Gregg v. Hughes
| Decision Date | 17 April 1923 |
| Docket Number | Case Number: 14141 |
| Citation | 89 Okla. 168,214 P. 904,1923 OK 212 |
| Parties | GREGG et al. v. HUGHES et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Courts--Jurisdiction of Supreme Court --Certiorari.
Section 2, art. 7, of the Constitution vests this court with original jurisdiction to issue the writ of certiorari.
2. Same--Right to Remedy.
In the absence of other remedy, the common-law writ of certiorari is valuable to review the question of jurisdiction, power, or authority to perform acts or enter orders which are judicial or quasi judicial in their nature; and under such circumstances this court will take original jurisdiction when invoked, where the acts complained of are publici juris.
3. Schools and School Districts--Consolidated District--Attaching Adjacent Territory--Notice.
That part of section 1, art. 7, ch. 219 of the Session Laws of 1913, as amended by Session Laws of 1917, page 473, which is: "Provided that all or a part of any district adjacent to a consolidated district shall be attached to and become a part of any consolidated district upon petition to the county superintendent signed by a majority of the legal voters of such territory desiring to be attached, and by the board of directors of such consolidated district," authorizes the county superintendent to attach a part or the whole of an adjoining school district to a consolidated district, but the notice required to be given by section 11, art. 2, ch. 219, Session Laws of 1913, as amended by the Session Laws of 1919, page 319, is jurisdictional, and no authority exists to enter such order unless the notice by said section provided is first given.
4. Same--Lack of Notice--Invalidity of Orders.
No notice having been given in the case at bar, the order of the county superintendents of Garvin and Murray counties, entered September 29, 1922, attaching the strip of territory in question of district 32, Garvin county, to consolidated district 1 of Murray county, is void, and the same is vacated, set aside, and held for naught.
Certiorari by E. T. Gregg and others against Roxie Hughes and another. Writ sustained.
Blanton & Osborn, for plaintiffs in error.
H. G. Butts, and Mac Q. Williamson, for defendants in error.
¶1 In February, 1923, the petition of the plaintiffs, numerous resident citizens and taxpayers and patrons of school district No. 32 of Garvin county, Okla., and of the strip herein mentioned detached therefrom, was filed in this court, invoking its original jurisdiction, for a writ of certiorari to the defendants, the county superintendent of schools of Garvin county, and the county superintendent of schools of Murray county, Okla., to quash, vacate, and set aside an order entered by the defendants detaching a certain portion of school district No. 32 of Garvin county and attaching the same to consolidated school district No. 1 of Murray county, Okla.
¶2 The material facts pleaded by the plaintiffs, resulting in the order which this writ is sought to vacate and set aside, summarized, in substance, are: That prior to September, 1922, on petition filed with the county superintendent of Murray county, consolidated school district No. 1 was formed, and that this district is on the border line between Murray and Garvin counties, and that on September 18, 1922, upon petition filed with the county superintendents of Murray and Garvin counties, praying that certain portions of certain sections adjoining school district No. 1 of Murray county but being a part of school district No. 32 of Garvin county, be detached from said school district No. 32 and attached to said consolidated district No. l, and that without notice to the plaintiffs or to the residents, voters, taxpayers, officers, or patrons of school district No. 32, and on the 29th of September, 1922, the said defendants, superintendents of the said Murray and Garvin counties, without any hearing or any notice, made an order, which was duly placed of record, as provided by law, detaching the said territory or strip from said school district No. 32 and attaching the same to said consolidated school district No. 1, and that said order made by said superintendents is wholly void, for the reason that no notice of any kind or character, as required by law, was given, which was a prerequisite to the jurisdiction and authority of said officers to enter said order.
¶3 The question raised has not heretofore been passed on by this court. Objection is made to the exercise of the original jurisdiction of this court by the defendants, for the reason that application was made to the district court of Garvin county for the writ now sought in this court, and the said court refused to entertain it, and dismissed same for want of Jurisdiction. The defendants contend that the plaintiffs here, being the same as the plaintiffs there, should have appealed from said order of the district court of Garvin county.
¶4 This court has original jurisdiction to issue the writ of certiorari, among other writs, by reason of section 2, art. 7, of the Constitution of the state, which says in relation thereto:
¶5 Plaintiffs in their petition recite, and it is not drawn into question by the defendants, that they have fully complied with rule 15 of this court, and under the facts pleaded the mere fact that the district, court of Garvin county refused to entertain jurisdiction and hear the matter on its merits--this being a matter in which the public has an interest, the original jurisdiction of this court is not destroyed because application was made to the district court and the said court refused to entertain the same. State ex rel. Freeling v. Ross, 76 Okla. 11, 183 P. 918; Clark v. Warner, 85 Okla. 153, 204 P. 929.
¶6 The plaintiffs are met also at the inception of this case by a motion to dismiss the petition, for the reason that certiorari will not lie in this cause.
¶7 In the absence of other remedy, the common-law writ of certiorari will lie to review the question of jurisdiction, power, and authority to perform acts or enter orders which are Judicial or quasi judicial in their nature, such as are the acts in question here. Wulzen v. Board of Supervisors (Cal.) 101 Cal. 15, 35 P. 353; People v. Featherstonhaugh (N.Y.) 172 N.Y. 112, 64 N.E. 802; Note, 30 L. R. A. (N. S.) 321; Barry v. Blackhawk Co., Dist. Crt. (Iowa) 167 Iowa 306, 149 N.W. 449; Woolsey et al. v. Nelson, 43 Okla. 97, 141 P. 436; King et al. v. O'Reilly, 83 Okla. 297, 201 P. 641; Davis v. Whitehead, 86 Okla. 273, 208 P. 216.
¶8 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. Note, 40 A. S. R. 30, and cases there cited; 11 C. J. page 177.
¶9 In the case of Fowler v. Park, 79 Okla. 1, 190 P. 668, this court held that injunction would not lie in a proceeding of this character. Quo warranto is not available, because no attack is made upon the formation and existence of consolidated district No. 1 or the right of the officers to function.
¶10 It follows, therefore, that the motion to dismiss the petition must be denied. This brings us to the merit of the question which is raised. The defendants have waived the issuance of the writ, and no issue is raised except one of jurisdiction or the defendants to enter the order attaching a part of school district No. 32 of Garvin county to consolidated district No. 1 of Murray county.
¶11 If the notice required by section 11 of article 2, chapter 219, Session Laws of 1913, as amended by Session Laws of 1919, page 319, to be given before the county superintendent has jurisdiction to order boundaries of common school districts changed, is required before the superintendent has Jurisdiction to enter an order attaching "all or a part of any district," etc., adjacent to a consolidated district, under the proviso in section 1, article 7, chapter 219, Acts of 1913, as amended by Acts of 1917, page 473, then the act of the defendants in entering the order complained of was void, the writ must be sustained, and the said order of the defendants vacated, and the strip-detached restored to district No. 32 of Galvin county. School District No. 44, Caddo Co. v. Turner, 13 Okla. 71, 73...
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