Burd v. Board of Ed. of Audubon County

• Decision Date: 06 June 1967
• Docket Number: No. 52423,52423
• Parties: Rex L. BURD et al., Appellants, v. The BOARD OF EDUCATION OF AUDUBON COUNTY, Iowa et al., Appellees.
• Court: Iowa Supreme Court

Page 457

151 N.W.2d 457

260 Iowa 846

Rex L. BURD et al., Appellants, v. The BOARD OF EDUCATION OF AUDUBON COUNTY, Iowa et al., Appellees.

No. 52423.

Supreme Court of Iowa.

June 6, 1967.

Larson & Larson, Harlan, and Alan Loth, Fort Dodge, for appellants.

Dale D. Levis, Audubon, and Fred Louis, Jr., Harlan, for appellees.

LARSON, Justice.

This is another school controversy involving an attempt by one group of voters in the Independent School District of Kimballton, Iowa, to secure a merger with the Audubon Community District of Audubon County, under section 275.40, and another group seeking a reorganization with the Elk Horn-Kimballton Community District of Shelby County under section 275.12 of the code. The small Independent School District of Kimballton has no high school, and in the fall of 1965 the voters were under mandate by the Sixty-first General Assembly to select an available high school district to join or, by default, permit a designation by the Audubon County Board. We shall refer to these groups as the mergers and the reorganizers.

When the mergers failed to take any steps to perfect their merger action commenced September 23, 1965, from September 27, 1965, to February 3, 1966, the reorganizers filed their reorganization petition with the County Superintendent of Shelby County. On February 10, 1966, the Audubon superintendent took the next and fourth step toward merger by publishing notice of time and place for filing objections, and the reorganizers, the plaintiffs herein, the brought certiorari to annul this notice and dismiss further merger proceedings with Audubon. Pursuant to a hearing by the trial court to determine 'whether or not to issue said writ' (Rule 311, R.C.P.), and the filing of intervenors' objections to such issuance, the trial court dismissed plaintiffs' petition on April 5, 1966. On April 10, 1966, plaintiffs filed an amendment to petition 'to clarify the facts alleged', and on July 8, 1966, the court again dismissed the petition. Thereafter plaintiffs filed no further pleadings and under Rule 86, R.C.P., this order became final. On July 19, 1966, plaintiffs appealed. We are unable to agree with the learned trial court that no cause was stated in plaintiffs' petition upon which relief could be granted, and must reverse for further proceedings therein.

In sustaining the defendants' first motion to dismiss, the trial court recognized that the hearing was confined to the sufficiency of the petition under Rule 311. It said:

'The allegations of the petition show that defendant, Board of Education of Audubon School District, first commenced proceedings to merge with Kimballton Independent District under I.C.A. § 275.40. Further that before these proceedings were completed proceedings were commenced to reorganize the territory of Elk Horn-Kimballton District to include the Kimballton Independent District. Plaintiff contends basically three things:

'1. That the Audubon Community School District and the Independent School District of Kimballton are not contiguous as provided by I.C.A., Sec. 275.40 and, therefore, Defendants lack jurisdiction to proceed under said Code section.

'2. That the question of whether these districts are 'contiguous' has already been submitted to and determined by the Court and that said decision is res judicata and binding on this Court.

'3. That, even though the areas are 'contiguous' the Defendants abandoned the merger proceedings and thereby lost jurisdiction.

'The Court is well aware that in considering the sufficiency of Plaintiff's petition the allegations contained therein must be considered as being true and no outside affidavits were received or parol evidence heard in connection therewith.

'However, legal conclusions, unsupported by allegation of fact, are not sufficient to entitle the Plaintiff to relief.

'This Court finds that the facts alleged in Plaintiffs' petition fail to support the legal conclusion which Plaintiffs seek to draw from them and that Plaintiffs' petition shows affirmatively from the allegations of fact contained therein:

'1. That the two districts sought to be merged are 'contiguous'.

'2. That there is no prior decision thereon which is res judicata and binding on this court.

'3. That Defendants first obtained and still retain jurisdiction herein.'

