Longe v. Wayne County

• Decision Date: 19 April 1963
• Docket Number: No. 60-R,No. 35381,No. 42,42,60-R,35381
• Parties: August LONGE, a resident elector and taxpayer of School Districtof Wayne County, Nebraska (or a resident elector and taxpayer of School Districtof Dixon County, Wayne and Thurston Counties, Nebraska) in his own right and on behalf of all persons similarly situated who wish to join in this petition, Appellant, v. The COUNTY OF WAYNE et al., Appellees.
• Court: Nebraska Supreme Court

Page 196

121 N.W.2d 196

175 Neb. 245

August LONGE, a resident elector and taxpayer of School District No. 42 of Wayne County, Nebraska (or a resident elector and taxpayer of School District No. 60-R of Dixon County, Wayne and Thurston Counties, Nebraska) in his own right and on behalf of all persons similarly situated who wish to join in this petition, Appellant, v. The COUNTY OF WAYNE et al., Appellees.

No. 35381.

Supreme Court of Nebraska.

April 19, 1963.

Syllabus by the Court

1. It is only when a tribunal acts judicially that a review by error proceedings is allowed under section 25-1901, R.R.S.1943.

2. Section 79-426.17, R.R.S.1943, is mandatory upon the county superintendent of schools and his actions in carrying out the expressed decision of the electors is ministerial only.

3. The special election authorized by section 79-426.15, R.R.S.1943, is governed by the general election laws and is subject to the contests provided in section 32-1001, R.R.S.1943.

4. The statute has provided an adequate remedy for the settlement of the rights of parties in election cases by either contest or quo warranto and these remedies are exclusive.

B. B. Bornhoft, Wayne, for appellent.

Charles E. McDermott, Wayne, C. Merle Kingsbury, Ponca, Ronald K. Samuelson, Pender, Harry N. Larson, Wakefield, for appellees.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

BROWER, Justice.

August Longe, the appellant, brought this action by petition in error in the district court for Dixon County, Nebraska, seeking to attack the reorganization and consolidation of 15 school districts in the Wakefield area into one district known as School District No. 60-R of Dixon, Wayne, and Thurston Counties.

The defendants in error and appellees herein are very numerous and include the three counties of Wayne, Dixon, and Thurston; the county superintendents, assessors, treasurers, and county clerks of each of said counties; the special committee for reorganization of school districts for Wayne, Dixon, and Thurston Counties, hereinafter called the special committee; the Dixon County Committee for reorganization of school districts, hereinafter called the county committee; the members of each of said committees; and all the 15 school districts involved in the reorganization, as well as the new district formed by the consolidation.

The consolidation was undertaken by the election method under the Reorganization of School Districts Act, sections 79-426.01 to 79-426.19, R.R.S.1943. Territory in the three counties being involved, the plan of reorganization, known as the Wakefield Plan of Reorganization, was prepared by a special committee composed of members from each of the three counties of Dixon, Wayne, and Thurston, as provided in section 79-426.09, R.R.S.1943. It will hereafter be referred to as 'the plan.'

The plan was prepared and adopted after meetings of the special committee, including two public hearings thereon. It was then submitted to the State Committee for Reorganization of School Districts, which reviewed and approved it on April 12, 1961, and advised the special committee that it be submitted to the electors of the proposed district. The county committee of Dixon County, because that county appears to be the one in which the largest number of electors reside, proceeded to call and hold an election, pursuant to subsection (4) of section 79-426.15, R.R.S.1943.

The election was held on June 13, 1961, at which time the plan was approved by a majority of all electors voting in the Class I districts by a vote of 200 in favor of the proposition and 181 against it. It was likewise approved by the Class III district, including the city of Wakefield, by a vote of 359 in favor and 133 against the proposition. The canvassing board certified to the result of the election on June 16, 1961, as required by section 32-496, R.R.S.1943.

Thereafter, pursuant to section 79-426.17, R.R.S.1943, the county superintendents of the three counties, on June 28, 1961, joined in one certificate or order showing the changes of the school districts involved and the realignment and adjustment thereof. The certificate was directed to the several county clerks, assessors, and treasurers of the three counties involved. It set out the districts which were reorganized and the boundaries of the new district created by the consolidation.

On July 24, 1961, the appellant, a resident elector and taxpayer of one of the Class I school districts, reorganized with the other district to form School District No. 60-R of the said three counties, brought this error proceeding on behalf of himself and all others similarly situated.

The cause was tried on the petition of appellant, the appellees' answers thereto, and the appellant's replies. On August 7, 1962, the district court rendered its judgment dismissing the petition. In the journal of judgment the district court held against the appellant, both upon the merits and upon procedural grounds. It held the reorganization proceedings were free from fatal defects and that a petition in error was not the proper remedy to challenge the election and the proceedings prior thereto.

A motion for new trial having been overruled, appellant brings the cause to this court by appeal.

The appellant contends the trial court erred in holding that the order or certificate of the county superintendents realigning and adjusting the district, as provided in section 79-426.17, R.R.S.1943, was a ministerial instead of a judicial function and as such not reviewable in error proceedings. There were numerous other assignments of error but they refer to the proceedings of the special committee or the county committee, and in view of our decision are not required to be considered.

Appellant contends that under the holdings of this court the order realigning and adjusting the school districts made by the three county superintendents, on June 28, 1961, was reviewable by error proceedings under section 25-1901, R.R.S.1943. He cites as authority for this proposition Olsen v. Grosshans, 160 Neb. 543, 71 N.W.2d 90; Keedy v. Reid, 165 Neb. 519, 86 N.W.2d 370; School Dist. No. 49 of Merrick County v. Kreidler, 165 Neb. 761, 87 N.W.2d 429; and Dovel v. School Dist. No. 23, 166 Neb. 548, 90 N.W.2d 58. It is to be noted that all of the cited cases were brought to review, in error proceedings, decisions of the county superintendent made under the petition method of reorganization set out in section 79-402, R.S.Supp., 1961.

In the petition method of proceeding, the petitions of the electors are presented to the county superintendent or superintendents of schools of the county or counties involved with sworn lists of...