Hobart v. Board of Ed. of Unified School Dist. No. 309

• Decision Date: 23 October 1981
• Docket Number: No. 53367,No. 309,309,53367
• Parties: Nelson HOBART, Appellant, v. BOARD OF EDUCATION OF UNIFIED SCHOOL DISTRICT; Randy Ball; Myron G. Hermes; Cliff Lambert; Rae Luginsland; Farrell Saxton; Earle Smith; and Harold Stauffer, each individually and as members of the Board of Education of Unified School District # 309; and William E. White, individually and as Superintendent of Unified School District # 309; and Glenis L. Heldenbrand, Reno County Clerk/Election Officer, Appellees.
• Court: Kansas Supreme Court

Page 1088

634 P.2d 1088

230 Kan. 375

Nelson HOBART, Appellant, v. BOARD OF EDUCATION OF UNIFIED SCHOOL DISTRICT No. 309; Randy Ball; Myron G. Hermes; Cliff Lambert; Rae Luginsland Farrell Saxton; Earle Smith; and Harold Stauffer, each individually and as members of the Board of Education of Unified School District # 309; and William E. White individually and as Superintendent of Unified School District # 309; and Glenis L. Heldenbrand, Reno County Clerk/Election Officer, Appellees.

No. 53367.

Supreme Court of Kansas.

Oct. 23, 1981.

Syllabus by the Court

1. Under K.S.A. 72-8213 (e) no consent or affirmative vote of electors is required to reduce grade usage so long as the board offers at least three (3) high school grades, or three (3) junior high school grades, or six (6) elementary school grades in the attendance facilities of the disorganized and merged districts. However, before a board may close such an attendance facility and before a board may reduce the grade usage to less than the number of grades specified in subsection (e) it must have the affirmative vote or consent of a majority of the resident electors in the territory located in the disorganized district.

2. School districts and other subdivisions of the state have only such powers as are conferred upon them by statute, specifically or by clear implication, and any reasonable doubt as to the existence of such power should be resolved against its existence.

3. When the legislature authorizes a school board to hold an election under K.S.A. 72-8213 and on an affirmative vote of a majority of electors reduce the grade usage at an attendance facility to zero, thus closing the facility, there appears a clear implication of authority to call an election to obtain from the electors consent to reduce grade usage to be offered at the facility to less than six elementary grades without closing the facility completely.

H. Newlin Reynolds, of Hodge, Reynolds, Smith, Peirce & Forker, Hutchinson, for appellant.

Michael E. Chalfant, of Branine, Chalfant & Hyter, Hutchinson, for appellees.

FROMME, Justice:

This action was brought in the court below to enjoin the Board of Unified School District No. 309, Reno County, from holding an election. The election had been called to determine whether the Board should have the authority to reduce the grade usage at an attendance facility from six elementary grades to just two elementary grades. The term "attendance facility" is defined in K.S.A. 72-8213 to mean a school building which has been the property of a school district disorganized and made a part of a unified district.

The parties stipulated to the following facts at the trial level:

"1. That Unified School District # 309 was organized under the Kansas School Unification Act on or before July 1, 1965.

"2. That prior to the unification, Mitchell Grade School was operated by Grade School District # 2C.

"3. That Grade School District # 2C was disorganized after Unified School District # 309 was organized, and the entire territory of former Grade School District # 2C was incorporated in and became a part of Unified School District # 309, all pursuant to Kansas School Unification Act, Chapter 393, of the Session Laws of Kansas, 1963, as amended and supplemented by House Bill # 539 of the 1965 session of the legislature.

"4. That after such unification of Mitchell Grade School into Unified School District # 309, it was thereafter known as Disorganized School District # 2C. Said Disorganized School District # 2C continued to be operated as a grade school. That during the school year of 1980-1981, Mitchell Grade School had grades of kindergarten and one, two, three, four and five. That grade six attended North Reno School located in Unified School District # 309.

"5. On May 11, 1981, the Board of Education of Unified School District # 309 consisted of the following board members:

"Randy Ball, Myron Hermes, Cliff Lambert, Rae Luginsland, Farrell Saxton, Earle Smith, and Harold Stauffer.

