Sorenson v. Tobiason

• Decision Date: 26 April 1922
• Citation: 188 N.W. 41,48 N.D. 924
• Court: North Dakota Supreme Court

188 N.W. 41

48 N.D. 924

S. M. SORENSON, P. L. SOLBERG, LEONARD HANSON, S. H. THOMPSON, O. A. KNUDSON, GEORGE GJELSTAD and C. A. HONG, Respondents, v. T. R. TOBIASON, OLE I. HANSON, K. O. BROKKE, MARTIN SPILLUM, and OSMUND SKARPERUD, as the Board of County Commissioners of Traill County, State of North Dakota, and G. D. OLSON, as County Auditor of said Traill County and ANNA G. NESTOS, as County Superintendent of Schools of said Traill County, North Dakota, Appellants

Supreme Court of North Dakota

April 26, 1922

Appealed from the District court of Traill county, Cooley, J.

Affirmed.

Chas A. Lyche, I. A. Acker, States Attorney, Traill County, F. W Ames, and Theodore Koffel, for appellants.

P. G Swenson, for respondents.

BIRDZELL, J. CHRISTIANSON, ROBINSON, and BRONSON, JJ., concur, GRACE, C. J., concurs in the result.

OPINION

BIRDZELL, J.

Appeal from a judgment in a certiorari proceeding, entered in the district court of Traill county. The writ issued to review proceedings of the board of county commissioners and superintendent of schools purporting to organize a new common school district embracing territory within the Buxton special school district. The facts are as follows:

In February, 1921, a special school district was organized, which embraced all of the civil township of Buxton, except sections 1, 2, 3, 11, 12, and the north 1/2 of section 4. In May following a petition was presented to the county superintendent of schools and the board of county commissioners, asking for the organization of a new common school district to be composed of territory embraced in the Buxton special school district, excluding from the proposed common school district sections 13, 14, 23, 24, 25, 26, 35, and 36. The petitioners appealed to the authority of the superintendent and board of county commissioners vested by chap. 197 of the Session Laws of North Dakota for the year 1919. The petition was filed with the county superintendent of schools. Pursuant to notice given and a hearing had, a resolution was passed at the July meeting of the board creating the new common school district as prayed for in the petition. All of the territory of the new district was taken from the Buxton special school district. It comprises 22 1/2 sections, and leaves in the special school district 8 sections. Promptly thereafter a writ of certiorari issued out of the district court to review the proceedings had, and upon the review it was adjudged that the proceedings for the organization for the new common school district were null and void. The only question for consideration on this appeal is whether or not under chap. 197 of the Laws of 1919, which vests in the board of county commissioners and the superintendent of schools authority to create new school districts, such new district can be created from territory embraced within a special school district so that territory within three miles of the central school will be detached from the special district. Chap. 197 of the Session Laws of 1919 is an amendment of § 1147 of the Compiled Laws of 1913; and § 1147, in turn, was first enacted as § 44 of the school Code of 1911 (chap. 266). It is there found under article 3, which is entitled "Common School Districts" and expresses authority of the same nature as that previously vested in the board of county commissioners or in this board acting with the county superintendent of schools in relation to the organization and control of the boundaries of school districts. See § 784 et. seq., Revised Codes of 1905. The section as amended reads:

"Section 1147. New Common School Districts. How Organized. The board of county commissioners and county superintendent may organize a new school district from another district or from portions of districts already organized, if in their judgment the organization of a new district is desirable and necessary, upon being petitioned so to do by at least two-thirds of the school voters residing in the proposed district. When two or more adjoining counties are affected, such proposed new district shall be organized by the concurrent action of the boards of county commissioners and county superintendents of such counties. Action on such organization shall be taken only at the July meeting of the county commissioners. Provided, that all assets and liabilities shall be equalized according to § 1327 of Compiled Laws of North Dakota for the year 1913."

We are of the opinion that this section does not give to the board of...