Electors of Big Butte Area v. State Bd. of Ed.

• Decision Date: 11 March 1957
• Docket Number: No. 8491,8491
• Citation: 308 P.2d 225,78 Idaho 602
• Parties: ELECTORS OF BIG BUTTE AREA, Plaintiffs-Respondents, v. STATE BOARD OF EDUCATION, Defendant-Appellant. In the Matter of the Petition of Two-Thirds or More of the Qualified Electors of the Big Butte Area of Idaho County, State of Idaho.
• Court: Idaho Supreme Court

Page 225

308 P.2d 225

78 Idaho 602

ELECTORS OF BIG BUTTE AREA, Plaintiffs-Respondents, v. STATE BOARD OF EDUCATION, Defendant-Appellant In the Matter of the Petition of Two-Thirds or More of the Qualified Electors of the Big Butte Area of Idaho County, State of Idaho.

No. 8491.

Supreme Court of Idaho.

March 11, 1957.

Graydon W. Smith, Atty. Gen., Edward J. Aschenbrener, Elbert E. Gass, Asst. Attys. Gen., for appellant State Board of Education.

Swayne & McNichols, Orofino, for respondents.

TAYLOR, Justice.

The petitioners (respondents) are residents and qualified electors of an area lying in the north or northwest part of Independent Class A School District No. 241, Idaho and Adams Counties. They filed their petition on the 13th day of May, 1953, with the state board of education (appellant), requesting that the area particularly described be separated from district No. 241 and added to Joint Class B School District No. 302, Lewis and Clearwater Counties. In their petition they set forth as reasons for the change that (1) Nezperce, where the school plant and facilities of district 302 are located, is within the natural trade area for their territory, and that they have their church, lodge and other affiliations therein; (2) the area can be serviced by district No. 302; (3) and the area cannot be serviced by district No. 241. This petition was filed pursuant to the provisions of Sec. 33-514, I.C., as amended by chapter 115, session laws of 1953. The amendment is as follows:

'Provided further, that when at least two-thirds of the qualified electors residing in any area of any school district, wish to separate out of such district and become a part of an adjoining school district, they may file a petition with the state board of education, showing their names, places of residence and post office addresses, and describing the exact area, by metes and bounds, with legal subdivisions according to the federal land survey, which they propose to be joined to such other district and setting forth the grounds and reasons therefor. Upon the filing of such petition, the state board of education is authorized and required to hold a public hearing upon such petition, before one or more members of such board, at a time and convenient place to be fixed by such board within the area proposed to be separated out from said district, and give notice thereof to each of the petitioners and to the boards of trustees of all affected school districts by United States mail to appear and testify at such hearing. Upon the conclusion of such hearing, the board of education is authorized and required to make its findings and order, determining whether or not said petition shall be granted which determination shall be based upon what is for the best interest of the students and schools concerned, that the proposed change shall not place unnecessary financial hardship upon the affected districts and with such modifications as the board shall prescribe and, in the event it determines that the request of such petitioners shall be granted, with or without modifications, the board shall make its order to that effect, changing the boundaries of such school districts concerned in conformance with such order, so as to separate out of the said area, or such part as it determines, from the district of which it is a part and join it to the district proposed by the petitioners; and such order shall be conclusive, except for the right of any interested person to appeal therefrom to a court of competent jurisdiction.' Sec. 33-514, I.C. (Emphasis added.)

The area proposed to be transferred is known and referred to as the 'Big Butte Area'. Before reorganization it was in part a separate school district. It has its own school building, which is still in use as one of the units of district No. 241.

For more than a year following the filing of the petition the board neglected and refused to hold a public hearing as required by the statute, and did not fix a time for such a hearing until an order to show cause for its refusal was issued by the district court.

