Grant v. Norris

• Citation: 85 N.W.2d 261,249 Iowa 236
• Decision Date: 17 September 1957
• Docket Number: No. 49193,49193
• Parties: Ralph GRANT, Frederick Chmura and Janet P. Petersen, Plaintiff-Appellees and Cross-Appellants, v. Ralph C. NORRIS, Polk County Superintendent of Schools and the Board of Education of Polk and Jasper Counties, Iowa, Sitting as a Joint Board for the Hearing of Objections to The Consolidated Independent School District of Southeastern, Polk and Jasper Counties, Iowa, Defendants-Appellants, Jas. Wilson, Marie Uhl, Dr. L. E. Ragan, Ben H. Person, Aneta Fritz, Walter Ferguson, Roy Marshall, Kenneth Ferguson, Otis Love, and May Miller, Intervenors-Appellees and Cross-Appellants.
• Court: United States State Supreme Court of Iowa

Page 261

85 N.W.2d 261

249 Iowa 236

Ralph GRANT, Frederick Chmura and Janet P. Petersen, Plaintiff-Appellees and Cross-Appellants, v. Ralph C. NORRIS, Polk County Superintendent of Schools and the Board of Education of Polk and Jasper Counties, Iowa, Sitting as a Joint Board for the Hearing of Objections to The Consolidated Independent School District of Southeastern, Polk and Jasper Counties, Iowa, Defendants-Appellants, Jas. Wilson, Marie Uhl, Dr. L. E. Ragan, Ben H. Person, Aneta Fritz, Walter Ferguson, Roy Marshall, Kenneth Ferguson, Otis Love, and May Miller, Intervenors-Appellees and Cross-Appellants.

No. 49193.

Supreme Court of Iowa.

Sept. 17, 1957.

Rehearing Denied Nov. 15, 1957.

Neal E. Smith and James Irish, Des Moines, for appellants.

Earl Gritton, Donald L. Beving, Howard Steele, and John V. Synhorst, Des Moines, for plaintiffs as appellees and cross-appellants.

Fey H. Moody, Des Moines, for intervenors as appellees and cross-appellants.

PETERSON, Justice.

On April 27, 1953, 'Request For Permission To Petition' was filed with County Superintendent of Schools of Polk County. It referred to a petition to call an election to consolidate eleven school districts in the eastern part of Polk County, and a district in western part of Jasper County. April 28, 1953, the Polk County Board of Education adopted a resolution granting permission to file the petition, and stating the proposed plan did not interfere with the over-all Polk County plan of reorganization of school districts. April 30, 1953, at eleven P.M., the petition was filed, signed by statutory number of voters, requesting that the twelve districts be consolidated into one district, to be called the 'Consolidated Independent School District of Southeastern, Polk and Jasper Counties, Iowa.' Proper statutory affidavits were filed. The petition was filed in accordance with the provisions of Chapter 276, 1950 Code, I.C.A. The 55th General Assembly was in session and on April 22, 1953, Chapter 117 was enacted. This Chapter (now Chapter 275, 1954 Code, I.C.A.) repealed Chapter 276, 1950 Code. Provision for publication was included. Publications were made on April 27th and April 30th. Chapter 117, 55th G.A., therefore, became effective May 1, 1953. There was a saving clause in the Act, the effect of which we will consider hereafter. The County Superintendent of Polk County proceeded under Chapter 276 and on May 14th he caused notice to be published fixing October 1, 1953, as the final date for filing objections to the petition and for a hearing before him on the petition and objections. Plaintiffs and other residents filed objections, and hearings were held. On November 10th the superintendent filed his ruling in which he overruled the objections, sustained the petition, and fixed the boundaries of the proposed district as set out in the original petition, with the exception of excluding a small area in Jasper County, the exclusion of which had been requested by the Jasper County Board of Education. Notice of the order was duly published. Plaintiffs and other persons appealed from the superintendent's rulings to the Joint Boards of Education of Polk and Jasper counties. Upon hearing the joint boards included eight of the districts for which petition for consolidation had been filed. They excluded three districts, a two section tract in North Camp District, and all remaining area in Jasper County. The County Superintendent of Polk County then published notice of an election on formation of the district, to be held on May 11, 1954, in the eight districts approved by the joint boards. The proposition carried in six of the eight districts. It failed to carry in the districts known as North Camp and Pleasant Hill. The County Superintendent, still proceeding under the provisions of repealed Chapter 276, considered the proposition carried in all eight districts and called an election to elect five directors and a treasurer for the new consolidated school district.

