Sugar Grove School District No. 19 v. Booneville Special School District No. 65

• Decision Date: 14 May 1945
• Docket Number: 4-7643
• Citation: 187 S.W.2d 339,208 Ark. 722
• Parties: Sugar Grove School District No. 19 v. Booneville Special School District No. 65
• Court: Arkansas Supreme Court

187 S.W.2d 339

208 Ark. 722

Sugar Grove School District No. 19 v. Booneville Special School District No. 65

No. 4-7643

Supreme Court of Arkansas

May 14, 1945

Appeal from Logan Circuit Court, Northern District; J. O. Kincannon Judge.

Reversed.

Charles I. Evans, for appellant.

Jeptha A. Evans, for appellee.

OPINION

Millwee J.

On September 7, 1944, a petition was filed with the County Board of Education of Logan county purportedly signed by 17 qualified electors of Sugar Grove School DistrictNo 19 to dissolve said district and annex it to Booneville DistrictNo. 65.On the same date a notice, signed by the chairman of the county board of education, was published in the Booneville Democrat of the filing of the petition and advising that a hearing would be held thereon on September 19, 1944.Additional petitions and affidavits of qualified electors favoring consolidation were filed on the date set for the hearing.On the same day 101 "residents" of the Sugar Grove district filed their petition protesting dissolution of said district and consolidation with the Booneville district.

The record of the action of the county board of education on September 19, 1944, is as follows: "A petition to consolidateSugar Grove School DistrictNo. 19 with Booneville School DistrictNo. 65 was presented for the consideration of the county board of education.Mr. R. H. Swint, secretary of the Sugar Grove board, represented those wishing to consolidate.Mr. C. I. Evans represented those opposing consolidation.The petitions were examined, and it was shown that a majority of the legal voters were in favor of consolidating.The request to consolidate was granted.Mr. Evans filed an appeal to circuit court."

At a hearing of the appeal in circuit court on September 30, 1944, appellant first challenged the jurisdiction of the court because of the insufficiency of the notice given of the filing of the petition and the hearing to be held on September 19, 1944.The court found that the notice was published on September 7, 1944; that a number of remonstrants and their attorney were present at the hearing before the county board of education on September 19, 1944, and failed to raise the question of the insufficiency of the notice, and that such question could not be raised in the circuit court on appeal.It was then found that 33 of the 65 qualified electors of Sugar Grove School district signed the petition for consolidation and the order of the consolidation made by the county board of education was affirmed.

The consolidation proceedings herein were instituted under §§ 11481and11488 of Pope's Digest, as amended by Act 327 of 1941, which act created the office of county supervisor of schools, in the place of the county examiner, and the county board of education for the county court.By § 11481 it is provided that when a petition for consolidation is filed "notice thereof shall be given by publication in a newspaper having bona fide circulation in the county, to be given by the county examiner on order of the county court, and published once a week for two weeks, giving the date of the hearing of such petition."The statute as amended further provides that appeals may be taken to the circuit court from the county board of education on the ground that the requisite number of electors have not signed the petition, or because the notices required were not given.The findings of the county board of education otherwise are conclusive.

It is the contention of appellant that publication of the notice for the time and in the manner required by this statute is a prerequisite, and that the county board of education was without jurisdiction to enter the order of consolidation.The record discloses that the notice herein was published once, on September 7, 1944, of the hearing to be held on September 19, 1944.The statute requires the notice to be "published once a week for two weeks."Here, there was only one publication for a period of less than two weeks.If the failure to give the statutory notice is jurisdictional, appellant's contention must be sustained.

Under prior statutes requiring notice of publication of the filing of the petition and the date of the hearing thereon, this court has held such notice to be jurisdictional.In the case of Mitchell v. Directors School DistrictNo. 13, 153 Ark. 50, 239 S.W. 371, this court said: "It is the contention of counsel for appellants that the action of the county board in transferring the four sections of land from School DistrictNo. 6 to School DistrictNo. 15 is invalid because the notice required by § 8821 of Crawford & Moses' Digest was not given.That section provides, in substance, that notice of the proposed change shall be given in the form provided by the statute by posting the same thirty days before the convening of the court at which the petition shall be presented.

"In Lewis v. Young,116 Ark. 291, 171 S.W 1197, this court held that the giving notice of change as prescribed by the statute was a prerequisite to the exercise of jurisdiction in the premises by the county court.Other courts have held that similar statutory requirements are jurisdictional, and that a failure to comply with them invalidates the organization of the school district and all taxation resulting therefrom.Perryman v. Bethune,89 Mo. 158, 1 S.W. 231;Noble v. White(Ky.), 77 S.W. 678;Gentle v. Board of School Inspectors,73 Mich. 40, 40 N.W. 928;FractionalSchool...