School Dist. No. 49 of Merrick County v. Kreidler

• Decision Date: 10 January 1958
• Docket Number: No. 34276,34276
• Citation: School Dist. No. 49 of Merrick County v. Kreidler, 87 N.W.2d 429, 165 Neb. 761 (Neb. 1958)
• Parties: SCHOOL DISTRICT NUMBER 49 OF MERRICK COUNTY, Nebraska, et al., Appellees, v. Jessie G. KREIDLER, County Superintendent of Schools of Nance County, Nebraska, et al., Appellants. Impleaded with Lena Deininger, County Superintendent of Schools of Howard County, Nebraska, et al., Appellees.
• Court: Nebraska Supreme Court

Page 429

87 N.W.2d 429

165 Neb. 761

SCHOOL DISTRICT NUMBER 49 OF MERRICK COUNTY, Nebraska, et al., Appellees, v. Jessie G. KREIDLER, County Superintendent of Schools of Nance County, Nebraska, et al., Appellants Impleaded with Lena Deininger, County Superintendent of Schools of Howard County, Nebraska, et al., Appellees.

No. 34276.

Supreme Court of Nebraska.

Jan. 10, 1958.

Syllabus by the Court

1. An error proceeding in the district court and in this court on appeal therefrom is ordinarily tried on the appropriate and relevant questions of law set out in the petition in error and appearing in the transcript.

2. However, in such proceedings, error may be predicated on sufficiency or insufficiency of the evidence as a matter of law to affirm or reverse the finding and judgment of the court or tribunal from which error was prosecuted if all of the material, relevant evidence is properly presented in a bill of exceptions.

3. A judgment rendered or final order made by the board or tribunal provided for in section 79-402, R.S.Supp., 1955, may be reversed, vacated, or modified on petition in error filed in the district court for the county in which such board or tribunal, acting multilaterally in a judicial capacity, had its jurisdictional forum where the hearing was held and its judicial functions were performed.

4. A complete transcript of such proceedings, containing the final judgment or orders rendered by such board or tribunal in the county of its jurisdictional forum, is sufficient when properly authenticated by the county superintendent who presided at the proceedings and hearing in such forum.

5. In conformity with section 79-484, R.R.S.1943, the transfer of a child or children from or to a city or village school district, however classified, located wholly or partly within the boundaries of any city or village, is invalid and of no force and effect without written permission of the owner or owners in fee simple of the real estate involved in the transfer.

6. When proper petitions are filed with the several county superintendents of schools requesting creation of a new district from other districts, or a change of boundaries of school districts across county lines under the provisions of section 79-402, R.S.Supp., 1955, it is the duty of the superintendents to give proper notice of and hold a multilateral public hearing, and at or after such hearing to factually determine whether or not such districts have lawfully petitioned the same, and such action is judicial in nature.

7. When the record of proceedings before such county superintendents in a proper hearing by them upon petitions filed under section 79-402, R.S.Supp., 1955, discloses that the legal voters of the districts involved have severally signed and filed proper petitions requesting creation of a new district from other districts or a change of boundaries thereof, such superintendents, acting multilaterally and not unilaterally, have jurisdiction and the mandatory duty to order the changes requested by such petitions, which order may be reviewed on petition in error, thereby providing an adequate remedy. Otherwise, they have no jurisdiction and mandatory duty to order the changes requested.

Brower & Brower, Fullerton, for appellants.

Sampson & Armatys, Central City, for appellees.

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

CHAPPELL, Justice.

This case involves the validity of proceedings under section 79-402, R.S.Supp.1955, to enlarge the boundaries of Class II school district No. 49 of the village of Palmer in Merrick County by annexing and attaching thereto all of the territory then within the boundaries of certain hereinafter enumerated Class I school districts of Merrick, Howard, and Nance counties.

