Dappen v. Weber
| Citation | 184 N.W. 952,106 Neb. 812 |
| Decision Date | 14 October 1921 |
| Docket Number | 21785 |
| Parties | HENRY DAPPEN ET AL., APPELLANTS, v. DAN H. WEBER ET AL., APPELLEES |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Richardson county: JOHN B. RAPER JUDGE. Affirmed.
AFFIRMED.
Dort & Cain, for appellants.
John Wiltse, contra.
Heard before MORRISSEY, C.J., LETTON, ROSE, DEAN, ALDRICH, DAY and FLANSBURG, JJ., ALLEN and REDICK, District Judges.
May 14 1920, Henry Dappen, M. C. Riley, Joseph Kean, Alfred Ramsey Mike J. Tiehen, Charlie Schutte, Ambrose Tiehen, Joseph Lanning, George Funk, John Lyons, and George Utermohlen, plaintiffs, for themselves and on behalf of "one hundred thirty other qualified resident school electors and duly assessed taxpayers," filed their petition in equity in the district court for Richardson county against Dan H. Weber, county superintendent of schools, and Joseph G. Heim, M. U. Riley, Gertrude Heim, L. L. Kinsey, H. W. Heim, and Daisy Smith, as the board of education of high school district No. 95 and acting as the board of education of consolidated district No. 15, to obtain a decree adjudging void the order of said Weber as county superintendent of schools of March 24, 1920, attaching the major part of districts Nos. 34, 35, 42, 43, 44, and 98 to and consolidating the same with Dawson high school district No. 95, and out of said adjoining territory and said Dawson high school district No. 95 creating consolidated district No. 15.
The substance and purpose of the petition are well stated in the following excerpt from the brief of counsel for appellants: "Upon May 14, 1920, Henry Dappen, and ten other school electors and taxpayers, filed a petition in behalf of themselves and one hundred thirty other school electors and taxpayers in the district court of said county, attaching thereto the record of the proceedings before the county superintendent, and alleging that the petition filed with the county superintendent was insufficient and that the order of annexation is void; alleging that the act under which the annexation was pretended to be made was void and unconstitutional; that the statutes pertaining to annexation had not been complied with, and praying that the annexation be declared void, the territory be restored as it previously existed, and that the defendants be restrained as county superintendent and members of the school board from exercising any jurisdiction or powers under or because of said order of annexation." "The answer admits that no written notice was given of the organization of school district No. 15, and no election was held for the purpose of organizing said school district and for the annexation; that, by virtue of the order of the county superintendent, the annexed territory was annexed to school district No. 95 and was thereby made a part of consolidated school district No. 15; that petitioners' protest had no valid force or effect and the county superintendent had no authority to grant the request."
Counsel for the defendants admits that "This action is brought to test the legality of such annexation or consolidation and to set aside the order of the district court holding such consolidation lawful."
Consolidated district No. 15 was organized under that part of section 6, ch. 243, Laws 1919, which reads as follows: "The new district when organized shall be governed by all laws enacted for the government of schools; provided, that if the proposed new district contains an organized consolidated or high school district, when a petition of not less than fifty-one (51%) per cent. of the school electors in said new district residing outside of the existing organized consolidated or high school districts shall be filed with the county superintendent, then he shall declare such territory to be so annexed, conditioned upon the approval of the board of education of said existing districts."
As we have just seen, the avowed purpose of this action is to obtain a decree setting aside and holding void consolidated district No. 15, and to prevent the board of education of Dawson high school district No. 95 from exercising authority over the adjoining territory as a board of said consolidated district. It is not claimed that the defendants, Joseph G. Heim, M. U. Riley, Gertrude Heim, L. L. Kinsey, H. W. Heim, and Daisy Smith, are not the legally qualified board of education of Dawson high school district No. 95, but it is urged that the organization of the consolidated district was defective (1) because, while the petition presented to the county superintendent for its establishment purported to contain over 51 per cent. of the names of the school electors in the adjoining territory, as a matter of fact it contained less than that number; and (2) because the order of the county superintendent was not approved by the board of education of the district from which the adjoining territory was taken. But the record shows that the county superintendent and the superintendent of public instruction recognized consolidated district No. 15 as a legal entity and the board of education of Dawson high school district No. 95 as its officers.
This being an appeal from the judgment of the district court in a suit in equity dismissing plaintiffs' action without day, it is to be tried de novo on the record there made, and we are required to "reach an independent conclusion as to what finding or findings are required under the pleadings and all the evidence, without reference to the conclusion reached in the district court or the fact that there may be some evidence in support thereof." Rev. St. 1913, sec. 8198. It is our duty, under such circumstances, to affirm the judgment of the district court if, for any sufficient reason appearing in the record, it was correctly entered.
Consolidated district No. 15 was at least a de facto public quasi corporation or governmental subdivision of the state for...
To continue reading
Request your trial