Nicklaus v. Goodspeed

• Decision Date: 19 April 1910
• Citation: 56 Or. 184,108 P. 135
• Parties: NICKLAUS v. GOODSPEED, County Judge, et al.
• Court: Oregon Supreme Court

108 P. 135

56 Or. 184

NICKLAUS v. GOODSPEED, County Judge, et al.

Supreme Court of Oregon

April 19, 1910

Appeal from Circuit Court, Tillamook County; Geo. H. Burnett, Judge.

Petition by Jacob Nicklaus for writ of review against H.F. Goodspeed County Judge, and others. From an order dismissing the writ plaintiff appeals. Reversed.

On December 20, 1907, there was filed in the office of the county school superintendent of Tillamook county two petitions, identical in language and purport, signed by the legal voters for school purposes in school districts Nos. 32 and 50, respectively, praying for a change in the boundaries of those districts, so as to include a portion of district No. 50 within the boundaries of district No. 32. On December 21, 1907, there was issued from the office of the county school superintendent notices of such proposed change signed by him, which were posted as required by law, and on the 3d day of January, 1908, an affidavit was filed by W.D Gladwill, showing the proper posting of the notices, but not stating that he was authorized by the superintendent to perform such duty. On January 4, 1908, the district boundary board being in session, the appellant and one Jacob Kumm appeared before the board and objected to the proposed change, and moved to dismiss the petition upon two grounds (1) Because the proposed change would leave district No. 50 with only four children of school age, which would result in a disorganization of the district; and (2) because sufficient proof of posting notices of the proposed change had not been made. The board disregarded the motion, and made the change conformably to the petitions. Plaintiff sued out a writ of review to the circuit court, and from an order dismissing the writ he appeals to this court.

Talmage & Johnson, for appellant.

W.H. Cooper, for respondents.

McBRIDE J. (after stating the facts as above).

The objection to the proof of posting notices of the proposed change is untenable. Section 3365, B. & C. Comp., as amended by Sess.Laws 1903, p. 125, provides that the district boundary board may "at its discretion, upon petition of three or more legal voters interested, change or divide the districts of its county;" and the same section, as amended, provides that the superintendent "shall cause to be posted," etc., notices for the proposed change. The notices posted, as shown by the record, were signed by the superintendent. The affidavit of posting was filed in his office and he is ex officio a member and secretary of the district boundary board. When he presented these notices and the proof of posting them, the board had sufficient evidence to justify it in finding that he had caused them to be posted, especially in the absence of any statute expressly requiring such proof to be made in any particular manner, or, indeed, at all.

The second objection is more serious, and for a proper understanding of the matters involved it will be necessary to consider certain provisions of the statute: (1) The county school superintendent and the county judge and commissioners...