State ex rel. Goetz v. Lundak, C-5

• Decision Date: 14 December 1977
• Docket Number: No. 41239,No. C-5,No. 86-R,C-5,86-R,41239
• Parties: STATE of Nebraska ex rel. Max W. GOETZ and James T. Goetz, Appellees, v. Edward E. LUNDAK, Superintendent of Schools, Knox County, Nebraska, Appellee, and School Districtof Knox County, Nebraska, Bloomfield School Districtof Knox County, Nebraska, Intervener-Appellants, and School District of Niobrara, Knox County, Nebraska, Intervener-Appellant.
• Court: Nebraska Supreme Court

Page 589

260 N.W.2d 589

199 Neb. 585

STATE of Nebraska ex rel. Max W. GOETZ and James T. Goetz, Appellees, v. Edward E. LUNDAK, Superintendent of Schools, Knox County, Nebraska, Appellee and School District No. C-5 of Knox County, Nebraska, Bloomfield School District No. 86-R of Knox County, Nebraska, Intervener-Appellants and School District of Niobrara, Knox County, Nebraska, Intervener-Appellant.

No. 41239.

Supreme Court of Nebraska.

Dec. 14, 1977.

Syllabus by the Court

1. An action in mandamus is a law action in which a jury trial on issues of fact is not demandable as a matter of right, and the finding of the District Court will not be disturbed by this court on appeal unless clearly wrong.

2. To warrant the issue of mandamus against an officer to compel him to act, (1) the duty must be imposed upon him by law, (2) the duty must still exist at the time the writ is applied for, and (3) the duty to act must be clear.

3. In an action in mandamus the relator has the burden of proof and must show clearly and conclusively that he is entitled to the particular thing he asks and that the respondent is legally obligated to act.

4. The writ of mandamus is not a writ of right. Before a court is warranted in granting a peremptory writ, it must appear that the relator has a clear legal right to the performance of the duty by the respondent.

5. In order for the provisions of section 79-408.02, R.R.S.1943, to be applicable, the acquisition of land by the United States for the purposes named in the statute must have been the cause, or a substantial part of the cause, of the existence of the conditions described in the statute under which the county superintendent is directed to attach the territory of the school district affected to an adjoining district or districts.

6. Although mandamus is denominated a law action, it is largely controlled by equitable principles.

7. Where the issuance of a writ of mandamus would disturb official action, or create disorder or confusion, it may be denied, and this is so even when the petitioner has a clear legal right for which mandamus would be an appropriate remedy.

Arlinda Locklear, Richard B. Collins, A. John Wabaunsee, Boulder, Colo., Philip M. Martin, Jr., of Higgins, Higgins & Huber, Grand Island, Robert E. Otte of Deutsch, Jewell, Otte, Gatz, Collins & Domina, Norfolk, and James A. Burbridge of Burbridge & Burbridge, Bloomfield, for intervener-appellants.

Henry G. Wright, Winnebago, for intervener-appellant.

James T. Goetz of Goetz, Hiresh, Haar & Klimisch, Yankton, S. D., and Max W. Goetz, Hartington, for appellees State ex rel. Goetz et al.

Frank Roubicek, Creighton, for appellee Lundak.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.

CLINTON, Justice.

This is an action in mandamus commenced September 24, 1976, by the relators, landowners in Class I School District No. C-5, Knox County, Nebraska, to require the respondent, the county superintendent of Knox County, to dissolve School District No. C-5 and attach its territory to an adjoining district or districts, pursuant to the provisions of section 79-408.02, R.R.S.1943. The portion of that statute pertinent to the action reads as follows: "When a district is reduced in size by the purchase or appropriation of land by the United States for any defense, flood control, irrigation, or war project, so that such remaining part shall . . . (2) have an assessed value that places it in the lower twelve per cent of the school districts of the same class in the county, it shall be the duty of the county superintendent to attach such remainder to an adjoining district or districts." The respondent resisted the demand for the writ. School District No. C-5 (which we will hereafter refer to as the Santee District), Bloomfield School District No. 86-R, and School District of Niobrara were allowed to intervene and file answers which resisted the demand for the writ. The latter two districts adjoined the Santee District. The District Court, after trial, granted the peremptory writ of mandamus. The interveners have appealed. They have filed a supersedeas bond and the operation of the writ has been suspended.

