Clay v. Board of Com'rs of Madison County

• Decision Date: 26 October 1917
• Citation: 168 P. 667,30 Idaho 794
• Parties: Z. T. CLAY and HERMAN ERICKSON, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF MADISON COUNTY, Respondents
• Court: Idaho Supreme Court

168 P. 667

30 Idaho 794

Z. T. CLAY and HERMAN ERICKSON, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF MADISON COUNTY, Respondents

Supreme Court of Idaho

October 26, 1917

SCHOOL DISTRICTS-CONSOLIDATED SCHOOL DISTRICTS-EVIDENCE-BOARD OF COUNTY COMMISSIONERS-POWERS OF-COUNTY SUPERINTENDENT OF PUBLIC INSTRUCTION-ESTOPPEL.

1. On an appeal to the district court from an order made by the board of county commissioners, extrinsic evidence is admissible to determine upon which petition the county commissioners acted.

2. Where a board of county commissioners has consolidated two adjacent school districts, a succeeding board may, upon proper proceedings, divide the same.

3. A district formed by the union of two or more existing districts does not occupy any different position after consolidation and is not invested with any different or additional powers than a district created from unorganized territory.

4. Where a school district has been organized by an order of the board of county commissioners, a future board has express statutory power to change the boundaries or divide the district upon a proper petition therefor being presented.

5. The recommendation of the superintendent of public instruction in writing is not necessary to give the board of county commissioners jurisdiction to divide a school district.

6. An appeal to the district court from an order made by the board of county commissioners must be predicated upon the existence of such an order, and, upon the trial in the district court the appellant cannot be heard to say that the order appealed from did not represent any action of the board.

[As to meaning of "adjacent" in statute relating to annexation to school district, see note in Ann.Cas. 1913B 171]

APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. James G. Gwinn, Judge.

Appeal from an order of the board of county commissioners creating a new school district. Judgment for defendants. Affirmed.

Judgment affirmed. Costs awarded to respondents.

C. W Poole, for Appellants.

If it be held that the provisions of the statute embrace within their terms this class of districts, they being formed only upon the petition of the majority of heads of families, jurisdiction to dismember, segregate or disorganize them could be conferred only by petition of two-thirds of the heads of families, as provided in the law. (Wood v. Independent School Dist., 21 Idaho 734, 124 P. 780.)

If the order had been made by the board while sitting in session, it would be effective without the chairman's signature, but not having been made by the board, and being only an act of the clerk, though all of the members gave their separate or individual sanction to it, it would still be invalid, as not being the act of the board. (Rankin v. Jauman, 4 Idaho 394, 39 P. 1111; Miller v. Smith, 7 Idaho 204, 61 P. 824; Conger v. Latah County Commrs., 4 Idaho 740, 48 P. 1064; 11 Cyc. 391, 392; Mahr v. Pottawomie County Commrs., 26 Okla. 628, 110 P. 751.)

Extrinsic evidence is not admissible to vary or explain this record. (Gorman v. Boise County Commrs., 1 Idaho 553; Ex parte Young, 154 Cal. 317, 97 P. 822, 22 L. R. A., N. S., 330; 17 Cyc. 582.)

Soule & Soule, for Respondents.

"The legislature intended to provide how two different kinds of school districts might be organized by the board of county commissioners, one upon petition and the other by a petition and vote." (Wood v. Independent School Dist., 21 Idaho 734, 124 P. 780.)

In this instance it was not sought to vary the public record, but simply to explain and identify it, and this is permissible under all the authorities. (17 Cyc. 587.)

If the members present agree to and approve the passing of the petition, it is passed as effectively as if done upon formal motion. The statute does not require the minutes of the board to be approved by the board at any meeting or while in session. The only requirement is that the chairman and clerk sign the minutes. (People v. Eureka Lake & Y. C. Co., 48 Cal. 143.)

It is the consent, sanction and approval by signing that gives legal life and vitality to the order and not the formality with which it was passed. (11 Cyc. 394; Rock v. Rinehart, 88 Iowa 37, 55 N.W. 21.)

RICE, J. Budge, C. J., and Morgan, J., concur.

OPINION

RICE, J.

This is an appeal from a judgment of the district court affirming the action of the board of county commissioners of Madison county in organizing school district No. 39 out of a portion of the territory embraced in school district No. 12 of said county. It appears that a petition for the formation of a new school district was filed with the superintendent of public instruction of Madison county on June 15, 1914. The petition was accompanied by a map. Proper notice was given of the hearing of the petition before the board of county commissioners at its next regular session in July. This petition and map were presented to the board on July 14, 1914. The county superintendent appeared personally before the board, and verbally approved the petition and recommended some modification of the proposed boundaries.

Appellants specify as error the admission of this petition in evidence upon the hearing in the district court. The error is predicated upon the proposition that from the record of the proceedings of the commissioners the identification of the petition upon which the commissioners took action does not clearly appear. On the trial in the district court evidence was received to identify the petition as the one which was the subject of action by the commissioners. The admission of this evidence was proper. On the general subject of the admission of extrinsic evidence to identify papers or records, see 10 R. C. L. 1083. The findings of the trial court set out the petition at length, and found that the petition referred to is the one on which the board of commissioners acted. Exhibit "A" was properly received in evidence.

The appellants further urge that the board of commissioners had no jurisdiction or power to grant the petition. In support of this contention it is shown that district No. 12, out of which it was proposed to create the new district, had been formed on April 13, 1911, at a time when the territory was still within the county of Fremont, by the consolidation of two school districts of that county. The consolidation of these districts was effected by an order of the board of commissioners of Fremont county, acting under authority of sec. 615, Rev. Codes. It is urged that this section required the petition of a majority of the heads of families residing in each of the two districts in order that they might be united into one district, and that this district so formed is a "consolidated school district." Attention is called to the fact that the substance of sec. 615, Rev. Codes, was re-enacted into the school code of 1911 (sec. 47 of chap. 159, 1911 Sess. Laws, p. 500); that this section was amended by the 1913 Sess. Laws, p. 437, by which amendment such consolidated school districts were given an unquestioned legal standing. Counsel for respondents contend that the section last referred to requires the indorsement of the state board of education before any district can be recognized as a "consolidated district," and that no such indorsement was shown to have been made.

The said sec. 47, School Code 1911, was again amended by chap 119, 1913 Sess. Laws, p. 462. In Carlson v. Mullen, 29 Idaho 795, 162 P. 332, this court held that this latter amendment contains sec. 47 as now in force. Said sec. 47 as now amended makes no reference to consolidated...