Stephens v. School District No. 85

• Decision Date: 17 June 1912
• Citation: 148 S.W. 504,104 Ark. 145
• Parties: STEPHENS v. SCHOOL DISTRICT No. 85
• Court: Arkansas Supreme Court

148 S.W. 504

104 Ark. 145

STEPHENS v. SCHOOL DISTRICT No. 85

Supreme Court of Arkansas

June 17, 1912

Appeal from Lonoke Circuit Court: Eugene Lankford, Judge; affirmed.

Judgment affirmed.

J. W Stephens, pro se.

1.The alleged demurrer was a mere protest.

2.The record shows on its face a majority favoring the new district.No evidence to the contrary was offered.54 Ark 135;Kirby'sDig., § 7544.

3.The facts warranted a new district, and the court, a court of competent jurisdiction, so found, and it will be presumed to have acted upon sufficient evidence to sustain its finding.53 Ark. 478;38 Id. 157.

George M. Chapline and Trimble, Robinson & Trimble, for appellee.

The statute requires a majority of the electors residing in the district.Kirby'sDig., § 7544.The burden was on petitioners to show this.54 Ark. 134.They failed.

Charles A. Walls, for appellants in reply, cites 98 Ark. 553, and 54Id. 134.

OPINION

FRAUENTHAL, J.

This is an appeal from the judgment of the circuit court, setting aside an order of the county court forming a new school district.The proceeding was begun by a petition being filed in the county court in which it is stated that the petitioners request said court to form a new school district out of certain territory which is therein specifically described.This territory is a part of School DistrictNo. 85, and two directors of that school district filed a remonstrance against or response to said petition, in which they stated that the territory described therein is a portion of School DistrictNo. 85, and that the petitioners did not constitute a majority of the electors of said school district.The county court found that the petitioners were entitled to the new school district prayed for, and made an order forming such district out of a portion of the territory of said established School DistrictNo. 85.From this order of the county court an appeal was prosecuted to the circuit court.In the circuit court the matter was submitted for determination upon the petition, response and the record of the county court.The circuit court found that the petitioners did not show that a majority of the electors residing in said district No. 85, out of which the new district is sought to be created, favored the formation of said new district, and also that the petition itself did not state facts sufficient to warrant the relief asked.It thereupon entered judgment setting aside the order of the county court forming said new school district.From this judgment the petitioners have appealed to this court.

This proceeding for the formation of a new school district was had in pursuance of section 7544 of Kirby's Digest, which provides: "The county court shall have the right to form new school districts or change the boundaries thereof upon a petition of a majority of all the electors residing upon the territory or the district to be divided."(Acts of 1891p. 194.)In the case of Hudspeth v. Wallis, 54 Ark. 134, it was held that by virtue of this statute it requires the consent by petition of a majority of the electors of the district whose territory is to be divided in order to authorize the county court to form a new school district.It follows, therefore, that, before the petitioners were entitled to the relief asked, it was necessary that a majority of the electors of School DistrictNo. 85, out of whose territory the new school district was to be formed, should sign the petition asking for the formation of the new school district.Before the court was authorized to form the new school district, it was necessary for it to find that such majority did by petition ask or consent to its formation.This it could only find from proper testimony adduced upon the trial of the matter.It therefore devolved upon those seeking the formation of the new district to show this fact.Upon the hearing of the proceeding in the circuit court, no testimony was introduced relative to this question of fact.From the judgment which that court entered it appears that the matter was submitted "upon the pleadings and record filed herein."The petition is signed by eighteen persons.But in the petition there is no statement that those signers constituted a majority of the electors residing upon the territory of the district to be divided, nor in fact is there any allegation in this petition that any...