School Districts Nos. 14 and 58 v. Henderson
| Decision Date | 06 December 1920 |
| Docket Number | 35 |
| Citation | 226 S.W. 517,146 Ark. 338 |
| Parties | SCHOOL DISTRICTS NOS. 14 AND 58 v. HENDERSON |
| Court | Arkansas Supreme Court |
Appeal from Arkansas Chancery Court, Southern District; John M Elliott, Chancellor; affirmed.
STATEMENT OF FACTS.
The directors of Common School District No. 14 of Arkansas County, and certain tax payers residing in the common school district, brought this suit in equity against the county superintendent, the county clerk, the county treasurer and Gillett Special School District No. 66 of Arkansas County, to enjoin them from paying any warrants or asserting any right to the funds belonging to Common School District No. 14, and from taking control of any lands or school property within said district for school purposes. They allege that the directors of Gillett Special School District No. 66, without any notice, filed a petition in the county court to transfer a greater part of the land in Common School District No. 14 to said special school district; that the county court made the order prayed for in their petition without notice to the plaintiffs or any one interested in Common School District No. 14.
The complaint further alleges that the order, if enforced, would deprive said common school district of sufficient funds to have a school and would leave said district without any school house or other property and less than thirty-five persons of scholastic age within the district.
The chancery court sustained a demurrer to the complaint on the ground that it was without jurisdiction, and, the plaintiffs having declined to plead further, their complaint was dismissed. To reverse that decree the plaintiffs have prosecuted this appeal.
The directors and certain tax payers of Common School District No. 58 brought a similar suit against the county clerk county treasurer, and Gillett Special School District No. 66 of Arkansas County, and its board of directors. Their complaint contains substantially the same allegations as in the complaint of Common School District No. 14 of Arkansas County.
The chancery court sustained a demurrer to the complaint on the ground that it was without jurisdiction, and to reverse the decree entered of record the plaintiffs have prosecuted this appeal.
Decree affirmed.
John W Moncrief, for appellants.
1. No notice was given or posted, given or published in any manner and appellant's school districts board and patrons had no information of the orders until after both of them had been made. The orders were void for want of notice and left the districts without sufficient funds to pay its teachers as per contracts, and with less than thirty-five persons of scholastic age as pupils. The county court was without jurisdiction to make the order of annexation. The lower court could not decide that appellee was a school district without any evidence whatever. If the court had jurisdiction, it was its duty to hear evidence as to the questions whether appellee was a single school district and whether the territory described in the complaint is contiguous to appellant school district. The orders in effect amounted to a dissolution of appellant district; the course pursued by appellees was merely on a direct method of destroying and dissolving a common school district without giving the notice and following the procedure required by statute. This is true for the reason that the orders left less than thirty-five pupils in the district; left the district without sufficient funds to maintain a school, employ teachers or acquire school property. This court erred in its decision in 105 Ark. 47-50 and appellees were attempting to take advantage of the opinion in that case. The court erred in that case, and it should be reconsidered. 123 Ark. 570. The people in the territory sought to be annexed should have had notice of the proposed change. The court had no jurisdiction, and the orders were void, as all judgments are where no notice is given. 116 Ark. 291-4. Notice is required by statute. Kirby's Digest, §§ 7540-5; 123 Ark. 570-4. The orders were void because no notice was given. 119 Ark. 117-20; Ib. 149-152; 123 Id. 570; 119 Id. 592.
