Moser v. Turner

• Decision Date: 22 July 1966
• Docket Number: L,No. 11,36172,Nos. 36171,11,s. 36171
• Citation: Moser v. Turner, 144 N.W.2d 192, 180 Neb. 635 (Neb. 1966)
• Parties: Louis MOSER, in person and for all petitioning legal voters of School Districtancaster County, Nebraska, similarly situated, Appellees, v. Glenn E. TURNER, County Superintendent of Schools of Lancaster County, Nebraska et al., Appellants, Impleaded with Bernard J. Klasek, County Superintendent of Schools of Saline County, Nebraska, et al., Appellees. Harold BECK et al., Appellees, v. Glenn E. TURNER, County Superintendent of Schools of Lancaster County, Nebraska et al., Appellants, Impleaded with Bernard J. Klasek, County Superintendent of Schools of Saline County, Nebraska et al., Appellees.
• Court: Nebraska Supreme Court

Page 192

144 N.W.2d 192

180 Neb. 635

Louis MOSER, in person and for all petitioning legal voters of School District No. 11, Lancaster County, Nebraska, similarly situated, Appellees, v. Glenn E. TURNER, County Superintendent of Schools of Lancaster County, Nebraska et al., Appellants, Impleaded with Bernard J. Klasek, County Superintendent of Schools of Saline County, Nebraska, et al., Appellees.

Harold BECK et al., Appellees, v. Glenn E. TURNER, County Superintendent of Schools of Lancaster County, Nebraska et al., Appellants, Impleaded with Bernard J. Klasek, County Superintendent of Schools of Saline County, Nebraska et al., Appellees.

Nos. 36171, 36172.

Supreme Court of Nebraska.

July 22, 1966.

Syllabus by the Court

1. Any person adversely affected by the changes made by a county superintendent pursuant to section 79--402, R.S.Supp., 1965, may proceed by appeal or by error pursuant to section 25--1901, R.R.S.1943.

2. The county superintendents of the counties involved have the authority and jurisdiction when acting jointly and multilaterally to create new districts or change the boundaries of existing districts where territory lies in one or more counties under section 79--402, R.S.Supp., 1965.

3. Where a school district contains land in more than one county, section 79--426.05, R.S.Supp., 1965, provides that the county committee of the county in which the schoolhouse of the district lies is the only county committee that represents such district in a proceeding to change the boundaries thereof.

4. From the very nature of an error proceeding, the rights of the parties are determined by the appellate court solely on the record made by the tribunal whose action is being reviewed. No new facts or evidence can enter into the consideration of the court.

5. Fraud is never presumed but must be clearly proved by the party who pleads and relies on it.

Paul L. Douglas, County Atty., Floyd Sterns, Deputy County Atty., William D. Blue, Chief Deputy Co. Atty., Ronald D. Lahners, Walter D. Weaver, Janice L. Gradwohl, Deputy County Attys., William L. Walker, Earl Ludlam, Lincoln, for appellants.

Jerry L. Snyder, Lincoln, for appellees.

Heard before CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and SCHEELE, District Judge.

BROWER, Justice.

These two cases arise from multilateral hearings had before Bernard J. Klasek, county superintendent of schools of Saline County, Nebraska, referred to as Klasek, and Glenn E. Turner, county superintendent of schools of Lancaster County, designated hereafter as Turner.

Case No. 36171 involved action on a petition of the electors of School District No. 11 of Lancaster County and a petition of the school board of the city of Crete in Saline County, herein called the Crete district, which petitions sought to dissolve School District No. 11 and annex and attach its territory to the Crete district.

Case, No. 36172 involved similar petitions seeking the dissolution of School District No. 72, Lancaster County, and to annex and attach its territory to the same city school.

After several continuances, final hearings were held by the two county superintendents at Wilber, Nebraska, that concerning the annexation of School District No. 11 on February 18, 1964, and of School District No. 72 on February 20, 1964.

On February 25, 1964, Klasek signed orders granting the petitions and ordering the dissolution, annexation, and attaching of the two districts to the Crete district. On the same day Turner made his order denying the petitions in both cases.

Thereafter in case No. 36171, Louis Moser, a legal voter of School District No. 11, for himself and as a class action for all other legal voters similarly situated and who signed the petition for the dissolution and annexation of that district, filed a petition in error in the district court for Saline County, making the two county superintendents, the Crete district, certain named objectors, and all other objectors to the petition for the change of boundaries, parties.

In case No. 36172, Harold Beck, Adeline I. Jans, and Orval H. Jans, legal voters of School District No. 72, for themselves and as a class action, filed in the same court a similar petition in error against both superintendents, the Crete district, certain objectors named, and all other objectors to the change of boundaries School District No. 72.