A hearing was had before two members of the board in the Big Butte school house, August 26, 1954. November 3, 1954, the board made its findings and entered its order, 'that the petition herein be denied in toto without modification.' From this order the petitioners appealed to the district court, where the cause was tried de novo April 18, 1956. June 11, 1956, judgment was entered reversing the order of the board, and the board brought this appeal. Initially the board refused to certify the record, made before it, to the district court. Responding to an order to show cause, the board challenged the jurisdiction of the district court to try the cause de novo; urged that the court could consider the appeal only as a proceeding for review under the provisions of title 7, chapter 2, I.C.; and that its inquiry would be limited to the two questions, (a) whether the board acted in excess of its jurisdiction, and (b) whether the board had regularly pursued its authority. After hearing the issues thus raised, the court made its order November 8, 1955, directing the board to certify the record, as requested by the notice of appeal.

Upon the trial, the record certified by the board, and other evidence, both oral and documentary, was received.

The question raised is as to the nature and the scope of the appeal. What is meant by 'appeal therefrom to a court of competent jurisdiction'? There can be no question that the district court is such a court. Constitution, Art. 5, Sec. 20. The review provided for by chapter 2, of title 7, is described as follows:

'A writ of review may be granted by any court except a probate or justice's court, when an inferior tribunal, board or officer exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy.' Sec. 7-202, I.C.

'The review upon this writ can not be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer.' Sec. 7-208, I.C.

The legislature provided for an 'appeal'. We cannot hold that it intended to say, 'writ of review'. In the absence of limitations an appeal is of broader scope than certiorari. Appeal being provided for, and an appeal being also an adequate remedy, a writ of review could not be had. However, this does not necessarily dispose of the question as to the scope of the appeal. Appellant contends the district court may not receive additional evidence, but is confined to the record made before the board, and that the court may not make independent findings of fact, but is bound by the findings made by the board.

'The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.' Art. 2, Sec. 1, Constitution of Idaho.

It is conceded that the creation, destruction, expansion or contraction of school districts is a legislative function. Constitution, Art. 9, Sec. 1; Art. 3, Sec. 1. The legislature has plenary powers in such matters. In re Common School Dists. Nos. 18 and 21, 52 Idaho 363, 15 P.2d 732. A statute authorizing the district court on finding certain facts to detach lands from a municipality does not vest legislative power in the court. Lyon v. City of Payette, 38 Idaho 705, 224 P. 793. Cf. Annotations, 64 A.L.R. 1352; 69 A.L.R. 266; 117 A.L.R. 276.

The judicial power of the state is vested in the courts. Art. 5, Sec. 2.

'The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a coordinate department of the government; but the legislature shall provide a proper system of appeals, and regulate by law, when necessary, the methods of proceeding in the exercise of their powers of all the courts below the Supreme Court, so far as the same may be done without conflict with this Constitution.' Constitution, Art. 5, Sec. 13.

It is not always possible to draw a sharp line of distinction between legislative, judicial and executive powers or functions, nor does it appear necessary to the purpose of the constitutional separation of powers, to do so.

In Tular Water Co. v. State Water Commission, 187 Cal. 533, 202 P. 874, the supreme court of California, in considering a statute West's Ann.Water Code, Sec. 1250 et seq. which authorized an investigation and the exercise of discretion by the commission as to the sufficiency of an application to appropriate water and the existence of water subject to appropriation, said:

'Even if a hearing could be required, the Commission is without jurisdiction to finally determine the existence or nonexistence of water subject to appropriation, and in such a case its denial of an application, if held to be a judicial determination of the right, would leave the petitioner without remedy, as no appeal is provided for, and certiorari would only go to the regularity of the proceeding, and not to the merits of the ruling.

'* * * To conclude the rights of would-be appropriators, by the extrajudicial, and perhaps arbitrary, action of a board of water commissioners, would be to deprive such applicant of a valuable property right without due process of law.' 202 P. at page 876.

And in Tarpy v. McClure, 190 Cal. 593, 213 P. 983, involving the creation of a water storage district:

'Unquestionably, the creation of such a district is a legislative act, the performance of which may not be delegated by the Legislature to an executive or judicial officer. [Cases.] On the other hand, it is equally well settled...