Ruwe v. School District No. 85 of Dodge County
| Decision Date | 06 February 1931 |
| Docket Number | 27507 |
| Citation | 234 N.W. 789,120 Neb. 668 |
| Parties | JOHN H. RUWE ET AL., APPELLEES, v. SCHOOL DISTRICT NO. 85 OF DODGE COUNTY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dodge county: FREDERICK L. SPEAR JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
A resident, elector and taxpayer may question the constitutionality of a statute the enforcement of which would detach territory from his school district and thus increase his taxes for school purposes.
Due process of law requires notice and an opportunity to be heard, where financial burdens are necessarily imposed on property owners by an exercise of judicial power pursuant to specific terms of a statute.
While the establishing of boundaries of school districts for school purposes is a legislative function, the legislature may confer on public boards or courts judicial power to determine the facts and equities under which legislation authorizes changes in such boundaries.
Legislation conferring on the county superintendent, county clerk and county board judicial power to change boundary lines between school districts without giving notice to those who would necessarily suffer a financial loss by the exercise of such power, and without giving them an opportunity to be heard, is unconstitutional and void as violating the due-process clause of the state and federal Constitutions. Comp. St. 1922, § 6267, Comp. St. 1929, 79--130.
Appeal from District Court, Dodge County; Spear, Judge.
Action by John H. Ruwe and another against School District No. 85 of Dodge County. Judgment for plaintiffs, and defendant appeals.
Affirmed.
John F. Rohn and C. M. Heine, for appellant.
Abbott, Dunlap & Corbett, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY and DAY, JJ.
This is a controversy over a change in the boundary between school district 43 and school district 85, Dodge county. March 6, 1929, the county superintendent, county clerk and county board of Dodge county made an order separating a quarter section of land from district 43 and attaching it to district 85 on petition of the latter which included the village of Winslow. John H. Ruwe and George Wenke, residents, electors and owners of property in district 43, had protested against the change and they subsequently prosecuted in the district court for Dodge county a proceeding in error in which they were plaintiffs and school district 85 was defendant. In making the order changing the boundary between the districts the county tribunal acted under legislation providing:
"When any school district has only three sections of land or less than three sections of land, the county superintendent, county clerk and county board shall have authority and it shall be their duty, upon petition of the district board or board of education of such school district, to make such changes in the boundaries of such district and of any or all districts contiguous thereto as in their judgment will be just and equitable." Comp. St. 1922, sec. 6267; Comp. St. 1929, sec. 79-130.
The proceedings and order of the county tribunal were challenged as erroneous and void on the ground, among others, that the enactment quoted is unconstitutional as violative of the state and federal Constitutions providing that no person shall be deprived of property without due process of law. Nebraska Const. art. I, sec. 3; U.S. Const. Amend. XIV, sec. 1. In the proceeding in error, plaintiffs took the position that the statute, without requiring notice to any one, purported to confer on a tribunal composed of the county superintendent, county clerk and county board judicial power to separate territory from one school district and attach it to another, thus violating the due-process clause of the state and federal Constitutions. On the other hand, defendant contended that the power under which the body composed of county officers acted was legislative, and that therefore notice was not essential, though given by newspaper publication in the present instance.
Upon a trial of the issues raised by the pleadings the district court decreed that the legislation in question and the order of the county tribunal were void; that the boundary was not changed and that the quarter section of land involved was not separated from district 43 and attached to district 85. Defendant appealed.
The competency of plaintiffs to question the constitutionality of the legislation assailed by them is challenged by defendant on the ground that the changing of the boundary between the districts left their lands in district 43--the former situs. The position does not seem to be well taken. Each school district was regularly organized with definite boundaries and conducted a public school in its own schoolhouse with...
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Neb. Const. art. I § I-3 Due Process of Law; Equal Protection
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