School Dist. No. 23 of Dakota County v. School Dist. No. 11 of Dakota County

• Decision Date: 27 January 1967
• Docket Number: No. 36377,36377
• Citation: School Dist. No. 23 of Dakota County v. School Dist. No. 11 of Dakota County, 148 N.W.2d 301, 181 Neb. 305 (Neb. 1967)
• Parties: SCHOOL DISTRICT NO. 23 OF DAKOTA COUNTY, Nebraska et al., Appellees, v. SCHOOL DISTRICT NO. 11 OF DAKOTA COUNTY, Nebraska et al., Appellants.
• Court: Nebraska Supreme Court

Page 301

148 N.W.2d 301

181 Neb. 305

SCHOOL DISTRICT NO. 23 OF DAKOTA COUNTY, Nebraska et al., Appellees, v.SCHOOL DISTRICT NO. 11 OF DAKOTA COUNTY, Nebraska et al., Appellants.

No. 36377.

Supreme Court of Nebraska.

Jan. 27, 1967.

Syllabus by the Court

1.The legislative function in transfers of land among school districts is unaffected by constitutional guaranties of procedural due process.

2.A trial type of administrative hearing is ordinarily required for disputes of adjudicative facts.

3.An order of an administrative officer is not reviewable by error proceedings under section 25--1901, R.R.S.1943, unless the officer exercised judicial functions.The phrase 'judicial functions' refers to disputes of adjudicative facts and to administrative action in a judicial manner required by statute.

Smith, Smith & Boyd, Cecil W. Orton, South Sioux City, for appellants.

Ryan & Scoville, South Sioux City, McKinley & Jandt, Sioux City, Iowa, for appellees.

Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH and McCOWN, JJ., and LYNCH, Dstrict Judge.

SMITH, Justice.

A county superintendent of schools attached to one school district the lands of another district, which he also dissolved.On review of the order in an error proceeding the district court found the evidence insufficient, and it therefore vacated the order.This appeal followed.

The parties argue not only sufficiency of the evidence but also constitutionality of the statute under which the administrative order was made.Appellees say that absence of a statutory provision for notification and hearing denied them due process of law.Inseparable from the argument is the further question whether the order might be attacked by error proceedings.

The superintendent asserted authority under this statute: 'When a river has changed or changes its channel so that the original boundaries of the school district have been changed and the district is less in area than four full sections of land, exclusive of accreted lands, and the school district has fewer than twenty persons of school age, the county superintendent shall attach such remainder or portion to an adjoining district or districts.'Section 79--408.01, R.R.S.1943.

Although the statute authorized summary action, the superintendent published notice of hearing, announcing that School DistrictNo. 23 was subject to merger with neighboring school districts.At the appointed time and place he held a hearing at which appellees were represented.He orally stated in some detail that the area of School DistrictNo. 23 was 1,208.5 acres, exclusive of accretion, and that only 12 children of school age resided there.The district was bounded by the Missouri River, but nothing in the record shows that a channel change reduced the size of the district.Appellees unsuccessfully objected to deprivation of a right to cross- examine the superintendent.The subsequent order transferred all the land of School DistrictNo. 23 to School DistrictNo. 11.

The initial decision in the transfer of land from one school district to another is legislative.In that respect transfers are unaffected by constitutional guaranties of procedural due process.See, Halstead v. Rozmiarek, 167 Neb. 652, 94 N.W.2d 37;School Dist. No. 7 of Wallowa County v. Weissenfluh, 236 Or. 165, 387 P.2d 567.A statute directing detachment of land without a hearing was held, however, to violate due process.Schutte v. Schmitt, 162 Neb. 162, 75 N.W.2d 656.

The statute in the Schutte case described school districts in terms of voters, pupils, and contracts with other districts for tuition and transportation.It directed the county superintendent to dissolve those districts summarily.The court said that the administrative authority was legislative but that a finding of facts necessary for authority was quasi-judicial.It concluded that lack of a provision for notification and a trial type of hearing violated constitutional due process.

The thought of fixing boundaries without an administrative hearing had not shocked the court in prior cases.'The framers of the statute could, had they so desired, have authorized a county...