Sch. Dist. No. 61, Payne Cnty. v. Consol. Dist. No. 2, Coyle

• Decision Date: 16 June 1925
• Docket Number: Case Number: 15398
• Citation: 110 Okla. 263,1925 OK 518,237 P. 1110
• Parties: SCHOOL DISTRICT NO. 61, PAYNE COUNTY, v. CONSOLIDATED DISTRICT NO. 2, COYLE, LOGAN COUNTY.
• Court: Oklahoma Supreme Court

1925 OK 518

237 P. 1110

110 Okla. 263

SCHOOL DISTRICT NO. 61, PAYNE COUNTY, v. CONSOLIDATED DISTRICT NO. 2, COYLE, LOGAN COUNTY.

Case Number: 15398

Supreme Court of Oklahoma

Decided: June 16, 1925

Syllabus

¶0 1. Officers--Statutory Directions as to Procedure--When Mandatory.

In general, statutory provisions directing the mode of proceeding by public officers and intended to secure order, system, and dispatch in proceedings, and by a disregard of which the rights of parties cannot be injuriously affected, are not regarded as mandatory, unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. 25 R.C.L. p. 769, sec. 16.

2. Schools and School Districts--Transfer of Pupils--Statutory Procedure--Substantial Compliance.

The provisions of section 10602, C. S. 1921, relating to the time of notice of the filing of application for transfer of pupils from one school district to another, and the mode prescribed for making transfer of pupils, are directory and not mandatory, and a substantial compliance with same by the county superintendent is sufficient, in the absence of proof of material injury or substantial injustice resulting therefrom to the aggrieved party.

Commissioners' Opinion, Division No. 3.

Error from District Court, Payne County; Charles C. Smith, Judge.

Action by Consolidated District No. 2, Coyle, Logan County, against School District No. 61, Payne County. Judgment for plaintiff, and defendant brings error. Affirmed.

John P. Hickam, for plaintiff in error.

John J. Hildreth and F. H. McGuire, for defendant in error.

JONES, C.

¶1 This action was instituted in the district court of Payne county, Okla., by the defendant in error, as plaintiff, against the plaintiff in error, as defendant, to, recover certain sums of money due the plaintiff from the defendant by reason of the transfer of certain pupils from the defendant school district No. 61, of Payne county, Okla., to the plaintiff, consolidated school district No. 2, Coyle, Logan county, Okla., The amount sued for represents the per capita tuition for maintenance of the plaintiff, school district No. 2, Coyle.

¶2 Upon the trial of the case before the court without the intervention of a jury, judgment was rendered for the plaintiff and against the defendant for the amount sued for, from which judgment this appeal is prosecuted. The defendant admits that the pupils were transferred by the county superintendent from district No. 61 of Payne county to consolidated district No. 2, Coyle, Logan county, and that the three pupils, viz., Jake Shellhammer, Inez Shellhammer, and Royal Clark, pursuant to such transfer attended the consolidated district No. 2, Coyle, for the entire school year of 1922- 1923, and received the full benefit of said school term, but denies any liability, for the reason that the transfer was not regularly made as provided by our statute, section 10602, C. S. 1921, as follows:

"All requests for transfer by the parent or guardian of any child or children shall be made and filed with the county superintendent not later than the first day of June. The county superintendent shall, not later than the fifth day of June, notify in writing the school boards of every district from or to which an application for transfer has been made, that he will on the tenth day of June hold a hearing regarding said application for transfers. If the transfer is to be made to a district in another county the county superintendent shall notify the county superintendent of the county to which the transfer is to be made of the request for the transfer, who shall then notify the district affected. On the date of said hearing any person or persons of an affected district may appear before the county superintendent and give any reason why the transfer should not be made. After the hearing, if the county superintendent is of the opinion that it is to the best interest of the school children, and that the best interests of the schools will not be adversely affected, he shall make the transfer. If he is not so satisfied, he shall refuse the transfer. Provided that any person interested in such transfer shall have the right of appeal from the action of said superintendent to the board of county commissioners, who shall hear said appeal at their next meeting after said appeal shall have been perfected before said board, and their decision thereon shall be final."

¶3 From which it will be noted that the request for transfer shall be made not later than the first day of June; that notice to the districts affected shall be given by the county superintendent not later than the 5th day of June; that he will on the 10th day of June hold a hearing regarding the applications for transfers.

¶4 The record discloses in this case that the application for the Shellhammer children was filed May 29th, and the notice of the filing of the application was not issued until June 8th, three days later than provided by the statute, and while the evidence is not conclusive, it appears that the notice was not received by the board, the appellants herein, until possibly June 13th, and on June 14th notice was issued by the superintendent of Payne county and mailed to the board advising them that a hearing had been had on June 10th and two of the Shellhammer children transferred to the Coyle district, and also notice was served on the county superintendent of Logan county to serve notice on the school board of Coyle district of the transfer. It further appears that the application for the transfer of Royal Clark was filed on June 3rd by Mr. McAnally, clerk of the school district No. 61, Payne county, appellant herein, and notice of the application was not given until June 10th, the day on which the hearing seems to have been had, and notice of the action of the county superintendent in making the transfer seems to have been issued on June 14th. The notices issued on June 14th to the different school districts notifying same of the transfers do not bear the signature of the county superintendent, and this irregularity is also complained of.

¶5 The specifications of error alleged by appellant go to the question of whether or not the provisions of our statutes heretofore referred to, directing the county superintendent in the manner of making the transfers are mandatory or directory, and contend that the provisions requiring the notice to be given not later than June 5th of the application for transfers is mandatory and jurisdictional, and that the failure to comply with said provision renders all proceedings in this case void.

¶6 This presents a rather difficult question, and no very clear and well-defined rules have been established to guide courts in passing upon the question as to whether a statute is mandatory or directory. The case of People v. Cook, 14 Barb. (N.Y.) page, 259, seems to be one among the early cases passing upon this question, and is frequently referred to in later decisions, wherein the following rule is announced in the syllabus of the opinion:

"Statutes directing the mode of proceeding by public officers are directory, and a strict compliance with their provisions is not essential to the validity of the proceedings, unless it be so declared in the statutes.

"Within this principle, where a statute directs a public officer to do a thing within a certain time without any negative words restraining him from doing it afterwards, the naming the time will be regarded as directory

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