Anderson v. Hadley, 48437

• Decision Date: 09 March 1954
• Docket Number: No. 48437,48437
• Citation: 63 N.W.2d 234,245 Iowa 550
• Parties: ANDERSON et al. v. HADLEY et al.
• Court: Iowa Supreme Court

Page 234

63 N.W.2d 234

245 Iowa 550

ANDERSON et al. v. HADLEY et al.

No. 48437.

Supreme Court of Iowa.

March 9, 1954.

John D. Beardsley, Onawa, for appellants.

A. H. Bolton, Sioux City, and Charles N. Woolery, Sergeant Bluffs, for appellees.

GARFIELD, Justice.

On February 16, 1953, a petition was filed with defendant, County Superintendent of Schools of Woodbury County, asking the establishment of boundaries for a proposed consolidated independent school district to be called 'Consolidated Independent School District of Sloan' in Woodbury and Monona counties. The petition was filed pursuant to chapter 276, Code 1950, I.C.A., and was signed by more than 'one-third of the voters residing within the limits of the territory described' as required by Code section 276.2.

Defendant superintendent fixed a final date for filing objections to the petition and gave notice thereof as directed by section 276.4. Such objections were filed by persons entitled to object. Defendant superintendent overruled the objections and entered an order fixing the boundaries for the proposed school corporation pursuant to section 276.5. The objectors appealed to defendant, Joint Boards of Education of Woodbury and Monona Counties, by serving written notice on defendant superintendent. Section 276.6. The superintendent then called a meeting of the joint boards to hear the objections. Section 276.9.

The only action taken by the joint boards was a tie vote upon a motion to dismiss the petition filed with the superintendent. Immediately after this tie vote a motion to adjourn was made and carried. Defendant superintendent then called a special election, pursuant to section 276.11, to vote upon the creation of the new corporation. A majority of votes favored the proposition. The superintendent later called an election to choose directors for the corporation. Section 276.18.

The day before the first of these elections the objectors commenced in the district court this action in certiorari challenging the legality of the joint boards' act in failing to fix the boundaries for the proposed district as required by sections 276.8, 276.9, and the legality of the superintendent's act in calling the first election before such boundaries had been fixed by the joint boards. The petition in certiorari asked that further proceedings, including the first election, be stayed pending the court's decision. By amendment to said petition legality of the calling of the second election (of directors) was challenged and a stay thereof sought.

Following trial of the certiorari action the district court sustained the challenged acts of defendants and denied the writ. Upon this appeal from the judgment plaintiffs renew two contentions urged upon the trial. Other propositions then advanced are not argued and are therefore deemed waived. Rule 344(a)(4) (Third), Rules of Civil Procedure, 58 I.C.A.; Livingston v. Davis, 243 Iowa 21, 24, 25, 50 N.W.2d 592, 595, 27 A.L.R.2d 1237, and citations.

I. Plaintiffs contend defendants' acts were illegal because the petition filed with the superintendent was not first submitted to the joint boards of education of the two counties, or at least to the Monona county board, for approval. It is said such submission is required by this provision of section 3, chapter 94, Acts 54th G.A., 1951: 'Any proposal for merger, consolidation or boundary change shall first be submitted to the county board of education for approval before being submitted to the affected districts at an election.'

The contention is without merit and is ruled by our decisions in Smaha v. Simmons, Iowa, 60 N.W.2d 100, and Spencer v. Morris, Iowa, 60 N.W.2d 528.

Chapter 94, Acts 54th G.A., expressly amended parts of chapter 275, Code 1950, I.C.A., Code sections 274.16 and 273.13, and repealed section 4, chapter 150, Acts 52d G.A. Chapter 94, 54th G.A., applies only to what we have called the official plan method of reorganization and consolidation of school districts originally provided for by Code chapter 275. Chapter 94 has no application to the people's petition method of establishing a new district specified in Code chapter 276. Smaha and Spencer cases, supra.

The procedure set out in chapter 276 is complete in itself. The petitioners for the new district properly proceeded under chapter 276. See in addition to the Smaha and Spencer cases, Cook v. Consol. School District of Truro, 240 Iowa 744, 38 N.W.2d 265; Swan Lake Consol. School District v. Consolidated School District, Iowa, 58 N.W.2d 349; State ex rel Nation v. Independent Consol. School District, Iowa, 62 N.W.2d 194.

