Cleveland v. Sch. Dist. No. 79, Grady Cnty.

• Decision Date: 10 August 1915
• Docket Number: Case Number: 5071
• Citation: 51 Okla. 69,1915 OK 602,151 P. 577
• Parties: CLEVELAND v. SCHOOL DIST. NO. 79, GRADY COUNTY.
• Court: Oklahoma Supreme Court

1915 OK 602

151 P. 577

51 Okla. 69

CLEVELAND v. SCHOOL DIST. NO. 79, GRADY COUNTY.

Case Number: 5071

Supreme Court of Oklahoma

Decided: August 10, 1915

Syllabus

¶0 1. SCHOOLS AND SCHOOL DISTRICTS--Change of Boundaries--Authority of County Superintendent. A county superintendent, by act of March 11, 1897 (Laws 1897, c. 34, art. 5), has no power or jurisdiction to change the boundaries of a regularly organized school district, by detaching a portion thereof and forming and creating thereby a new district, until a petition has been duly presented to him, signed by at least one-third of the qualified electors of such district, and until the required notice has been given.

2. SAME--Organization--De Facto Corporations. Such a school district, organized without the petition and notice required by law, cannot have a de facto existence, and has no power to contract or bind itself or others, and its de facto or de jure successors cannot be held liable upon its contracts.

Error from District Court, Grady County; Frank M. Bailey, Judge.

Action by C. A. Cleveland against School District No. 79, Grady County, on a school district warrant. Judgment for defendant, and plaintiff brings error. Affirmed.

Dyke Ballinger, for plaintiff in error.

William Stacey, for defendant in error.

BOWLES, C.

¶1 This case was tried in the court below upon an agreed statement of facts, from which we deduce the following:

¶2 School District No. 79 was attempted to be organized in October, 1902, out of territory detached from district No. 44. District No. 44, being dissatisfied with the action of the superintendent of public instruction in attempting to organize district No. 79, instituted proceedings by injunction in the district court of Caddo county, praying that the superintendent be enjoined from organizing district No. 79. School District No. 44, being defeated in the court below, appealed to the territorial Supreme Court, where the judgment of the district court was reversed, and the cause remanded. This case, School District No. 44, Caddo Co., O. T., v. C. W. Turner, is reported in 13 Okla. 71, 73 P. 952.

¶3 Of just what judgment was rendered by the district court, finally, we are not advised. In December, 1903, the superintendent of public instruction reorganized district No. 79, embracing all the territory originally included within its former boundaries, save the S. E. 1/4 of the S. W. 1/4 of section 18, which was retained by district No. 44. Original district No. 79 was organized without a petition being first filed with the superintendent of public instruction of one-third of the qualified electors of district No. 44, and without giving notice as required by the statute in force at the time.

¶4 After the purported organization of district No. 79, school officers were appointed by the superintendent, and they qualified and entered upon the duties of their respective offices, purchased a seal, levied taxes, employed a teacher, and caused a school to be conducted and carried on in said district and issued warrants in payment for the services of the teacher so employed, of which the warrant in this suit is one. This warrant was afterward sold to the plaintiff, and presented for payment to district No. 79 as, reorganized. Payment being refused, suit was instituted, and judgment rendered against the plaintiff; hence this appeal.

¶5 Plaintiff in error contends that school district No. 79, as organized in the first instance, was a de facto organization, and as such issued the warrant in question, and district No. 79, as afterward organized, including within its boundaries practically all the territory formerly included in district 79, is liable upon the warrant in question, and the court below was in error in rendering judgment for defendant. If district No. 79, as originally organized, had been a quasi municipal corporation de facto, the contention of plaintiff in error would be correct, and we should have no hesitancy in reversing the case and ordering judgment for plaintiff; but was school district No. 79, as organized in the first instance, a de facto corporation? The answer to this question determines the issue raised.

¶6 Original school district No. 79 was attempted to be organized by the superintendent of schools by detaching territory belonging to and a part of school district No. 44, without first having a petition presented to him of one-third of the qualified voters of said school district No. 44, and without giving 20 days' notice. Under the statute in force at the time, namely, Session Laws of 1897, pp. 271-272, two things were necessary to give the superintendent jurisdiction to act: First, a petition of at least one-third of the qualified electors of the district; second, 20 days' notice, by written notices placed in five public places in the district so affected. We believe this statute is mandatory, and both the petition and notice were prerequisites and jurisdictional, and where both or either are wanting a school district could not be organized; therefore the action of the superintendent in attempting to form the district was wholly without authority and void.

¶7 School District No. 44 v. Turner, 13 Okla. 71, 73 P. 952, is conclusive upon this phase of the case. Associate Just ce Hainer, who rendered the opinion, after quoting the statute above, said:

"Manifestly the county superintendent has no power or jurisdiction to change or alter the boundaries of a school district until the statutory provisions have been strictly complied with. The filing of a petition signed by at least one-third of the qualified electors of such district, and the giving of 20 days' notice are clearly jurisdictional facts. The language of the statute is clear, positive, and mandatory. It leaves no discretion with the county superintendent. It follows that the attempted change of the boundaries of the district by the county superintendent, before a proper petition was filed and the statutory notice was given, was an arbitrary exercise of power, wholly unauthorized, and therefore absolutely null and void."

¶8 In principle, we believe this decision to be the law. A school district is a creature of statute, and the Legislature may make and unmake it at will, so long as vested rights are not disturbed, nor valid and binding contracts impaired. Subject to such restrictions, instead of creating them directly, the Legislature, by means of general incorporation acts, may provide in what manner and under what conditions districts or peoples may obtain corporate rights and assume corporate liabilities. The Legislature, in doing so, however, is not considered as delegating any of its legislative powers either to the people or to the persons or officers who assist in the incorporation. The law creates the corporation, and the performance of the required conditions qualifies the corporation to act. It is by the performance of the requirements that they are permitted to exercise the powers of municipal government. These are conditions precedent, and must be performed. In other words, jurisdictional requirements must be present at the attempted incorporation, or all subsequent acts are illegal and void. This being true, the school district in...