Sch. Dist. No. 17, Rogers Cnty. v. Eaton, Co.

Citation97 Okla. 177,223 P. 857,1924 OK 184
Decision Date12 February 1924
Docket NumberCase Number: 14720
PartiesSCHOOL DIST. NO. 17, ROGERS COUNTY, v. EATON, Co. Supt., et al.
CourtSupreme Court of Oklahoma
Syllabus

¶0 1. Schools and School Districts--Change in Boundaries--Powers of County Superintendent.

A county superintendent has no power or jurisdiction to change the boundaries of a regularly organized school district, by detaching a portion thereof, and attaching it to another organized district, or forming or creating thereby a new district, until a petition has been duly presented to him, signed by at least one-third of the qualified electors of such school district, and until the notice required by the statute has been given. Cleveland v. School District 79, 51 Okla. 69, P. 577.

2. Same--Arbitrary Action--Injunction.

Where a county superintendent arbitrarily and without the requisite petition and notice, attempts to detach a portion of the territory from an organized school district, injunction is the appropriate remedy. Cleveland v. School District 79, 51 Okla. 69, 151 P. 577.

3. Same--Quo Warranto the Remedy.

Quo warranto is the proper proceeding to determine the question of the legal existence or validity of the organization of a municipal corporation, such as a school district, but where there is no question as to the legality or validity and existence of the organization of the body corporate, the writ of injunction will lie, to enjoin public officials from arbitrarily altering or changing the boundaries of such municipal corporation or school district, and incidentally determine the boundaries.

4. Evidence--Best and Secondary Evidence.

The best evidence the nature of the case will admit of shall always be required, if possible to be had, but when the best evidence is not available and its absence properly accounted for, secondary evidence is admissible.

5. Sufficiency of Evidence.

The evidence as disclosed by the record in this case examined, and held sufficient to clearly establish the material allegations of plaintiff's petition.

Commissioners' Opinion, Division No, 3.

Error from District Court, Rogers County; C. W. Mason, Judge.

Action by School District No. 17, Rogers County, against Caroline Eaton, County Superintendent, and others. From the judgment plaintiff appeals. Reversed.

Frank Ertell, for plaintiff in error.

P. W. Holtzendorff, for defendants in error.

JONES, C.

¶1 This suit was instituted by the plaintiff in error, plaintiff below, against the defendant superintendent of public instruction of Rogers county to enjoin her from changing the boundary line of the plaintiff district; to enjoin the defendant county assessor from assessing the disputed territory in controversy as belonging to defendant school district No. 20 Rogers county, Okla., and to enjoin the defendant county treasurer from supplying the funds derived as taxes from the disputed territory to school district No. 20. School district No. 17 and 20 lie adjacent and the territory in dispute is described as sections 7 and 8, township 20 north, range 17 east, and the north half of sections 11 and 12, township 20 north, range 16 east, in Rogers county, Okla.

¶2 At statehood district 20 was organized and included the disputed territory. The record of the organization is incomplete and from all. the records in evidence the law had not been fully complied with in that the book prescribed for such purposes by statute does not contain a description of the boundaries of the districts. The only record of its organization is the notice posted before organization which notice sets out the disputed territory as being in district 20, and a map showing the territory in dispute to be a part of 20 However, the district carried on its business and was recognized as a legal district and the plaintiff concedes that it became and was a lawful school district. The disputed territory was subsequently transferred to the plaintiff district. The defendants contend that such transfer was not made. All the records that are now in the superintendent's office in so far as they are material, were offered in evidence. Such records are few and incomplete, and as shown by the evidence are evidently not all the records that have been made and that were at one time in existence. All the testimony shows, and it is not contradicted by any evidence, that this disputed territory was carried as belonging to 17, the plaintiff district, from and including the year 1912, to immediately prior to the time of filing this suit. The maps of the superintendent's office show it as belonging to district 17; the residents of the disputed territory were considered as belonging to 17 and took part in the public school meetings and elections of such district and not elsewhere from 1912 to the time of the institution of this suit; the children of said territory attended school in district 17 and were forbidden by district 20 to attend there without a transfer by the county superintendent, and payment therefor by district 17. All the taxes paid by the property owners of the disputed territory commencing with the year 1912 to the time of the institution of this suit were paid in district 17. The plaintiff district erected and maintains a four-room graded school, including high-school work, and the plaintiff offered to show a bond issue made by district 17, about 12 years prior this time, to erect and equip this school and that the owners of the territory in question have paid their part thereof in taxes, and that such bonds are now practically paid.

¶3 The evidence shows that the superintendent in that office in 1915 made a complete series of maps, and district 17 in this series of maps contained the disputed territory. The former superintendent testified that this new series of maps were made from the records that were then a part of his office. The records cannot now be produced. The plat and map which defendant superintendent found as a part of the record when she took office shows the disputed territory in district 17. The superintendent who was in office in 1915 took his office in 1913, and he testified that the same plat or one similar, and placing the disputed territory in district 17, was a part of the record of that office during his incumbency. He further testified that when he took office in 1913 the disputed territory was a part of district 17. This territory was regarded by everyone concerned for ten years as belonging to district 17. Had it not been for the necessity of a certificate of the county superintendent in 1922, describing the boundaries of district 20 when that district issued its bonds, no question of the plaintiff's right to the territory would have arisen. In making this certificate the superintendent shows the description given in the above mentioned notice issued soon after the advent of statehood.

¶4 The defendants admit that no petition to change or alter the district in 1922 was filed and that no notice was given of the contemplated change. Without any other act or formality the defendant superintendent proceeded to take the disputed territory from district 17 and place it in district 20.

¶5 The evidence disclosed that the present superintendent had no records sufficient to show the facts here in controversy in the office, or in her possession at the time of the institution and trial of this suit. C. Dougherty, who was called as a witness, was superintendent for four years, commencing in 1913, testified that he had a file for each district, showing every thing that was done materially to the district; but such files have been lost, misplaced, or destroyed and were not available at the trial of this case.

¶6 There was no evidence offered to show that the change in the districts 20 and 17 was not made as contended in 1912 nor is any contention made that the change, if made, was illegal or irregular in any particular, but as we understand the record the defendants, appellees, contend that the boundary line of districts 20 and 17 have never been changed and remain just as they were created in 1908 immediately following statehood, regardless of the fact that for more than ten years the disputed territory was recognized and treated in every particular as a portion of district 17 and not as a part of district 20.

¶7 The matter was submitted to the court and at the close of the evidence the application for an injunction was denied, from which order and judgment of the court plaintiff appeals. Numerous specifications of error are assigned. The seventh assignment, we think, raises the vital issue in the case:

"That the court erred in that
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