Board of Com'rs of Carter County v. Woodford Consol. School Dist. No. 36
| Decision Date | 28 February 1933 |
| Docket Number | 21183. |
| Parties | BOARD OF COM'RS OF CARTER COUNTY et al. v. WOODFORD CONSOL. SCHOOL DIST. NO. 36. |
| Court | Oklahoma Supreme Court |
As Corrected June 3, 1933.
Rehearing Denied Oct. 17, 1933.
Syllabus by the Court.
1. A writ of certiorari brings up for review the sole question of whether the inferior tribunal kept within or exceeded the jurisdiction conferred upon it by law, and it cannot be used to correct errors committed by the inferior tribunal within the limits of its jurisdiction.
2. The laws relating to school districts apply to consolidated school districts where those laws are applicable and where no specific provision has been made for consolidated school districts.
3. Section 6771, O. S. 1931 (section 10321, C. O. S. 1921) authorizes an appeal to the board of county commissioners from the action of the county superintendent in approving a petition for the consolidation of two or more adjacent school districts.
4. A board of county commissioners, as the representative of the public, to whom is intrusted the matter of forming consolidated school districts, when an appeal is taken from the action of the county superintendent, may appeal from an order of the district court in a certiorari proceedings to review the action of the board of county commissioners, which reverses the action of that board.
5. In the absence of a proper petition therefor signed by the required number of qualified electors, a county superintendent is without authority of law to call an election for the purpose of voting on whether or not a consolidated school district should be formed.
Appeal from District Court, Carter County; Asa E. Walden, Judge.
Proceedings on petitions for the consolidation of School Districts Nos 34 and 36, in Carter County, to be known as the Woodford Consolidated School District No. 36 of Carter County. From a judgment of the district court on certiorari reversing an order of the Board of County Commissioners, holding the election for the consolidation of the school districts invalid, the Board of Commissioners of Carter County and another appeal.
Judgment reversed, and the cause remanded, with directions.
Marvin Shilling, Co. Atty., and Moore & George, all of Ardmore, for plaintiffs in error.
Champion Champion & Fischl, of Ardmore, for defendant in error.
In the month of October, 1929, certain petitions purporting to be signed by a majority of the qualified voters of school districts Nos. 34 and 36 were presented to the county superintendent of Carter county requesting the calling of an election for the purpose of organizing the territory comprising those school districts into a consolidated school district. The county superintendent declared the petitions to be sufficient, and called an election as prayed for. From that order an appeal was attempted to the board of county commissioners. The county superintendent disregarded the appeal and proceeded to hold the election. He declared a consolidated district organized under the name of Woodford consolidated school district No. 36. The cause came on for trial before the board of county commissioners, and, after a trial de novo, that board held that the election was improperly called, for the reason that the petition presented to the county superintendent from school district No. 34 was not signed by a majority of the legal voters of that district. The board of county commissioners made an order to that effect. Thereafter Woodford consolidated school district No. 36 and certain individuals filed a petition for a writ of certiorari in the district court of Carter county. Neither school district No. 34 nor school district No. 36 were made parties to that action, possibly for the reason that the plaintiffs therein contended that those districts had ceased to exist by reason of the organization of the consolidated school district, which was one of the plaintiffs in that action. The district judge made an order requiring the board of county commissioners and the county clerk to certify the record to that court. That record was filed in that court, and that court, after a hearing, over the objection of the defendants in that action, reversed the order of the board of county commissioners. An appeal was taken to this court by the defendants in that action. The appeal was by transcript from an order overruling the demurrer to the petition, from an order overruling the motion to dismiss the action, and from the judgment of the trial court on the merits.
The defendant in error contends that there was no right of appeal to the board of county commissioners from the order of the county superintendent holding the petition for consolidation to be sufficient, that, if there was such a right of appeal, it was by reason of section 7781, R. L. 1910, and that no notice of appeal, as therein provided, was given.
A determination of the issues in this case will require a review of the history of the school legislation of this state.
By the provisions of article 1, chapter 79, Statutes of Oklahoma 1890, township, city, and town schools were provided for, and it was provided that, where the school population was sufficient, four schools should be established in each township, the township schools to be under the control of the township board, and one person elected at large. The township and the towns were the units for school purposes.
In 1893 the school system was changed from township organization to district organization. School District Nos. 5 & 8 v. School District Nos. 6 & 7, 11 Okl. 72, 65 P. 939. By the provisions of section 5760, Statutes of Oklahoma 1893, it was made the duty of the county superintendent to divide the county into a convenient number of school districts and to change such districts when the interest of the inhabitants thereof required it. That section authorized any person interested to appeal to the board of county commissioners from the action of the county superintendent. By the provisions of section 5767, Statutes of Oklahoma 1893, it was provided that if, in the formation or alteration of, or refusal to form or alter, school districts, any person or persons should feel aggrieved, the person or persons might appeal to the board of county commissioners. Section 5760, supra, was a part of the article relating to the duties of the county superintendent, and section 5767, supra, was a part of the article relating to school districts. Those sections were similar, and the question arises, Why were they both adopted?
When the Code was revised by the adoption of the Revised Laws of 1910, section 5760, supra, as it had been amended and as it was changed by the codifiers, was carried forward as section 7701 thereof, and section 5767, supra, as it had been amended and as it was changed by the codifiers, was carried forward as section 7781 thereof.
We find an answer to the question in the decision of this court in Woolsey et al. v. Nelson et al., 43 Okl. 97, 141 P. 436. This court therein had under consideration sections 7701 and 7781, supra. It held that the duties of the county superintendent under the provisions of section 7701, supra, were limited to acts in the formation of districts in the first instance, or in simply changing the boundary lines of districts thereafter, that that officer was not authorized, under that section, to wholly dissolve any district, or to form a new district by consolidating two or more districts into one, and that under the provisions of section 7781, supra, authority was conferred upon the county superintendent, not only to change the boundary lines, but to alter any district.
In School District No. 17 v. Zediker, County Supt., 4 Okl. 599, 47 P. 482, the litigation arose out of the action of the county superintendent in attempting to change the boundaries of a number of school districts, and section 5760, supra, was under consideration. Therein it was contended that, when a school district had once been formed, it became an incorporated body over which the people of the district had control, and that there could be no change in the boundaries except when, by reason of the topographical or physical conditions, it was in the interest of the people to change the boundaries. This court thought that construction to be too narrow. It held that a school district is but a subordinate agency, a creature of the Legislature, which the Legislature might create or abolish, or the boundary of which it might change without consulting the inhabitants. It held that the statutes authorized the county superintendent to make changes without regard to the topographical and physical conditions, if the interest of the inhabitants of the county required such changes to be made, and that the clause of the statute relating to topographical and physical conditions was intended to be merely directory. It therein held that the powers conferred upon the county superintendent by the section were judicial in their nature and required the exercise of judicial discretion.
In School District No. 44 v. Turner, 13 Okl. 71, 73 P. 952, it was held that the county superintendent had no power or jurisdiction to change the boundaries of an organized school district by detaching a portion thereof and by forming and creating thereby a new district, until a petition had been duly presented to him, as required by the statute, and that where a county superintendent acted arbitrarily and without such a petition and notice, an injunction was the proper remedy. It was therein said that the statutory requirements were clear, positive, and mandatory, and left no discretion to the county superintendent, and that the action of the...
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