The record discloses, and it is conceded, that district 49 in accord with official action of its board of education, filed duly certified petitions on April 11, 1956, with the county superintendents of each of said counties, seeking thereby to have them take such joint and concurrent action as required by law to change the boundaries of district 49 to include therein all of the territory then contained within the boundaries of the following constituted and enumerated school districts of their respective counties, to wit: Districts Nos. 31, 36, 47, 58, and 63 of Merrick County; districts Nos. 4, 60, and 61 of Nance County; joint district Nos. 52 of Merrick County, 69 of Nance County, and 80 of Howard County; joint district Nos. 60 of Merrick County and 51 of Nance County; and joint district Nos. 53 of Merrick County and 77 of Howard County. The petitions of district 49 also provided: 'PROVIDED, HOWEVER, that this petition is on the condition that sufficient other school district file similar petitions to bring into said School District No. 49 sufficient territory and personal property to make the total valuation of all property subject to taxation in such enlarged School District No. 49 at the time of enlargement exceed Three Million Dollars.

'PROVIDED, FURTHER, that this petition is on condition that the present School District No. 49, and any other district presenting a similar petition at the same time, shall continue to be solely liable for any bonded indebtedness which may exist against said district at the time of such proposed annexation.'

On the same date, each of the aforesaid Class I enumerated districts so filed separate duly certified petitions, identical in form and substance, and containing identical conditions as quoted aforesaid. Each of such petitions was purportedly signed by 55 percent or more of the legal voters in each such district, who therein petitioned the three county superintendents aforesaid to change the boundaries of district 49 of Merrick County by annexing and attaching all the territory within the boundaries of each of their respective districts to said district 49. Thereafter, the three county superintendents, acting multilaterally, fixed the time and place for public hearing upon such petitions as 1:30 p. m., Monday, May 7, 1956, in the district courtroom at the courthouse in Central City, Merrick County, and notice of such hearing was duly published in each county under the name and by authority of the three county superintendents. At the time and place so authorized and noticed, a multilateral public hearing, with the county superintendent of Merrick County presiding, was held by the three county superintendents upon the separate petitions, whereat each was read and explained, and each and every person, some of whom as objectors were represented by counsel, was granted the right to challenge the accuracy of the filed sworn list of legal voters as the same appeared on each petition, the genuineness of the signatures thereon, their right as legal voters to sign each petition, and the validity thereof as to form and substance. It was also stipulated that the petitions should all be considered as in evidence, and evidence was adduced with relation to the correct number of legal voters in district 58 of Merrick County and the validity of certain signatures appearing upon its petition, which purportedly was signed by 55.5 percent of its legal voters.

Also, evidence was adduced upon the total valuation of all property subject to taxation in such enlarged district 49 during 1955 and 1956, in order to determine whether or not it exceeded three million dollars as required by the first condition contained in all petitions. In that connection, on May 7, 1956, all of the 1956 valuation figures were not yet available, so by agreement of all parties at the hearing, it was continued until 10 a. m., July 9, 1956, to then be resumed at the same place. At that time and place additional evidence was adduced, whereupon the merits were argued by counsel for the parties and taken under advisement.

Thereafter, on July 12, 1956, the county superintendent of Nance County signed and filed an opinion and decision in the office of each of the county superintendents, which denied any relief sought by the petitions for substantially the following reasons: (1) That the 1956 valuation of all property subject to taxation in district 49 at the time of enlargement was less than three million dollars, because intangible property should not be included in such valuation, thus the first condition in the petitions could not be complied with; (2) that Dallas Wegner and NaNelle Wegner, who signed the petition of district 58, were not legal voters in such district, but that Mary Garrett, who was a legal voter in that district, did not sign the petition and was not included in the filed sworn list of legal voters; therefore, in either event the petition of district 58 was insufficient because it was signed by less than 55 percent of the legal voters of that district; and (3) that her opinion and decision also disapproved the merger for other reasons based entirely upon her own purported unilateral information, which reasons were either not supported by any competent evidence or were entirely immaterial. To repeat them here would serve no purpose.

Thereafter, on July 20, 1956, the county superintendents of Merrick and Howard counties signed and filed an order of annexation in the offices of each of the three county superintendents, which order the county superintendent of Nance County had refused to sign. That order found and adjudged substantially as follows: (1) That district 49 of Merrick County, through its board of education, had validly petitioned the three county superintendents acting jointly and concurrently, to change its boundaries by annexing to and including within its boundaries all of the territory contained within the boundaries of each and all the districts heretofore enumerated; (2) that each of such enumerated districts, in separate petitions signed by 55 percent or more of its legal voters, had also validly petitioned the county superintendents to change the...