The resolution of the assignments of error made by the interveners-appellants require us to consider only three issues, to wit, (1) the effect of the statute, (2) the legal sufficiency of the evidence to sustain the District Court's action in granting the writ, and (3) whether the trial court abused sound judicial discretion in granting relief. We reverse and direct dismissal of the petition.

The evidence received by stipulation shows that in the fiscal year 1954-55 there were 136 Class I school districts in Knox County. In that year the assessed valuation of the Santee District was $122,525 and it ranked 99th among those districts in assessed valuation. During the years 1955 and 1956 the United States, by multiple purchases and the exercise of the power of eminent domain, acquired in the Santee District 2,833 acres of land for flood control and irrigation purposes in connection with the Gavins Point Dam Project. The exact dates of the various acquisitions are not shown in the record except to the extent that the last eminent domain proceeding was filed on September 6, 1956. Neither the assessed nor the actual value of the 2,833 acres acquired by the United States is shown anywhere in the record. In fiscal year 1955-56, the number of Class I school districts in Knox County was reduced by 1 so that the total was 135. In that year Santee District's valuation was $120,995 and it ranked 100th in assessed valuation. In fiscal 1956-57 the number of Class I districts was reduced to 129, Santee District had an assessed valuation that year of $80,155, and its rank was 113th. In fiscal 1957-58 the number of Class I districts was reduced to 128, Santee District's assessed valuation that year was $73,390, and its rank was 112th. In fiscal 1958-59 the total number of Class I districts had been reduced to 113 and, although Santee District's valuation for that year increased to $84,665, its numerical rank in assessed valuation lowered to 103rd. It is evident that for the fiscal year 1958-59, Santee District was in the lower 11 districts in assessed valuation and for the first time it entered the group of Class I districts which were in the lower 12 percent in valuation rank.

No steps were taken by anyone to cause Santee District's territory to be attached to other districts until the relators made demand upon the county superintendent shortly before this action was commenced in 1976. From 1959 onward the number of Class I districts was reduced more or less regularly until in the fiscal year 1970-71 the number was 7 and finally in fiscal year 1976-77 Santee District was the only Class I district in the county.

The position of the intervener districts is that in order for the pertinent provisions of section 79-408.02, R.R.S.1943, to be applicable the acquisitions by the federal government for irrigation and flood control purposes must be the cause or reason why the district reaches the place where its assessed valuation is "in the lower twelve per cent of the school districts of the same class in the county." § 79-408.02, R.R.S.1943. The interveners further assert that the evidence does not establish that the federal acquisitions were the cause of Santee District's rank in the lower 12 percent. The relators, on the other hand, assert that it is a reasonable inference from the evidence that the acquisitions were the cause of Santee District's rank in the lower 12 percent and this court cannot, under the rules applicable to our review of the District Court action, overturn its findings of fact.

We have held that an action in mandamus is a law action in which a jury trial on issues of fact is not demandable as a matter of right and that the finding of the court will not be disturbed by this court unless clearly wrong. State ex rel. Rittenhouse v. Newman, 189 Neb. 657, 204 N.W.2d 372; §§ 25-2164, 25-2165, R.R.S.1943.

The Legislature has made many and varied provisions for the elimination, merger, and consolidation of school districts. Some of the methods involve voluntary action by school electors and school boards. Other statutory provisions, of which section 79-408.02, R.R.S.1943, is an example, direct attachment of the territory of a district to another district or districts if certain conditions exist. In these latter cases the county superintendent is given a mandatory duty and he acts summarily. School Dist. No. 23 v. School Dist. No. 11, 181 Neb. 305, 148 N.W.2d 301. It is clear from the wording of section 79-408.02, R.R.S.1943, that the duty which it imposes on the county superintendent is mandatory and not discretionary. Under those circumstances the remedy of mandamus is an available remedy where the responsible officer has refused to carry out his statutory obligation. State ex rel. Krieger v. Board of Supervisors, 171 Neb. 117, 105 N.W.2d 721. In that case we said: "To warrant the issue of mandamus against an officer to compel him to act, (1) the duty must be imposed upon him by law, (2) the duty must still exist at the time the writ is applied for, and (3) the...