On April 27, 1954, plaintiffs, residents of Pleasant Hill District, filed petition in Polk County District Court for writ of certiorari against Polk County Superintendent of Schools and the Boards of Education of Polk and Jasper counties. The petition alleged defendants acted contrary to law and in excess of their jurisdiction in fixing the boundaries of the proposed district, and in proposing to call and hold an election. The court refused to stay the proceedings, and the election was held. After the election plaintiffs filed amendment to petition charging the County Superintendent had acted illegally in calling and holding the election for directors and treasurer in the new territory. On June 7, 1954, petition of intervention was filed in the case by Jas. Wilson, et al., the intervenors named in this appeal, who were residents and electors of Mitchellville, Runnells, and North Camp school districts, alleging illegal acts as hereafter specified. On trial of the case the court approved the following procedure: action of the joint boards in fixing the boundaries to include the eight districts and excluding the three districts, the two sections in North Camp District, and Jasper County area; all proceedings by County Superintendent of Polk county and Joint Boards of Education as to hearings, and the fixing of the boundaries of the new district under the provisions of the repealed Chapter 276; the election held by the eight districts on May 11, 1954, for the formation of the consolidated district. However, the court then held: as to this election, and thereafter, the provisions of Chapter 117, 55th G.A., became effective; that under Chapter 117, since the proposition carried in six districts, said districts became the new Consolidated Independent School District of Southeastern; that since the proposition had failed in North Camp district and Pleasant Hill district they did not become a part of the new consolidated district; that the election of June 17, 1954, for directors and treasurer was null and void because it included all eight districts instead of only the six districts in which the proposition had carried.

Defendants appealed, alleging two errors: 1st: that plaintiffs waived their right to maintain this action by voting for directors and treasurer at the June 17th election. 2nd: that under the general saving statute as to legislative enactments, Section 4.1(1), Code of 1950, I.C.A., and the specific saving clause in Chapter 117, 55th G.A., the provisions of Chapter 276, Code of 1950, I.C.A., should apply as to all procedure from the filing of the petition through the election for directors and treasurer and complete formation of the district.

Plaintiffs filed cross-appeal alleging that if this court should hold Chapter 276, 1950 Code, I.C.A., applicable throughout all the procedure, the proceedings after November 10, 1953, were void because: 1st: the North Camp district was reduced by the joint boards to less than four sections contrary to Section 276.20, 1950 Code, I.C.A. 2nd: there are three villages in the area involved, in which the residents should have voted separately, and without the vote of said villages the election to form the district did not carry.

Intervenors filed cross-appeal on following grounds: 1st: the procedure is illegal because the trial court failed to apply the provisions of Chapter 117, 55th G.A., as to all proceedings from and after its effective date on May 1, 1953. 2nd: the Joint Boards of Education illegally excluded Mitchellville and Runnells. 3rd: if we should hold Chapter 276, 1950 Code, I.C.A., applies to all proceedings, the election failed because: a. with three villages not voting separately the proposition failed: b. North Camp district was reduced to less than four sections.

Defendant Ralph C. Norris filed cross-appeal, and the directors and treasurer elected on June 17, 1954, filed appeal, but presented no separate briefs and arguments.

We will simplify and combine all issues raised by appellants and cross-appellants to consideration of five matters. 1st: Plaintiffs did not waive their right to maintain this action by voting for directors and treasurer at the election of June 17, 1954. 2nd: The general statutory saving provision of Section 4.1(1), 1950 Code, I.C.A., and the specific saving clause of Chapter 117, 55th G.A., granted to the County Superintendent and Joint Boards of Education the right to maintain and conclude all proceedings for the formation of the new consolidated district under Chapter 276, 1950 Code, I.C.A. 3rd: Since Chapter 276, 1950 Code, I.C.A., controls proceedings to conclusion, the trial court erred in holding the four section inhibition of section 276.20 did not apply. Therefore all proceedings, after order of County Superintendent on his hearing, are null and void. 4th: We do not reverse on questions of existence of villages, and exclusion of Runnells Consolidated District and Mitchellville Independent District, but we consider them for the benefit of future proceedings. 5th: The County Superintendent of Polk County and Joint Boards of Education of Polk and Jasper Counties can now proceed with formation of consolidated district under Chapter 276, 1950 Code, I.C.A., on basis of petition now on file, subject to the provisions of this decision.

All parties agree, and no error is assigned by appellants or cross-appellants, as to effective date of Chapter 117, 55th G.A. Since this question is basic as to our decision we will consider it briefly. The legislature provided for publication. The last publication was on April 30, 1953. The Act therefore became effective on May 1, 1953. Section 38 of Chapter 117 provides: it 'shall be in full force and effect from and after its publication.' 82 C.J.S. Statutes § 409, states with reference to legislative enactment: '* * * where it is to take effect 'from and after' a day named, that day is generally construed to be excluded from the * * * act * * *'. Also see Brown...