Harden v. Board of Ed. of Independent School Dist. No. 22 of Osage County

• Decision Date: 15 October 1946
• Docket Number: 32378.
• Citation: 173 P.2d 429,197 Okla. 598,1946 OK 276
• Parties: HARDEN et al. v. BOARD OF EDUCATION OF INDEPENDENT SCHOOL DIST. NO. 22 OF OSAGE COUNTY et al.
• Court: Oklahoma Supreme Court

173 P.2d 429

197 Okla. 598, 1946 OK 276

HARDEN et al. v. BOARD OF EDUCATION OF INDEPENDENT SCHOOL DIST. NO. 22 OF OSAGE COUNTY et al.

No. 32378.

Supreme Court of Oklahoma

October 15, 1946

Appeal from District Court, Osage County; Hugh C. Jones, Judge.

Action by the Board of Education of Independent School District No 22 of Osage County against Board of Education of Independent School District No. 29 and others to vacate a previous court order directing annexation of land to District No. 29, and for writs of mandamus. W. R. Harden and others, as citizens and taxpayers, intervened. From a judgment granting the relief sought by plaintiff, interveners appeal, and plaintiff moves to dismiss the appeal.

Appeal dismissed.

Syllabus by the Court

1. Where the school board of one school district instituted an action in the District Court against the board of another school district and certain county officials, for relief which could only be obtained by said defendant county officials being ordered to do certain things in the performance of their official duties, and the court granted such relief with one unimportant exception, said defendant county officials were 'opposing parties' within the meaning of 12 O.S.1941 § 958, and without service of the case-made upon said parties, said cause could not be considered upon the issues presented in an attempted appeal by certain intervening taxpayers.

Tillman & Tillman, of Pawhuska, for plaintiffs in error.

Gray & Palmer, of Pawhuska, for defendants in error.

DAVISON Justice.

In September 1943 an election was held under the supervision of the county superintendent of public instruction of Osage county, Oklahoma, to determine whether a section of land referred to as the 'Tallant Area' which at that time was a part of school district No. 22, commonly known as the 'Nelagoney District' of said county, should be detached from said district and annexed by school district No. 29, commonly known as the 'Barnsdall District' of said county. The majority of the votes case at said election was in favor of the detachment and annexation, but an appeal was taken to the county superintendent. Said appeal was dismissed in November 1943, however, in an action filed in the district court of said county by the school board of district No. 29 and by the judgment entered therein, the county superintendent was directed to make the order of detachment and annexation. Accordingly, the county superintendent issued the order on January 14, 1944.

After said order had been complied with and both school districts had operated for more than a year with the Tallant area annexed to district No. 29, the present action was instituted in February, 1945 by the board of education of school district No. 22 against the board of education of school district No. 29 and three Osage county officials whose official capacity had necessitated their performance of duties in connection with the detachment and annexation.

In the plaintiff board's petition, it was asserted that the district court's order of November, 1943 was void because under the statutes of this state, there was no authority for the detachment of a part of one district and its annexation by another, as had been directed by and done pursuant to said order. The petition then set forth what the county superintendent, county treasurer, and county assessor (hereinafter referred to generally as 'the county officials') had and had not done in putting said order into effect and in addition to asking vacation of the previous court order of November, 1943, plaintiff prayed that the county superintendent be directed to vacate his allegedly void order of January, 1944, and make proper arrangements to see that school district No. 22 receive all school taxes from the Tallant area. Plaintiff also prayed that a writ of mandamus be issued to the county assessor requiring him to enter on his records the Tallant area as a part of school district No. 22 and all personal and intangible property located in said area as a part of the taxable property in said district. It also prayed that a writ of mandamus be issued to the county treasurer requiring him to pay to the plaintiff board all taxes derived from the Tallant area.

After the above named parties had joined the issues between themselves, there was filed in said action a pleading entitled an 'Intervention' on behalf of 'W. R Harden * * * L. L. Grubb and Jess Prisack et al.,' who represented themselves as citizens and taxpayers of school district No. 22 and school district No. 29. In said pleading it was alleged that the subject matter of the action was moot as no appeal had ever been taken from the court order sought to be vacated and no petition to vacate it had ever been filed; that the county superintendent's order of January 1944 and its operation since that time had been acquiesced in and pursuant thereto taxes have been paid on property within the Tallant area to provide educational facilities for 'some 34 school children' from that area and a large sum of money, including state aid and other income by reason of the enumeration of pupils in said area had been collected as a result thereof. It was further alleged that if the relief sought by plaintiff was granted, intervenors would suffer great and irreparable damage; that 'some 34 children' of the Tallant area would be compelled to travel 28 miles in going to and from the school in district No. 22, whose facilities were inferior to those of the district No. 29 schools, or to pay tuition to attend the latter schools which were a round trip distance of only six miles from the Tallant area. It was further alleged that a certain levy had been made by a majority of the voters in school district No. 29 for the purpose of erecting a new school building for said district; that no taxpayer had filed any protest to said building fund levy; that said levy had been approved by the county excise board and had become a fixed and final levy.

It was asserted that in view of the circumstances, it would be unjust and inequitable for the court to grant the relief plaintiff prayed for and thus overthrow said levy under which intervenors had paid taxes for said building fund. Other allegations of the intervenors were that W. R. Harden, one of the intervenors, had been elected a...