Read v. Stephens

• Decision Date: 17 May 1948
• Docket Number: 8812.
• Citation: 193 P.2d 626,121 Mont. 508
• Parties: READ et al. v. STEPHENS et al., County Com'rs.
• Court: Montana Supreme Court

193 P.2d 626

121 Mont. 508

READ et al. v. STEPHENS et al., County Com'rs.

No. 8812.

Supreme Court of Montana

May 17, 1948

Appeal from District Court, Twelfth District, Blaine County; C. B Elwell, Judge.

Action by George Read and others, as resident taxpayers and electors of School District 15, against John H. Stephens and others as Commissioners in and for Blaine County, to set aside the order of the Board of County Commissioners vacating a prior order of the county superintendent of schools which denied the transfer of certain lands from District 15 to District 67, and for a restraining order. From a judgment sustaining the order of the Board of County Commissioners and dissolving a temporary restraining order, plaintiffs appeal.

Affirmed.

Burns & Thomas, of Chinook, for appellants.

Jess L Angstman, of Havre, for respondents.

GIBSON Justice.

July 22, 1946, the county superintendent of schools of Blaine county made an order declaring school district 34 of that county to be an abandoned district. This action was taken pursuant to the authority of section 970, Revised Codes of Montana 1935, as amended by Chapter 168, Session Laws of 1943. In the order the county superintendent transferred to school district 67 of that county nine sections of land that had been embraced in the abandoned district and placed the remainder and larger portion of the territory thereof in school district No. 15. Following this, on August 30, 1946, a petition of resident taxpayers and registered electors of that portion of school district 15 formerly embraced in school district 34, was filed with and addressed to the county superintendent of schools, asking that their lands in said territory be transferred from school district 15 to school district 67. A hearing was had thereon, after due notice given, and on October 9, 1946, the petition was denied by the county superintendent. From this order of denial the petitioners appealed to the board of county commissioners of Blaine county and a hearing upon the appeal was held by the board on November 30, 1946, taken under advisement, and by decision of the board on January 6, 1947, the order of the county superintendent of schools denying the transfer of petitioners' lands to district 67 was set aside, and the territory described in the petition was ordered taken from school district 15 and placed within school district 67.

This action was then brought by appellants, who are resident taxpayers and electors of school district 15 and parents of school children within said district, to set aside the order of the board of county commissioners and to restrain the enforcement thereof pending the action. This, upon the ground that the board's action was arbitrary and not supported by the evidence.

The trial of the action in the district court resulted in findings in favor of the respondents, that the board did not act arbitrarily or in disregard of the evidence, and that evidence was adduced on the appeal to justify the board's decision and order. Judgment that the decision and order of the board of county commissioners was valid and lawful was by the court made and entered, and the temporary restraining order enjoining defendants from enforcing said order of the board was dissolved. This appeal is from said judgment.

A transcript of the proceedings before the board of county commissioners was received in evidence in the district court, from which it appears that testimony of witnesses both for and against the petition for transfer of the territory, and evidence as to the financial condition of the school districts involved was received. The evidence before the board showed that at the time of the hearing there were no children of school age within the area sought to be transferred, although shortly prior there were three children of school age in the area; that in that portion of district 15 in which appellants reside there were five children of school age; that before the territory from abandoned district 34 was transferred to district 15, one school was maintained in the latter district, but after the addition of the territory to district 15, it maintained two schools, the second school near where appellants reside. These schools are about eight miles apart but neither of them are within the territory gained by district 15 from the abandoned district 34. This added territory is the area which the residents, taxpayers and electors therein petitioned for transfer to district 67. A range of mountains or high divide separates this area sought to be transferred to district 67 from the rest of district 15 and from both schools of the latter district. This high divide renders direct travel between the area formerly in district 34 and the schools in district 15 impossible or at least impracticable. Persons living in that area in order to reach school in district 15 must travel across a part of district 67 and past a school in district 67 an additional ten miles to reach a school in district 15. This area sought to be transferred is within the same valley in which district 67 lies and in which is situated the school in that district, and travel and communication between the area and the school in district 67 is usual and practical.

At the time of the hearing before the board November 30, 1946, the second school in district 15 was closed because of bad weather.

The evidence further showed that the taxable valuation, that is to say the percentage of the assessed valuation upon which taxes are levied and computed, of district 15 before the addition thereto of the territory from district 34, was $122,155; that the taxable valuation of district No. 67 was $97,994; that after the territory from abandoned district 34 was added to district 15, the taxable valuation of that district was $199,892. Following the abandonment of district 34 and the transfer of territory therefrom, a...