Each petition alleged the order of Klasek was correct and not in error and the order of Turner was in error, and sought a reversal of the latter and the judgment of the court changing the boundaries and annexing the respective districts to the Crete district.

Each petition in error had attached thereto a transcript of the entire proceedings, including the final order in the respective cases, and filed with each was a bill of exceptions containing all the evidence produced at the hearing before the county superintendents which was thereafter admitted in evidence in each case is district court.

In each action the defendants, named as objectors, appeared for themselves and all other objectors similarly situated, and the other parties filed voluntary appearances or were served with summonses. Special demurrers were filed by the named objectors, and on being overruled, answers and cross-petitions were filed. The demurrers and answers properly raised the questions hereinafter discussed.

The parties will be designated here as plaintiffs and defendants.

Separate trials in district court each resulted in a judgment finding the trial court had jurisdiction of the subject matter; that Klasek's order of February 25, 1964 should be affirmed; that Turner's order of the same date should be reversed; that the school petitions in each instance were sufficient and valid; and that the territories of School Districts No. 11 and No. 72 of Lancaster County should be attached to the Crete district.

Defendants' motions for a new trial being overruled, the two cases have been brought by appeal to this court where they have been consolidated for briefing and argument.

The defendants have assigned 17 errors to the trial court, but many of them are not argued in their brief, and others are repetitious and are separately related successively to the various orders and rulings as well as the final judgment of the trial court. The questions necessary for our decision will be set out as discussed.

The defendants first contend that the trial court had no jurisdiction because proceedings in error cannot be taken from the decision of the county superintendent and that the sole method of review was by an appeal. The proceedings are based on section 79--402, R.S.Supp., 1965, which was last amended by Laws 1963, c. 472, s. 1, p. 1514, which became effective July 12, 1963, a short time before the petitions referred to in each action were circulated and completed. The amendment of 1963 provided, among other things, 'that any person adversely affected by the changes made by the county superintendent may Appeal to the district court of any county in which the real estate, or any part thereof, involved in the dispute is located.' (Italics supplied.) The method of appeal was not provided in section 79--402, R.S.Supp., 1965, but the Legislature had previously enacted L.B. 277, Laws 1963, c. 138, s. 1, p. 515, now section 25--1937, R.R.S.1943, providing that where a statute provides for an appeal without setting forth the procedure therefor, the appeal shall be the same as appeals from county court to district court in civil actions. This provision was not followed and the defendants assert it is now the exclusive remedy of those seeking a review of proceedings before a county superintendent. It is competent for the Legislature to prescribe whatever mode of procedure it may see fit for bringing judicial questions before the courts for determination or a multiplication of cumulative remedies. Tyson v. Washington County, 78 Neb. 211, 110 N.W. 634, 12 L.R.A.,N.S., 350; C.R.T. Corp. v. Board of Equalization, 172 Neb. 540, 110 N.W.2d 194. This court has repeatedly held that where the county superintendents of schools act in a quasi-judicial capacity, their decisions may be reviewed under section 25--1901, R.R.S.1943, by petition in error, some of the more recent cases being School Dist. No. 49 of Merrick County v. Kreidler, 165 Neb. 761, 87 N.W.2d 429; Lindgren v. School Dist. of Bridgeport, 170 Neb. 279, 102 N.W.2d 599. There is nothing in section 79--402, R.S.Supp., 1965, or in section 25--1937, R.R.S.1943, which purports to take away the right to proceed in error under section 25--1901, R.R.S.1943. Any person adversely affected by the changes made by a county superintendent pursuant to section 79--402, R.S.Supp., 1965, may proceed by appeal or by error pursuant to section 25--1901, R.R.S.1943. Defendants' contention has no merit.

Defendants next maintain that the county superintendents had no authority to hold hearings with respect to petitions to change the boundaries of school districts or the annexation of one district to another where the territory involved lies in more than one county. The first part of section 79--402, R.S.Supp., 1965, provides in part that: 'The county superintendent shall create a new district as hereinafter provided from other districts, or change the boundaries of any district upon petitions signed by sixty per cent of the legal voters of each district affected; * * *.' Defendants point out that the word 'superintendent' is in the singular. However, section 79--402, R.S.Supp., 1965, clearly indicates the Legislature intended to allow the legal voters the right to reorganize their school districts or change the boundaries thereof even though the proposed change involved territory in more than one county. This appears from the following portions of the section: 'Provided, that any person adversely affected by the changes made by the county superintendent may appeal to the district court of any county in which the real...