Rasure v. Sparks

• Decision Date: 22 July 1919
• Docket Number: 10556.
• Citation: 183 P. 495,75 Okla. 181,1919 OK 231
• Parties: RASURE, County Superintendent of Public Instruction, v. SPARKS et al.
• Court: Oklahoma Supreme Court

183 P. 495

75 Okla. 181, 1919 OK 231

RASURE, County Superintendent of Public Instruction, v. SPARKS et al.

No. 10556.

Supreme Court of Oklahoma

July 22, 1919

Rehearing Denied Sept. 9, 1919.

Syllabus by the Court.

Where in a proceeding for the dissolution of a consolidated school district, authorized and provided for by chapter 202, Laws 1915, a petition is filed purporting to contain the signatures of one-half or more of the legal voters of the consolidated school district, asking that the county superintendent of public instruction call an election "for the purpose of voting on the question of whether such consolidated school district shall be dissolved," and which petition is accepted as sufficient by such school superintendent, and an election is duly called and held, at which 60 per cent. of the voters of the consolidated district, voting thereat, vote in favor of dissolution, and the proper officer of such special election makes report of the election and the result thereof to the county superintendent, who refuses to discharge the duties imposed in section 2 of the act, such superintendent will not be permitted, in a mandamus action to compel the performance of his statutory duties, to attack the sufficiency of the petition or the qualifications of the voters at the election the proceedings had being regular on their face and constituting a prima facie compliance with the statute.

The duties imposed upon a county superintendent by section 2, c 202, Laws 1915, in respect to declaring a consolidated school district dissolved, and the filling of vacancies in the "revived" school districts, involve the exercise of no discretion on the part of such superintendent, but are purely ministerial in their character, and their performance may be compelled by mandamus.

Section 2, c. 202, Laws 1915, providing that "if sixty (60) per cent. of the voters of such district at the election held *** shall vote to dissolve the consolidated district," etc requires only that 60 per cent. of the votes cast at the election shall be in favor of dissolution, and not that 60 per cent. of all the voters of the district shall vote therefor.

It being the duty of the Attorney General, under section 8059, Rev. Laws, to give his opinion in writing, when requested, "upon all questions of law submitted to him by *** any state official, commission or department," such advice, when obtained by the state superintendent of public instruction for and at the instance of a county superintendent, respecting the discharge of the latter's official duties, should be followed.

Error from District Court, Caddo County; Will Linn, Judge.

Mandamus by R. D. Sparks and others against C. W. Rasure, County Superintendent of Public Instruction, Caddo County. From a judgment granting a peremptory writ of mandamus, defendant brings error. Affirmed.

Gasper Edwards, of Oklahoma City, for plaintiff in error.

Bond, Melton & Melton, of Chickasha, for defendants in error.

SHARP J.

On October 8, 1918, there was presented to C. W. Rasure, county superintendent of public instruction of Caddo county, addressed to him, a petition in due form, which on its face purported to bear the signatures of 177 legal voters of consolidated school district No. 22, Caddo county, asking that he call an election or meeting for the purpose of determining whether or not the consolidated district should be dissolved. Acting upon such petition, the county superintendent duly called an election, whereby there was submitted to the voters of the consolidated school district the question of the dissolution thereof. At the election so held 222 votes were cast, 140 in favor of, and 82 against, dissolution. On the same day the election officers of the consolidated district reported in writing to the county superintendent that the election had been held and the number of votes for and against the issue of dissolution. Notwithstanding the result of the election, and the due certification thereof, the county superintendent refused to declare the consolidated district dissolved, and to appoint school board officers in district No. 153, one of the school districts located within the consolidated district. Mandamus proceedings were thereupon begun by Sparks, Klumpp, and Kirk, resident taxpayers and patrons of school district No. 153, to compel the issuance of a proclamation declaring the consolidated district dissolved and to appoint a school board in school district No. 153. The petition in substance alleges the facts above set forth.

