Roy v. Bladen School Dist. No. R-31 of Webster County

• Decision Date: 12 July 1957
• Docket Number: No. 34194,R-31,34194
• Citation: 84 N.W.2d 119,165 Neb. 170
• Parties: In re Freeholders'Petition of Rose ROY, Wilella Wilson, Rudolph Betz, et al., Appellees, v. BLADEN SCHOOL DISTRICT NO.OF WEBSTER COUNTY, Nebraska, Appellant.
• Court: Nebraska Supreme Court

Page 119

84 N.W.2d 119

165 Neb. 170

In re Freeholders'Petition of Rose ROY, Wilella Wilson, Rudolph Betz, et al., Appellees, v. BLADEN SCHOOL DISTRICT NO. R-31 OF WEBSTER COUNTY, Nebraska, Appellant.

No. 34194.

Supreme Court of Nebraska.

July 12, 1957.

Syllabus by the Court.

1. In construing a statute, the court must look to the object to be accomplished, the evils and mischief sought to be remedied, or the purpose to be subserved, and place on it a reasonable or liberal construction which will best effect its purpose rather than one which will defeat it.

2. In enacting a statute, the Legislature must be presumed to have had in mind all previous legislation upon the subject. In the construction of a statute courts must consider the preexisting law and any other laws relating to the same subject.

3. Where the general intent of the Legislature may be readily ascertained, yet the language used in a statute gives room for doubt or uncertainty as to its application, courts may resort to historical facts or general information to aid them in interpreting its provisions.

4. In general, the word 'may,' used in statutes, will be given ordinary meaning, unless it would manifestly defeat the object of the statute, and when used in a statute is permissive, discretionary, and not mandatory.

5. The personnel of the board created by section 79-403, R.S.Supp., 1955, is not a test of the judicial power of courts to review orders made by it, but rather the nature of the power exercised by that board.

6. The nature of an action, whether legal or equitable, is determinable from its main object as disclosed by the averments of the pleading and the relief sought.

7. The action of the board under section 79-403, R.S.Supp., 1955, is the exercise of a quasi-judicial power, equitable in character, and upon appeal therefrom to the district court the cause is triable de novo as though it had been originally instituted in such court, and upon appeal from the district court to this court it is triable de novo as in any other equitable action.

8. By the enactment of section 79-403, R.S.Supp., 1955, authorizing the board to set off land from one school district and attach it to an adjoining district, whenever after public hearing it deems it just and proper and for the best interests of the petitioner or petitioners so to do, the intention of the Legislature was that the board in making such determination should predicate it upon educative interest of the petitioner or petitioners and not on their mere personal preference based upon noneducational reasons.

Richard A. Dier, Kearney, for appellant.

Wm. H. Meier, Minden, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Thirteen named freeholders, who severally owned 16 described quarter sections of farm lands located in reorganized Bladen school district No. R-31 of Webster County, originally filed a petition with a board consisting of the county superintendents, county clerks, and county treasurers of Webster and Franklin Counties, seeking under section 79-403, R.S.Supp., 1955, to have certain lands set off from the Bladen district and attached to reorganized Campbell school district No. R-13 of Franklin County. After due notice and hearing by such board, it failed to agree, and the freeholders, hereinafter called plaintiffs or designated by name, appealed to the district court. Hereinafter the Bladen school district will be called defendant or Bladen district, and Campbell school district will be called Campbell district.

Plaintiffs' 'In Equity Petition on Appeal,' first described the lands respectively owned by each plaintiff in the Bladen district; and then alleged that said lands adjoin Campbell district, that the territory proposed to be attached has children of school age residing thereon with their parents or guardians, and that said children are each more than 2 miles from the Bladen schoolhouse and at least 1/2 mile nearer the Campbell schoolhouse, measured by the shortest route possible on section lines or traveled roads open to the public. The reasons alleged by plaintiffs in their petition for the proposed change were that: (1) Their described real estate was closer to the Campbell schoolhouse than it was to the Bladen schoolhouse; (2) that said real estate was within the trading area of Campbell and not within that of Bladen; and (3) that plaintiffs and occupants of said real estate prefer the town of Campbell and the Campbell school over any other town or school, and desire to have their children, residing on or who may hereafter reside thereon, attend Campbell school. After reciting the procedure which had been had before the board and its failure to agree, about which there is no dispute, plaintiffs incorporated their original petition in their petition on appeal and alleged that it was just and proper and for the best interests of petitioners that said lands be transferred from Bladen district to Campbell district. They prayed for such judgment and equitable relief.

