILMORE CITY et al.

No. 47245.

Supreme Court of Iowa

May 4, 1948

McManus & Toomey, of Manson, for plaintiffs-appellants.

Garfield Baker & Miller, of Humboldt, for defendants-appellees.

HALE Justice.

It is agreed by plaintiffs-appellants that the defendants-appellees' statement of the case is correct, and so far as pertinent to the questions herein we adopt the same. This is an appeal from the ruling of the trial court sustaining the motion to dismiss, filed by the defendants to the plaintiffs' petition. The plaintiffs in their petition set out that in March, 1947, two petitions were presented to the Board of Directors of the then existing Independent School District of Gilmore City, Iowa, each of said petitions asking that the territorial limits of the district be enlarged, and that a new district be formed, including such additional territory one petition being filed by the resident electors of the then existing school district, and one filed by the resident electors of the territory proposed to be added to said school district. The petition admits that the latter of these petitions was signed by a majority of the resident electors residing in the contiguous area proposed to be added to and made a part of the then existing school district, but further alleges that the petitions did not bear the signatures of a majority of the resident electors in each of several specified sections of land included with the territory proposed to be added to the school district. Pursuant to the filing of the petitions, the Board of the then existing district determined them to be adequate and sufficient, called an election, gave notice thereof, and the voters of both the former district and the proposed additions thereto, voting separately, approved the same. The defendants filed a motion to dismiss plaintiffs' petition, alleging that the same did not set out a cause of action, which motion was sustained by the court, and it is from that ruling that this appeal was taken.

The points in issue in this case were stipulated. The first two paragraphs of the stipulation relate to the appeal. Paragraph three of the stipulation is as follows:

'In enlarging their existing Independent School District of Gilmore City, Iowa, written petitions were obtained and filed, said petitions having been signed by a majority of the resident electors of the contiguous territory proposed to be added to the existing district. These signatures, however were obtained at large in the sense that a majority of signatures to said petition were not obtained, as shown by the petition of plaintiffs, in certain sections of Weaver Township, Humboldt County, Iowa, Garfield Township Pocahontas County, Iowa, Lake Township, Pocahontas County, Iowa, and in Avery Township, Humboldt County, Iowa. The contention of appellants is that under Section 274.23 governing the formation of independent districts and their enlargement, the requirement is that written petitions must be obtained, signed by a majority of the resident electors in subdivisions not smaller than the smallest tract as made by the Government survey in the same or any adjoining school corporations, and that only under the procedure outlined in Chapter 274 governing the formation of consolidated school districts can a petition if not signed by a majority of resident electors in each section involved be ruled sufficient. It is agreed that the smallest subdivision referred to in said Section, means a section of 640 acres.

'The appellants do not question the form or substance of the petition, but question only whether or not signatures thereon are sufficient under the terms and provisions of Section 274.23, and do not question the genuineness of any of the signatures on said petitions.'

The presentation of the appeal in this case is irregular as to time of filing--defendants-appellees' argument having been first filed, but no objection is made to the manner of presentation. Since the defendants' argument was first filed and embodies the only matter for determination herein, we will first consider the propositions raised by the defendants. The first is as follows:

'When the Board of Directors of an Independent School District has determined that petitions calling for an election to determine whether or not certain contiguous territory shall be added to said district and a new district formed are sufficient, and have called an election pursuant thereto, and no appeal from such determination by the Board has been made to the County Superintendent of Schools, may the sufficiency of said petitions and the validity of subsequent election and new organization be attacked by an action in the District Court?'

I. Defendants' contention is that the remedy of plaintiffs is by appeal from the decision of the Board to the County Superintendent. In Riecks v. Independent School District, 219 Iowa 101, 105, 257 N.W. 546, 548, it is stated:

'It is only in cases in which the county superintendent is called upon to review a decision of the board involving a matter of discretion, and not a duty imposed by law, that appeal from such decision of the board to the county superintendent is necessary.' See cases cited.

The question, therefore, is: Was the duty of the school board to form an independent district a mandatory one? The statutes relating to the formation and enlargement of school districts are sections 274.23, 274.24, 274.26, and 274.27 of the Code of 1946, and are as follows:

'274.23 Formation of independent district. Upon the written petition of any ten voters of a city, town, or village of over one hundred residents, to the board of the school corporation in which the portion of the city or town having the largest number of voters is situated, such board shall establish the boundaries of a proposed independent district, including therein all of the city, town, or village, and also such contiguous territory as is authorized by a written petition of a majority of the resident electors of the contiguous territory proposed to be included in said district, in subdivisions not smaller than the smallest tract as made by the government survey in the same or any adjoining school corporations, as may best subserve the convenience of the people for school purposes, and shall give the same notices of an election as required in other cases.

'274.24 Vote by ballot--separate ballot boxes. At the election all voters upon the territory included within the contemplated independent district shall be allowed to vote by ballot for or against such independent organization. When it is proposed to include territory outside the city, town, or village, the voters residing upon such outside territory shall vote separately upon the proposition for the formation of such new district. If a majority of the votes so case is against including such outside territory, then the proposed independent district shall not be formed. When such territory is included in an independent district, adequate school facilities shall be provided for the increased attendance.'

'274.26 When district deemed formed. If a majority of the votes cast at such election is in favor of the proposition, the formation of said independent district shall be deemed effected.

'274.27 Additions and extensions--separate vote. Whenever it is proposed to extend the limits of, or add territory to, an existing independent city, town, or consolidated district, the voters residing within the proposed extension or addition and outside the existing independent district, shall vote separately upon the proposition. The proposition must be approved by a majority of the voters voting thereon in each of such territories.'

The provisions of section 274.27, Code of 1946, do not repeal the former provisions, but are additions thereto. See State of Iowa ex rel. Doherty v. Van Peursem, 202 Iowa 545, 548, 210 N.W. 576, in which case it was contended that the provisions of section 274.27, then known as section 4191, Code of 1924, had no application to the establishment of a new independent district, but applied only where it was to extend the limits or add territory to an existing district. The court held against such contention, and recited the legislative history of section 274.27, so that these provisions are to be construed together.

In the notes, Annotations, found in 65 A.L.R. 1526, Re Chelan Electric Co., 152 Wash. 412, 278 P. 171, the test states:

'Sometimes because of the peculiar wording of the statute, it has been held that, where the law has been complied with in all respects by those desiring a change in a school district, and the authority for such a change exists, the statute empowering the trustees to make the change, or to do an act necessary to bring it about, is mandatory, and not susceptible of the construction that it gives them a discretion to act or not as they think proper.' Citing Albin v. Independent District, 58 Iowa 77, 12 N.W. 134; Barnett v. Independent District, 73 Iowa 134, 34 N.W. 780; Odendahl v. Russell, 86 Iowa 669, 53 N.W. 336; Munn v. School Township, 110 Iowa 652, 82 N.W. 323; School Township v. Ind. School District, 134 Iowa 349, 353, 112 N.W. 5; State ex rel. Moulton v. Consolidated Ind. District, 195 Iowa 637, 192 N.W. 5; Consolidated Ind. School Corp. v. Shutt, 199 Iowa 111, 201 N.W. 335. See, also, Cutler v. Independent District, 172 Iowa 361, 154 N.W. 671, which was an action in mandamus to compel the defendant, Board of Directors, to call an election for the organization of a new district. The lower court dismissed the plaintiffs' petition and this court reversed. The defendant board had refused to grant a petition to call an election. This court said, 172 Iowa at page 362, ...