2. The Legislature did not mean that a single school district could take the school site and house and territory of a common school district by the use of the words contiguous territory. A school district without thirty-five pupils is not contiguous territory within the meaning of the statute. It is not possible that the Legislature meant to allow a single district without notice to take practically all the territory of another district and leave it with less than thirty-five persons of scholastic age by the use of the words "contiguous territory." 25 Am. Rep. 168; 27 Am. St. Rep. 309. See also Black's Law Dict., verbo, contiguous. If the facts alleged by appellants be true, there was in effect a dissolution of district 14, and the severance would not leave sufficient property to support a school and left it without funds or income or property. The statute requires notice and the orders were void. 32 Ark. 13-9; 29 Id. 340; 32 Id. 496; 33 Id. 716; 38 Id. 271. Such acts constitute a misappropriation of funds, and injunction was the proper remedy. 33 Ark. 704; 53 Id. 205; 52 Ark. 541; 35 Cyc. 1049; 93 Ark. 109. The latter case is conclusive as to jurisdiction. 103 Ark. 529-538. The order of January 5, 1920, is void for want of notice and jurisdiction, and injunction was the proper remedy. Act 661, Acts 1919, pp. 457-8, shows the unquestionable intention of the law to require notice to be given of all changes in the boundaries of school districts, and Lewis v. Young and Rural Dist. 17 v. District 56 overrule the McCray-Cox case. A court of equity having jurisdiction for one purpose, should grant full relief and has jurisdiction therefor. Supra. 105 Ark. 47 is overruled by 123 Ark. 570. The territory is not contiguous. 16 A. 97. The demurrer admits that, the territory is not contiguous, and the county court had no jurisdiction and the order was void. 16 A. 97.
The school funds involved were transferred without notice, and they belonged to District 58. 63 Ark. 433; 33 Id. 716; 38 Id. 271; 32 Id. 131-9; 29 Id. 340; 32 Id. 496. The chancery court had jurisdiction to restrain the diversion of these school funds. 93 Ark. 101; 23 Cyc. 993-5.
Botts & O'Daniel, for appellees.
1. The attack upon the orders is a collateral attack upon the judgments of a superior court of record. 136 Ark. 457-9. Such attacks can not be sustained. The court is one of general jurisdiction and its orders can not be collaterally attacked. 94 Ark. 523; 92 Id. 616; 74 Id. 81. In the case of districts 4 and 84 the order enjoined showed on its face that it was absolutely void. 101 Ark. 391, and this is a collateral attack. Ib. 395; 70 Ark. 88; 105 Id. 5.
2. No fraud was practiced on the county court in procuring the orders and fraud must be alleged and proved. 140 Ark. 199-202. The burden is on the party alleging fraud to prove it. Ib. 469.
3. The law presumes that appellants had notice of the proceedings in the county court. 80 Ark. 304, 308.
The act does not require notice. 114 Ark. 555; 101 Id. 395; 61 Id. 474; 72 Id. 101-107.
4. Appellants had an adequate remedy at law; they should have appealed. Kirby's Digest, §§ 1487, 7614, 7626; 128 Ark. 384.
5. Injunction should not have been granted because no notice was given to appellees. The injunction should not have been granted as there was an adequate remedy at law by appeal.
OPINIONHART, J. (after stating the facts).
Because the same issues are involved in each appeal, the cases were consolidated for the purpose of trial in this court, and one opinion will suffice for both cases.
The decision of the chancery court was correct. According to the allegations of the complaint in each case, an election was held for the purpose of annexing the territory in each of the common school districts to Gillett Special School District No. 66, and a majority of the legal voters within the territory voted for the annexation. The election was held, and the order of annexation was made by the county court pursuant to the provisions of section 7695 of Kirby's Digest.
In the case of McCray v. Cox, 105 Ark. 47, 150 S.W. 152, the court in construing this statute held that the county court is authorized to annex contiguous territory to a single school district when a majority of the legal voters of said territory and the board of directors of said single school district ask it by petition.
According to the allegations of the complaint, this section of the statute was complied with in the annexation proceedings. It is insisted, however, that the order of the county court is void because no notice of the annexation was given as required by section 7540 of Kirby's Digest. In the case last cited the court held that where the annexation proceedings were had under section 7695 of Kirby's Digest the notice required by section 7540 of Kirby's Digest was not necessary. The court said that the annexation of the contiguous territory was to be made under the statute when a majority of the legal voters of said territory and the board of directors of the single school district should ask it, and that section 7540 with regard to giving notice did not apply.
In the subsequent case of School District No. 44 v Rural Special School District No. 10, 128 Ark. 383, this court held that under section 7695 of Kirby's Digest authorizing the annexation of contiguous property to a special district, the common school district, which includes the territory to be annexed, is by the statute made a party to the record and that the directors of the common school district may resist proceedings to annex a portion of their property to the special school district. Therefore,...
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