Durant Community School Dist., In re

• Decision Date: 13 December 1960
• Docket Number: No. 50144,50144
• Citation: 106 N.W.2d 670,252 Iowa 237
• Parties: Appeal from Decision and Order of the State Board of Public Instruction in the Matter of the Proposed DURANT COMMUNITY SCHOOL DISTRICT. BOARD OF DIRECTORS, DURANT COMMUNITY SCHOOL DISTRICT IN COUNTIES OF CEDAR, MUSCATINE AND SCOTT, State of Iowa, et al., Appellants, v. IOWA STATE BOARD OF PUBLIC INSTRUCTION et al., Appellees.
• Court: Iowa Supreme Court

Page 670

106 N.W.2d 670

252 Iowa 237

Appeal from Decision and Order of the State Board of Public Instruction in the Matter of the Proposed DURANT COMMUNITY SCHOOL DISTRICT. BOARD OF DIRECTORS, DURANT COMMUNITY SCHOOL DISTRICT IN COUNTIES OF CEDAR, MUSCATINE AND SCOTT, State of Iowa, et al., Appellants,

v.

IOWA STATE BOARD OF PUBLIC INSTRUCTION et al., Appellees.

No. 50144.

Supreme Court of Iowa.

Dec. 13, 1960.

Brooke & Barclay, West Liberty, Newport & Wine, Davenport, and Donnelly, Lynch, Lynch & Dallas, Cedar Rapids, for appellant.

A. Wayne Eckhardt, Muscatine, and Casterline & Casterline, Tipton, for appellees.

GARFIELD, Justice.

This is another of the many school reorganization controversies to come before us recently.

Voters of Durant Community School District and four contiguous districts or parts thereof filed a merger petition to which objections were filed. The joint county boards of education of Cedar, Scott and Muscatine counties, in which the affected territory is situated, deleted a small part of the area proposed to be included in the enlarged district and as thus modified approved the formation of the district. Some of the objectors lived in the deleted area.

Two rural districts, Montpelier No. 4 and Sweetland No. 5, then brought the controversy to the state department of public instruction as provided by section 275.16, Code 1958, I.C.A. Following a hearing before the state superintendent of public instruction and two assistants the state board dismissed the petition. From this order of dismissal the boards of the Durant and Montpelier No. 2 districts, the Cedar county board and superintendent appealed to the district court of Cedar county. After trial the court affirmed the order of the state board and dismissed the appeal. From this decree appellants in the district court appealed to us.

I. Appellants' first proposition for reversal is that the state department was without jurisdiction to consider the controversy because the Cedar county superintendent of schools was not served with notice by the two rural districts of the proceeding before the department. Appellants' petition on appeal to the district court alleges notice on the county superintendent of what they call the appeal to the state department is specifically required by section 275.18, Code 1958, I.C.A., by reference to section 285.12. The district court rejected this contention as the state department previously did. We approve the ruling.

Sections 275.18 and 285.12 do not require notice on the county superintendent by the party who brings a controversy of this kind to the state department.

Section 275.16 contains this vital provision for bringing a controversy like this to the state department: 'In case a controversy arises from such meeting, the county board or boards or any school district aggrieved may bring the controversy to the state department of public instruction, as provided in section 275.8, within twenty days from the publication of this order, and if said controversy is taken to the state department of public instruction, a ten-day notice in writing shall be given to all county boards and school districts affected or portions thereof.'

This does not provide for notice in order to 'bring the controversy to the state department.' Section 275.8 contains no such requirement. (It provides for taking to the state department controversies over the planning of joint districts.) If a controversy like this is taken to the department a ten-day written notice shall be given all county boards and affected districts or portions thereof. Section 275.16 does not require this ten-day notice to be given the county superintendent. This notice evidently may be given by the department and it was so given here and to the Cedar county superintendent on May 6, 1959, of the hearing to be held May 18.

Previously the two rural districts which brought the controversy to the state department served notice on the Cedar county board and the county superintendent had knowledge thereof. He was the secretary and executive officer of the county board. The ten-day period to which section 275.16 refers is apparently ten days prior to the hearing on the controversy brought to the department. The county superintendent here forwarded to the state department all papers in his office pertaining to the proposed district and personally appeared at the hearing before the state superintendent and his two assistants and participated in it.

