Darnell v. Higgins
| Citation | 140 Okla. 31,1929 OK 289,282 P. 132 |
| Decision Date | 10 September 1929 |
| Docket Number | Case Number: 19107 |
| Parties | DARNELL et al. v. HIGGINS, County Supt., et al. |
| Court | Supreme Court of Oklahoma |
¶0 1. Schools and School Districts--Equitable Relief Denied Where Statutory Remedy by Appeal--Orders of County Superintendent Attaching Territory to Consolidated School District.
Equitable jurisdiction to review the action of a county superintendent of public instruction in attaching territory to a consolidated school district under the provision of section 10462, C. O. S. 1921, will not be entertained by a court nor relief granted by injunction in such a case except where fraud, corruption, oppression, or gross injustice is clearly shown, or where the final order and action of the county superintendent complained of is wholly void by reason of the absence of jurisdiction, because the provision of section 10321, C. O. S. 1921, affords the aggrieved party a statutory remedy by appeal from the action of such county superintendent to the board of county commissioners.
2. Same--Denial of Equitable Relief Sustained.
The exceptions referred to in the rule announced in the above paragraph are not present or shown under the facts and record of this case, and we find and hold the record herein sufficient to support the judgment of the trial court in denying the injunctive and other relief prayed for by plaintiffs.
Commissioners' Opinion, Division No. 1.
Error from District Court., Wagoner County; Enloe V. Vernor, Judge.
Action by W. H. Darnell et al. against Jennie Higgins, County Superintendent of Public Instruction, et al. Judgment for defendants, and plaintiffs appeal.
Affirmed.John C. Graves and George M. Nicholson, for plaintiffs in error.
E. L. Kirby, T. M. Markley, and A. L. Harris, for defendants in error.
¶1 This is an appeal from a judgment of the district court of Wagoner county denying certain injunctive or equitable relief prayed for by the plaintiffs W. H. Darnell et al., against Jennie Higgins, county superintendent of public instruction of Wagoner county, et al. The facts leading up to the judgment appealed from and relating to prior proceedings in the matter are, in substance:
¶2 On August 6, 1925, there was filed with Jennie Higgins, county superintendent, hereinafter referred to as superintendent, a petition signed by a majority of the legal voters of school district No. 51 and a resolution by the board of directors of consolidated school district No. 3, requesting that the territory comprising district No. 51 be attached to and become a part of the consolidated district. Twenty days' notice of the proposed change as petitioned for was posted, and on the 27th day of August, the date specified in the notice, and prior to any action on the petition, there was filed with the superintendent a protest on behalf of the plaintiffs herein, including 16 other persons, against the proposed change, and a written request by the same parties that their names be withdrawn from the petition previously signed and filed by them. The superintendent made an order on August 27th approving the transfer of the territory comprising district No. 51 to consolidated district No. 3, and on the same date the plaintiffs in this action, joined by two others, filed their action in the district court of Wagoner county, praying a writ of certiorari for the purpose of having reviewed the action of the superintendent in the matter. On August 29th, 13 of the persons who had signed the original petition, the protest thereon and request to withdraw their names therefrom, filed with the superintendent a written request that their names remain on the original petition, alleging therein that the action in requesting their names be withdrawn from the original petition was procured through misrepresentation and fraud, and on that date the superintendent entered an order vacating her previous order of the 27th and reciting therein that hearing on the original petition would be continued to September 1st.
¶3 On September 1st the superintendent entered an order wherein it is recited that there were 100 legal voters in school district No. 51, and that more than a majority thereof, 53, had signed the petition requesting such district be attached to district No. 3, and ordered that the territory comprising district No. 51 be attached and become a part of consolidated district No. 3, and caused notice of such action to be posted as provided by section 10321, C. O. S. 1921, and thereafter, no appeal having been taken from the order, changed the record and boundaries accordingly and notified the districts affected.