That section 3, chapter 94, 54th G.A., upon which plaintiffs rely, applies only to the so-called official plan method of reorganization and consolidation and has no application to the method of establishing a new district under Code chapter 276 seems apparent from the language of section 3. Preceding the sentence quoted above on which plaintiffs rely the section provides: 'The county board of education shall prepare and approve tentative plans for reorganization of school districts within the county after consultation with the boards of the various districts in the county and the state department of public instruction. Within ten (10) days after the county board has approved their tentative plan they shall file such plan with the state department of public instruction.'

II. Plaintiffs also contend Code sections 276.8, 276.9 imposed upon defendant joint boards the mandatory duty of fixing the boundaries for the proposed corporation or of dismissing the petition and their failure to perform such duty is an illegality which renders the superintendent's calling of the elections also illegal. The trial court rejected this contention on the ground that failure of the joint boards to fix the boundaries or dismiss the petition left the boundaries fixed by the superintendent legally effective and made his order final. We are unable to agree with this view. We think plaintiffs' second contention is sound.

These Code sections are vital to a determination of this matter:

'276.8 Appeal when territory in one county. If the territory described in the petition for the proposed corporation lies wholly in one county, the county board of education * * * shall hear the said objections * * * and * * * shall determine and fix such boundaries for the proposed school corporation as in its judgment will be for the best interests of all concerned, without regard to existing district lines. If such boundaries are neither those petitioned for nor those fixed by the county superintendent, the hearing shall be adjourned, and notice of such adjourned hearing shall be given as for the hearing before the county superintendent, and upon the final hearing the board of education shall fix the boundaries, or dismiss the petition, which shall be final.

'276.9 Appeal when territory in different counties. If the territory described in the petition for the proposed corporation lies in more than one county, * * * the county boards of education of the different counties * * * shall determine and fix boundaries for the proposed corporation, as provided in section 276.8, or dismiss the petition, which shall be final.

'276.10 Interested parties as judges. No member of a county board of education who lives or owns land within the proposed district or within any existing district affected by the proposed change in boundaries, or who has filed objection to the establishment of the new school corporation, shall take any part in determining any matter concerning the establishment * * * of such school corporation * * *.

'276.11 Special election called--time. When the boundaries of the territory to be included in a proposed school corporation have been determined as herein provided, the county superintendent * * * shall call a special election in such proposed school corporation within thirty days from the date of the final determination of such boundaries, * * *.'

It seems clear that after the appeal was taken to the joint boards sections 276.8, 276.9 placed upon them the mandatory duty of fixing the boundaries of the proposed corporation or of dismissing the petition. The legislature evidently desired the judgment of the boards in fixing such boundaries as they felt 'will be for the best interests of all concerned, without regard to existing district lines.' The boundaries to be so fixed need not be those petitioned for nor those fixed by the superintendent.

Defendant boards failed to perform the mandatory duty so placed upon them. Apparently they made no attempt to fix such boundaries for the proposed district as were in their judgment for the best interests of all concerned. They seem to have given no consideration to that question. They considered only dismissal of the petition. When the tie vote was cast upon that proposition they promptly adjourned.

Because the boundaries were never fixed as provided by sections 276.8 and 276.9 there was no statutory authority for the superintendent to call the first election. His act in so doing must be deemed illegal. Section 276.11, quoted above, provides: 'When the boundaries * * * have been determined as herein provided, the county superintendent * * * shall call a special election * * *.' (Emphasis added.)

Our conclusion finds support in State ex rel. Consol. Independent School Dist. of Competine Tp. v. Consolidated Ind. School District, 190 Iowa 1154, 181 N.W. 495, where the county superintendent called an election to vote upon the establishment of a proposed consolidated independent school district during the time allowed for appeal to the board of education from his decision overruling objections to the petition. This left only two days, instead of the five days required by statute, between the time of the final decision of the board of education and the date of the election. We held the election was illegal. The opinion states: 'And, clearly, no election could...