We come now to the provisions of sections 275.18 and 285.12 upon which appellants base their first proposition. The pertinent part of 275.18 is: 'In the case of joint districts, no notice for an election shall be published until the time for appeal, which shall be the same as that provided in section 285.12, has expired; * * *.'

Section 285.12, in the chapter entitled 'State Aid For Transportation,' provides: 'Either party may appeal the decision of the county board to the state superintendent of public instruction by notifying the opposite party and the county superintendent of schools in writing within five days after receipt of notice of the decision of the county board of education * * *.' The same section also provides for an earlier appeal, in the event of a disagreement between a school patron and district board over transportation of pupils, to the county board of education. Time for this appeal is within ten days after the decision of the district board.

It is not clear whether 'the time for appeal' referred to in section 275.18, quoted above, is the ten-day period allowed by 285.12 for the earlier appeal to the county board or the five-day period there allowed for the later appeal to the state superintendent of public instruction. In any event, it is plain the reference in section 275.18 is merely to the time for appeal as provided in 285.12 and not to the necessity of serving any party. In other words, 275.18 incorporates by reference only the provision of 285.12 as to time for appeal. Nothing further may fairly be claimed for the reference to 285.12 in 275.18.

It will be noticed the pertinent part of section 275.16, before quoted, allows 20 days from the publication of an order of joint boards fixing boundaries of a proposed district to bring a controversy like this to the state department. It would seem this provision allowing 20 days to bring the controversy to the state department is controlling as to time allowed rather than either of the periods section 285.12 provides for appeal (ten or five days) of a disagreement over transportation of pupils.

Since appellants do not contend this controversy was not brought to the state department within the time allowed we are not called upon to decide what the allowable time period is. We do hold the reference to section 285.12 in 275.18 did not require the two rural districts who brought the controversy to the state department to serve notice upon the Cedar county superintendent. This disposes of appellants' first proposition.

II. Appellants' second proposition is that the state board lacked jurisdiction to dismiss the petition because only the state superintendent and his two assistants conducted the hearing. It is said this should have been before the board which consists of nine members. One of the two assistant superintendents is and has been for about 20 years a lawyer.

It is true the hearing before the state department was conducted by the superintendent and his two assistants. Counsel represented the interested parties. After the hearing the state superintendent as executive officer of the state board of public instruction (Code section 257.16, I.C.A.) signed a paper designated 'Appeal Decision and Order' consisting of a statement of the issues, findings of fact, conclusions of law and decision and order. This paper was approved by the state board and signed by its president after consideration at a regular board meeting. The state board had specifically delegated to the three officials who conducted the hearing the authority to do what they did here and the procedure was in accord with the practice of the department. Incidentally see Board of Education in and for Franklin County v. Board of Education in and for Hardin County, 250 Iowa 672, 674, 95 N.W.2d 709, 710.

As before pointed out, section 275.16 provides an aggrieved county board or boards or school district may bring a controversy like this to the state department. The state superintendent and his two assistants are members of the department. The opinion just cited so refers to them.

Section 257.10(4) provides it is the responsibility of the state board 'to review the record and decision of the superintendent * * * in all appeals heard and decided by said superintendent, whereupon it shall approve same or may direct a rehearing before said superintendent.' Section 257.18(10) gives this as a responsibility of the state superintendent: 'when practicable, amicably adjust and settle such controversies * * * as may be submitted to him, directly or by appeal, by all persons directly concerned, to hear and decide appeals as provided by law.' We find no statute which requires a hearing like the one here to be held before the entire board.

Although the statutory provisions may not be as clear as they might be, we think the state board did not lack jurisdiction, under the circumstances here, to dismiss the reorganization petition merely because the state superintendent and his two assistants, rather than the board, conducted the hearing.

We may observe that appellants evidently did not object to the procedure before the state department in the respect now considered. Their attorneys filed a special appearance with the state department alleging it lacked jurisdiction on the ground the present appellees (appellants there) did not notify the Cedar county superintendent of the proceeding before the department. But this added ground for the claim of lack of jurisdiction was not there...