"6. That on May 11, 1981, at an official Board of Education meeting of Unified School District # 309, all of said board members unanimously voted in favor of the following resolution:

"BE IT RESOLVED by the Board of Education of United School District # 309, Reno County, State of Kansas, that the Reno County election officer is authorized to conduct an election of the resident electors of Disorganized School District 2C who reside in Unified School District # 309, on the 16th day of June, 1981, from 7:00 A.M. to 7:00 P.M., for the purpose of voting to determine if the Board of Education of Unified School District # 309 shall be granted the authority to change the use of the attendance facility (school building) of Disorganized School District # 2C, commonly known as Mitchell Grade School, Reno County, State of Kansas, to permit its use by less than six (6) elementary school grades in compliance with the provisions of K.S.A. 72-8213.

"7. That pursuant to said resolution, the Reno County election officer, who is Glenis L. Heldenbrand, is making preparations to conduct an election of the resident electors of Disorganized School District # 2C who reside in School District # 309 on June 16, 1981, from 7:00 A.M. to 7:00 P.M., for the purpose of voting on the above resolution.

"8. That according to the official minutes of the meeting of the Board of Education of Unified School District # 309 held on May 11, 1981, it was proposed that if the class reorganization election passes, there will be three classes of Grade One and two classes of grade Two offered at Mitchell School.

"9. That Nelson Hobart, plaintiff herein, is a resident elector of Disorganized School District # 2C."

The trial court considered this stipulation of facts, together with the briefs of counsel, and denied the request for an injunction. It held that an election in such case was not only permissible but mandatory under the provisions of K.S.A. 72-8213, which statute relates to the closing and changing of the grade usage of schools. Plaintiff's appeal was filed in the Court of Appeals and then transferred to this court for decision.

The issue presented is whether the School Board of the unified district under the stipulated facts of this case has the authority to call an election to change and reduce the grade usage at the attendance facility known as Mitchell Grade School. The Board proposes to reduce the grade usage at the facility from six elementary grades to two elementary grades. The answer to this question depends upon a construction of K.S.A. 72-8213 which in pertinent part provides:

"(a) The board shall not close any attendance facility that was being operated at the time the unified district was organized if at least three-fourths (3/4) of the territory and at least three-fourths (3/4) of the taxable tangible valuation of the district which formerly owned such building is included in such unified district unless and until a majority of the resident electors within the attendance center of such attendance facility shall give their consent thereto. Such consent may be given in writing in the form of a petition, or the board may submit the question to a vote of such resident electors in the attendance center at an election which shall be conducted in the same manner as for approval of bonds of the unified district. If a majority of those voting on the question vote in favor thereof, the same shall constitute consent for the purpose of this section. The board may close any attendance facility at any time except as is otherwise provided in this act. For the purpose of this section the following terms shall have the following meanings: The term 'attendance facility' means a school building which has been property of (a) school district disorganized pursuant to this act, but which, at the time under consideration, is owned by the unified district. The term 'attendance center' means the area around an attendance facility consisting of the territory in such unified district of the disorganized district which formerly owned such attendance facility.

"Notwithstanding the other provisions of this act, the board of education of any unified school district may close any attendance facility which has failed to receive accreditation by the state superintendent of public instruction until that office is abolished or the state board of education thereafter, and in any such case no petition, election or other procedures shall be necessary as a condition to such closing.

"(b) The board of any city unified school district which such city has a population in excess of 20,000 may close any of its attendance facilities at any time such board finds the same should be closed to improve the school system of such school district. The limitations of subsection (a) of this section shall not apply to any closing under this subsection (b).

"(c) (Not pertinent.)

"(d) In the event any territory has been or is hereafter attached or transferred to any unified school district by attachment or transfer proceedings other than a signed agreement under K.S.A. 72-7108 or upon petition therefor of such a unified school district under said statute, any attendance facility in the territory so attached or transferred may be closed by the board and no limitations of subsection (a) shall apply to any such closing.

"(e) Nothing in this section shall be deemed to restrict or limit the authority of any board to change the use of any attendance facility, so long as at least three (3) high-school grades, three (3) junior high-school grades, or six (6) elementary school grades are offered in such attendance facility.

"(f) (Not pertinent.)" Emphasis supplied.

Subsections (g) and (h) of this statute need not be quoted. They relate to attendance facilities ordered unsafe by the State Fire Marshal. After such an order is issued the board may close the attendance facility if the board finds that the cost of the restoration, repair or...