Appellants assign as error the dismissal of their original petition and the refusal to issue a writ of certiorari, and also the dismissal of their amended petition. They specifically contend the court erred by: '1. Sustaining defendants' final motion to dismiss; and holding that our amended petition raised no issue of fact as to whether their jurisdiction of the merger had terminated. 2. Sustaining defendants' first motion to dismiss; holding our original petition raised no issue that jurisdiction had terminated. 3. Sustaining defendants' motion to dismiss; and holding our petition insufficient to raise an issue of fact that Kimballton and Audubon districts were not contiguous. 4. Sustaining defendants' motion to dismiss; and holding our petition insufficient to show this fact of non-contiguity was res judicata.'

I. At the outset we are faced with the issue as to whether plaintiffs' petition, both before and after their amendment, failed to state a claim on which any relief could be granted. Rule 104, Rules of Civil Procedure, provides: 'Every defense in law or fact to any pleading must be asserted in the pleading responsive thereto, if one is required, or if none is required, then at the trial, except that (a) * * * (b) Failure to state a claim on which any relief can be granted, may be raised by motion to dismiss such claim, filed before answer. (c) * * * (d) Such motions must specify wherein the pleading they attack is claimed to be insufficient.'

As a basis of their claim of insufficiency, appellees maintained: '(a) The petition shows that defendants at all times had, and still retain, jurisdiction to proceed under Code § 275.40 with the merger complained of. (b) The petition affirmatively shows that the two districts which seek to merge are contiguous within the meaning of Code § 275.40, and that the proceeding is not illegal. (c) The petition shows that the legal rights of the parties hereto under the merger procedure provided by Code § 275.40 have never been adjudicated by this court.'

Appellants maintain their original petition, in effect, alleged that defendants' attempt to revive the merger proceedings in February 1966 was illegal because their jurisdiction had ceased. The key issue is whether under this pleading plaintiffs can show the mergers had lost their jurisdiction under section 275.40 of the code. The basis of the court's first dismissal ruling was that the petition consisted of legal conclusions not sustained by factual allegations and that statutory jurisdiction had been maintained because no statute fixed the time within which the merger must be completed.

Appellants' amendment then added facts which they claim would support a finding that defendants lost jurisdiction through a lack of reasonable diligence and the lapse of time. Appellees' second motion contended the petition on its face still showed they retained jurisdiction and pleaded only 'unsupported conclusions' and 'no new ultimate facts.' The final ruling held the petition, as amended, stated no facts from which it could be concluded, even if true, that jurisdiction had terminated.

II. Without question defendants acquired jurisdiction of this matter in September 1965, and unless it was lost, abandoned, or otherwise legally terminated, the attempt of plaintiffs to obtain jurisdiction of the same land for its reorganization must fail. State ex rel. Harberts v. Klemme Community School Dist., 247 Iowa 48, 72 N.W.2d 512. We said therein at page 51 of 247 Iowa, at page 514 of 72 N.W.2d: 'It is elementary that the same land cannot be within the jurisdiction of two pending reorganization proceedings at the same time.'

Plaintiffs' original petition alleges:

'7. On or before September 23, 1965, the Audubon Community District (which does have a 12-grade system and a high school) received what purported to be a petition under Code § 275.40, claiming to be signed by 63 of the 290 eligible voters in Kimballton Independent. On September 23, 1965, the board of Audubon Community, at a meeting, undertook to agree to accept the Kimballton area as provided by Code § 275.49--(2) (275.40(2)) September 27, 1965, the defendant Board of Education of Audubon County, at a meeting, undertook to approve these merger proceedings as provided by Code § 275.40--(3).

'8. Nothing was done thereafter relative to the above merger until after plaintiffs filed their petition for reorganization mentioned in Paragraph 5 above, on February 3, 1966. During this interval the County Superintendent of Audubon County did not perform any acts required by Code § 275.40--(3); fixed no time or place for objections, and published no notice. No election was called or held as provided by § 275.40--(4).

'9. The time to comply with § 275.40--(3) and (4) expired before filing the reorganization petition mentioned in Paragraph 5 above. Those (merger) proceedings terminated. The Audubon County Board had abandoned them. They had not taken effect, and were no longer pending when said petition for reorganization was filed in Shelby County.'

In their amended petition plaintiffs further alleged:

'8.1. Under Chapter 240, 61 G.A., Kimballton Independent would be attached to some other high school district by the Audubon County Board on April 1, 1966, or as soon thereafter as reorganization proceedings then pending should fail to accomplish its attachment to some high school district; and contemplated that this be effective July 1, 1966.

'8.2. In order to enable the people of Kimballton Independent to vote upon a reorganization which would designate the district to which it would be attached, it was necessary and desirable that such...