State v. Peterson

• Citation: 177 P. 245,55 Mont. 355
• Decision Date: 16 December 1918
• Docket Number: 4271.
• Parties: STATE ex rel. HALL v. PETERSON et al., Board of County Com'rs.
• Court: United States State Supreme Court of Montana

177 P. 245

55 Mont. 355

STATE ex rel. HALL v. PETERSON et al., Board of County Com'rs.

No. 4271.

Supreme Court of Montana

December 16, 1918

Appeal from District Court, Missoula County; R. Lee McCulloch Judge.

Certiorari by the State, on the relation of H. G. D. Hall, against G. F Peterson and others, comprising the Board of County Commissioners of Missoula County. From a judgment denying the writ and dismissing the proceeding, the relator appeals. Affirmed.

Charles A. Russell, of Missoula, for appellant.

Fred R Angevine, Dwight N. Mason, and L. C. Bolton, all of Missoula, and S. C. Ford and Frank N. Woody, both of Helena, for respondents.

PIGOTT J.

This is an appeal from a judgment denying a writ of certiorari and dismissing the proceeding in that behalf. It arises out of the effort of certain persons to bring about a division of school district No. 28 in Missoula county. The statute under which the steps were taken is section 405 of chapter 76 of the Session Laws of 1913, reading thus:

"Whenever any school district has more than one schoolhouse, and the school electors residing in any particular portion of said district, in which portion there is a schoolhouse, desire a division of said district, they shall present a petition in writing to the board of trustees of said school district, signed by a majority of the school electors of that portion of said school district out of which they desire to create a new school district which petition shall describe the boundaries of the proposed new school district. The board of trustees of said district at any regular meeting or at any special meeting called for that purpose, may approve or deny the said petition in their discretion and shall enter their approval or denial upon the minutes of said meeting and transmit the original petition together with a certified copy of the minutes of said meeting to the county superintendent of schools. If the board of trustees of said school district shall approve of the division of said school district, and no appeal is taken from their decision as herein provided, the county superintendent of schools may thereupon make an order establishing such new district and defining its boundaries. Any three resident taxpayers of either the old or new district may within thirty days appeal from the decision of the said board of school trustees to the county superintendent of schools and may, within thirty days appeal from any decision or order made by the county superintendent of schools to the county commissioners whose decision shall be final."

The petition recited that the persons who signed it were a majority of the school electors and resident freeholders in the territory which they sought to have created into a new district. It described the boundaries of the proposed new district. It stated that there was then standing on the territory of the proposed new district a schoolhouse of sufficient size, and well located in respect of the school population, and that the assessed value of the property within the proposed new district was then over $20,000, and on or before January 1, 1918, would exceed $40,000. It stated that there were then living in that territory 28 children of school age; and the petitioners prayed that the new district be created. The petition was presented to the board of trustees of school district No. 28, which on September 21, 1917, heard the petition, and after investigation and consideration denied it on the merits. On October 8th following, 16 persons, describing themselves as resident freeholders and electors of the territory embraced within the proposed new district, 14 of whom had signed the petition, served on the board notice of their appeal from its decision to the county superintendent of schools, in whose office the notice was filed on October 24, 1917. The superintendent of schools considered the petition on its merits and denied it, and thereupon resident taxpayers to the number of 15, all, or at least a majority, of whom had signed the petition for the division and also the notice of appeal from the board of trustees of the school district to the county superintendent, gave notice to the superintendent of their appeal from her decision to the board of county commissioners of Missoula county, which board heard the appeal, trying the petition on its merits and taking evidence for that purpose. After investigation and consideration of all the facts, the board granted the petition, and ordered that the proposed new district be created. Afterwards it refused a rehearing. Upon these facts, which were disclosed by the record certified to the court below, the relator applied for the writ of certiorari to annul the order of the respondent board. Judgment was entered, refusing the writ and dismissing the proceeding, and relator appeals.

The relator insists that the statutes under which the steps were taken for the creation of the new district are sections 404 and 405 of chapter 76 of the Laws of 1913; but it is manifest that the petition was prepared and presented, and that all the proceedings were taken, under section 405.

The following are the chief contentions urged by relator for reversal:

1. That the facts set forth in the petition to the board of school trustees were insufficient to clothe the board with jurisdiction, for the reason that the petition did not show that the territory sought to be created into a new district was any part of school district No. 28. Suffice it to say that the petition is addressed to the board of school trustees of district No. 28 in...