Defendant's answer alleged that plaintiffs' described lands were located in the Bladen district, which has been a reorganized and consolidated Class II school district for more than a year prior to the filing of plaintiffs' petition, and is and has been operating as such since June 1954; and that Bladen district has installed and operated school bus transportation service to Bladen schools since its reorganization and has offered and continues to offer such services to any and all school-age children residing on all the lands described in plaintiffs' petition which were legally included in Bladen's reorganized school plan by more than 70 percent petitions of former rural districts Nos. 59 and 38. Defendant then denied generally and prayed for denial of plaintiffs' petition and costs. Plaintiffs' reply thereto denied generally.

Requests for admissions were filed by both plaintiffs and defendant, and answers thereto were respectively filed. Subsequently, plaintiffs' motion for summary judgment was overruled, and after hearing on the merits, judgment was rendered which set off from Bladen district five described quarter sections of land upon which children of school age resided, and attached them to Campbell district, but refused to so set off other described lands as sought by plaintiffs, and ordered each party to pay his own costs. Thereafter, motions for new trial filed by both plaintiffs and defendant were overruled.

Therefrom defendant appealed to this court, assigning some eight alleged errors, the effect of which was to assert, insofar as important here, that the judgment was not sustained by the evidence but was contrary thereto and contrary to law. We sustain those assignments. On the other hand, plaintiffs cross-appealed, assigning in effect, so far as important here, that the trial court erroneously construed and applied the statute and erred in refusing to find and adjudge that it was just and proper and for the best interests of plaintiffs to set off all the lands described in plaintiffs' petition from Bladen district and attach them to Campbell district. We conclude that plaintiffs' cross-petition has no merit because the trial court erred in setting off any of plaintiffs' described lands from Bladen district and attaching them to Campbell district.

As summarized, the record discloses the following situation: Plaintiffs' lands are all located in Bladen district and generally extend along the western border thereof to its southern line. From north to south such lands include all of Section 27, and three quarter sections in Section 34, all in Township 4 North, Range 12 West of the 6th P.M.: and all of Section 3, three quarter sections in Section 10, and the west half Section 15, all in Township 3 North, Range 12 West of the 6th P.M. The west border of such sections adjoins the Campbell district's east border.

Mrs. Irvin L'Heureux owns the east half of Section 27, which does not adjoin Campbell, and no children of school age reside thereon. Mrs. L'Heureux and her husband, Joe H. L'Heureux, live in the town of Campbell. He owns the southwest quarter of Section 10 which adjoins Campbell district, but no children of school age reside thereon.

Henry Eckhardt owns the west half of Section 27, and the northwest quarter of Section 34, which adjoin Campbell district. He lives on the southwest quarter of Section 27, and one grandson of school age resides thereon with him.

Charles P. Kral and Mrs. P. Kral own the southeast quarter of Section 34 and the northeast quarter of Section 3, which do not adjoin Campbell district, and no children of school age reside thereon.

Anna Kuhlman owns the southwest quarter of Section 34 which adjoins Campbell district, and two children of school age reside thereon.

Rose Roy owns the northwest quarter of Section 3 which adjoins Campbell district, and one child of school age resides thereon.

Ben H. Wessels and Emma Wessels own the south half of Section 3, the west half of which adjoins Campbell, but no children of school age reside on their land.

Rudolph Betz and Mrs. Rudolph Betz own the northeast quarter of Section 10, which does not adjoin Campbell district but has one child of school age residing thereon.

When this proceeding was filed, Wilella Wilson owned the west half of Section 15, which adjoins Campbell district. Since that time, however, Ardner Hanson has purchased the southwest quarter, where he resides with four children of school age, and he rents the northwest quarter of Section 15.

Concededly, plaintiffs' lands were each more than 2 miles from both the Bladen and Campbell schoolhouses, and at least 1/2 mile or more nearer the Campbell schoolhouse than the Bladen schoolhouse, but as hereinafter observed, that fact was not controlling as a reason for granting the relief sought by plaintiffs.

As shown by evidence adduced in plaintiff's behalf, the reasons...