¶4 The district court of Wagoner county, after a hearing on the writ of certiorari issued by it on August 27th, later entered its order and judgment denying the plaintiffs therein any relief on the ground that they had a plain and adequate remedy at law by appeal from the order of the county superintendent, and that the action was prematurely and improperly brought, from which ruling and judgment the plaintiffs gave notice of appeal, but instead of appealing they filed their petition and original action in the Supreme Court, wherein they set forth the proceedings had and done relating to the transfer and annexation of the territory comprising district No. 51 to district No. 3, and prayed a writ of certiorari against the defendant, Jennie Higgins, county superintendent, and that upon a hearing thereon such transfer be held null and void, and that school district No. 51 be restored to its original and legal status.
¶5 This court after issuing the writ and a hearing on such petition denied the plaintiffs any relief, it being stated in the syllabus of the opinion, reported in 124 Okla. 201, 255 P. 678, as follows:
"Under section 10472, C. S. 1921, and section 10321, Id., qualified electors of any part of a school district, aggrieved by reason of an order made by the county superintendent of public instruction attaching certain adjacent territory to a consolidated school district, may appeal to the board of county commissioners from the action of such county superintendent; and by reason of such right of appeal, the writ of certiorari does not lie."
¶6 Thereafter, on June 10, 1927, the present action was filed in the district court of Wagoner county, where the plaintiffs, after reciting in their petition the filing of the original petition with the county superintendent, the withdrawal therefrom by certain of the signers thereof, the order entered by the superintendent on August 27th, and alleging that the defendants had caused an estimate and levy for school taxes to be spread upon the tax records and books of Wagoner county and were collecting taxes from the territory of school district No. 51 for the use and benefit of consolidated district No. 3, and were attempting to take over and dispose of the property and funds of school district No. 51, concluded with a prayer that the county superintendent be ordered to cancel the order of consolidation complained of, that school district No. 3 be directed to account to district No. 51 for any and all funds received by it from taxes collected against property located in school district No. 51, and that the county treasurer be restrained from turning over to district No. 3 any funds derived from taxes on property within school district No. 51, and that district No. 51 be restored to its original and legal entity.
¶7 A response or answer was filed by the defendant wherein the various steps relating to the matter of the transfer were set forth and the previous judgments in the actions filed by the plaintiffs in the matter were pleaded as res judicata, and prayed that plaintiffs be denied any relief.
¶8 On the issues joined a trial was had before the court, who made certain findings of fact and conclusions of law and entered judgment in favor of the defendants, from which judgment the plaintiffs bring this appeal and present their several assignments of error and argument thereon under the general proposition:
"That under the facts disclosed by the record, the county superintendent was without power or jurisdiction to make the order of consolidation complained of and therefore said order of consolidation was void."
¶9 In support of their proposition and argument, the plaintiffs call attention to the cases of Gregg v. Hughes, 89 Okla. 168, 214 P. 904, and Chandler, County Supt., v. Barber, 113 Okla. 222, 241 P. 145, wherein it was held that the provisions of sections 10462 and 10321, Comp. Stat. 1921, relating to attaching territory to a consolidated school district, are mandatory and jurisdictional.
¶10 Those cases are distinguishable from the instant one, in that no notice whatsoever was given in the matter of the transfer, and clearly the superintendent, under the facts in those cases, did not acquire sufficient jurisdiction and authority to make the transfer; furthermore, the proceedings involved in those cases were reviewed under a writ of certiorari, it being specifically stated in the Gregg v. Hughes Case, supra, that:
"There was no other remedy left, for that the ordinary statutory provision of appeal was lost because of no fault or negligence on the part of plaintiffs, but because no notice was given."
¶11 In the instant case notice was given, and, as stated in the previous opinion rendered and referred to herein, this court specifically denied relief under a writ of certiorari upon the ground and for the very reason that the plaintiffs had a plain and adequate remedy at law by appeal. Plaintiffs appeared before the superintendent by their counsel and protested against the proposed transfer and had notice of all orders, according to the specific findings to that effect by the trial court, and apparently were in no wise prevented from following the statutory provisions relating to appeal.
¶12 Pettis v. Johnston, 78 Okla. 277, 190 P. 681, and other cases from this court are cited wherein it was held in effect that:
"Where...
To continue reading
Request your trial