The answer does not put in issue, but in effect admits, the presentation of the petition purporting to bear the signatures of one-half of the legal voters of the district, pursuant to which a call for an election was made. But it was charged in effect that, after the election was called, four affidavits were filed in the office of the superintendent to the effect that the district contained in fact 385 legal voters, and that, in reliance upon the proof submitted tending to show that the petition was insufficient, in that it did not bear the requisite number of signers, and that 60 per cent. of all of the legal voters of the consolidated district did not vote in favor of dissolution, and because "the day on which such purported election was held was a very rainy, stormy, and muddy day, and that the epidemic known as the 'Flu' was quite prevalent in said district, all of which prevented a full vote on the question of dissolution," respondent had refused to act. Notwithstanding the action was for mandamus to compel the defendant, as a public official, to discharge a purely ministerial duty, it seems that the trial court permitted him to introduce a great number of witnesses upon the question of whether certain of the petitioners were qualified voters, and upon the further question of the number of qualified voters in the consolidated district. The result of this indulgence was a judgment against the respondent; the court finding that the petition was signed by more than one-half of the legal voters of the consolidated district, and that at the election held more than three-fifths of the voters, voting at such election, voted in favor of dissolution.

The statute, pursuant to which the proceedings for the dissolution of the consolidated district were held, is found in sections 1 and 2, chapter 202, Laws 1915, wherein it is provided that the county superintendent of public instruction may, upon petition of one-half of the legal voters of any consolidated school district, call an election at some convenient place in such consolidated school district, for the purpose of "voting on the question whether such consolidated school district shall be dissolved." Notice of the election is required to be given by written or printed notices posted in at least five public places in the consolidated district at least 10 days prior to the election. If 60 per cent. of the voters of such consolidated district at the election shall vote to dissolve the consolidated school district, the clerk of said special election shall report such fact to the county superintendent of public instruction, who shall thereupon declare such consolidated school district dissolved, and that the original school districts which had united in forming the consolidated district "will thereupon be revived, and it shall be the duty of said county superintendent to appoint persons to fill all vacancies in the school boards for each of the school districts, who shall serve for the respective terms as other like officers in other school districts." It will thus be seen that it is the duty of the county superintendent, when the issue submitted is carried by the requisite vote and report thereof is made, to declare the consolidated district dissolved, and to appoint members of the school board to fill vacancies in the respective school districts theretofore contained within the consolidated district. This duty involves no exercise of discretion on the part of the county superintendent, but is purely ministerial. The duty is one enjoined by statute upon a public official to put into effect and consummate the wishes of the voters, as expressed by them at an election publicly held. The statute does not give to the county superintendent the right to nullify the result of such an election, on the ground that in the opinion of the county superintendent "it would be better to retain the district as consolidated." No such autocratic or arbitrary power is conferred upon the county superintendent by the governing statute. The duty enjoined is imperative, as was the case in Jordan v. Davis, 10 Okl. 329, 61 P. 1063, wherein Chief Justice Burford said, referring to section 5820, St. 1893:

"It was not intended by the Legislature to vest the officer with any arbitrary power of refusal, nor with a mere discretionary power to be exercised according to his whims or inclinations."

That mandamus is a proper remedy, and will lie in such cases, is well established in this jurisdiction. Territory ex rel Jones, County Attorney, v. Hopkins, Auditor, 9 Okl. 133, 59 P. 976; Davis, County Judge, v. Caruthers, District Judge, 22 Okl. 323, 97 P. 581; Smock v. Farmers' Union State Bank, 22 Okl. 825, 98 P. 945; Threadgill v. Cross, Secretary of State, 26 Okl. 403, 109 P. 558, 138 Am. St. Rep. 964; Norris v. Cross, Secretary of State, 25 Okl. 287, 105 P. 1000; State ex rel. Freeling v. Lyon, Secretary of State, 165 P. 419. The case is one coming clearly within section 4907, Revised Laws, providing that the writ of mandamus may be issued by the district court to any inferior tribunal, corporation, board, or person, to compel the performance of any act which the law specially enjoins as a duty resulting from an office, trust, or station. It is true...