Sult v. O'Brien
| Decision Date | 20 September 1971 |
| Docket Number | No. 2,CA-CIV,2 |
| Parties | Frances SULT et al., Appellants, v. Mary C. O'BRIEN, School Superintendent of Pinal County, Arizona et al., Appellees. 1034. |
| Court | Arizona Court of Appeals |
Robert R. Bean, Pinal County Atty., Florence, for appellees O'Brien, Meeker, Higginbotham, Skousen, Wuertz and Santoro.
Burch, Cracchiolo, Levie, Guyer & Weyl by Joseph L. Moore, Phoenix, for appellees Cunningham, Jones and Wofford.
This case involves the legality of the formation of a high school district in Pinal County, Arizona. This is an appeal from the granting of appellees' motion for summary judgment and the dismissal of appellants' counterclaim seeking a declaratory judgment.
Florence Union High School District, prior to the election in question, was comprised of two elementary school districts: Kenilworth Elementary District and Florence Elementary School District.
Pursuant to A.R.S. § 15--501 as amended, the Board of Trustees of Kenilworth Elementary School District and Coolidge Elementary School District united in a petition to the county school superintendent for the establishment of a high school. 1 The county school superintendent called a special election which was held in October of 1970. At that election the majority of persons voting in both Kenilworth Elementary School District and the Coolidge Elementary School District voted in favor of the establishment of a high school.
Appellants advance three theories supporting their contention that the election was void: (1) That the proper statutory procedure was not followed in holding the election; (2) that A.R.S. § 15--501, subsec. F as amended, is unconstitutional under the equal protection clause of the Fourteenth Amendment of the United States Constitution; and (3) the resulting election creates an inequity and should be void on equitable principles.
In addition to A.R.S. § 15--501, subsec. C which we have previously set forth, A.R.S. § 15--501 contains the following pertinent sections:
'A. A school district having an average daily attendance of not less than two hundred pupils and an assessed valuation of not less than two million dollars, may, by a majority vote of the qualified school electors thereof, establish and maintain a high school.
B. Two or more adjoining school districts jointly having an average daily attendance of not less than two hundred pupils and property valuation as specified in subsection A, may unite and form a union high school district at the expense of such union high school district. No union high school district shall be formed of territory already embodied in a union high school district, unless the remaining territory of the original district is contiguous and has an assessed valuation of not less than five million dollars. When a new district is formed from territory already included in a union high school district, such territory shall no longer be included in the original high school district.
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D. Public notices of the election, not less than five in a single district and not less than three in each district comprising the proposed union district, shall be posted, one to be upon the door of the schoolhouse in each district, at least ten days before the election.
E. The election shall be conducted as nearly as practicable in the manner prescribed in article 1, chapter 3 of this title, relating to school and elections. The ballots shall contain the words 'high school, yes' and 'high school, no', and the voter shall signify his desired choice.
F. If a majority of the persons voting in a single district, or a majority of the persons voting within each district comprising the proposed union district, vote in favor of establishment of the high school, the high school district shall become effective as provided by § 15--402, subsections A and B.'
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Appellants claim that in addition to the statutes already cited that § 15--402, subsec. C must be followed when a new high school district is being formed pursuant to § 15--501. This section provides:
'The boundaries of a district shall not be changed except as provided in this title and then only after the trustees of districts affected have had written notice of the proposed change from the county superintendent and have had an opportunity to be heard.'
It is undisputed that no written notice was given to the trustees of the Florence Elementary School District, nor were they given a hearing.
Appellants have cited to us several cases in support of this contention, namely, Stuart v. Winslow Elementary School District 16, 60 Ariz. 9, 130 P.2d 914 (1942); Glendale (1966); Boyd v. Bell, 68 Ariz. 166, 203 P.2d 618 (1949); Ross v. School District No. 16, 60 Ariz. 9, 130 P.2d 91j (1942); Glendale Union High School District v. Peoria School District, 51 Ariz. 478, 78 P.2d 141 (1938); Hopkins v. School District No. 11, 20 Ariz. 431, 181 P. 366 (1919); King v. Henderson, 5 Ariz.App. 95, 423 P.2d 370 (1967). We consider the foregoing cases to be singularly inapposite. None of these cases concern the formation of a new high school district under the provisions of A.R.S. § 15--501 as amended in 1960. We noted in the case of King v. Henderson, supra, that we saw in § 15--501 the manifest intent to embrace an entire subject of legislation. There is no requirement in any of the sections of A.R.S. § 15--501, of giving notice to the board of trustees of the remaining common school districts and permitting them to have an opportunity to be heard. In fact, A.R.S. § 15--501, subsec. F refers specifically to § 15--402, subsections A and B but does not mention subsection C.
Applying the rule of expressio unius est exclusio alterius, the provisions contained in A.R.S. § 15--402, subsec. C were specifically eliminated as a requirement under the procedures established in A.R.S. § 15--501.
In Goren v. Buena High School District of Cochise County, 91 Ariz. 348, 372 P.2d 692 (1962) the court stated:
'Statutes dealing with the creation or alteration of high school districts * * * are not to have requirements read into them which are not plainly expressed therein or necessarily inferred therefrom.' 91 Ariz. at 353, 372 P.2d at 695.
We hold that the requirements of A.R.S. § 15--402, subsec. C are not applicable to the formation of high school districts under A.R.S. § 15--501.
Because A.R.S. § 15--501 only permits the electors in the proposed district to vote and does not permit the electors in the balance of the old high school district to exercise any vote, appellants claim that the statute violates the Fourteenth Amendment to the Constitution of the United States.
Lionel Gore, the superintendent of Florence Union High School, testified on the motion for summary judgment. He stated that Florence Union High School would lose some 80 students from the Kenilworth Elementary School District out of a total enrollment of 375 students. In the area of assessed valuation, he testified that there was about 9 1/2 million dollars in total assessed valuation in the district and that it would lose 1 3/4 million if the Kenilworth District left Florence Union High School. 2 He stated that only half of the money lost from students who would not be attending any longer would be saved in lower overhead because of the fact that many district expenses would not be lowered at all. He testified that in his opinion the tax rate would go up from the present $2.74 per one hundred dollars of assessed valuation to about $3.99 per one hundred dollars of assessed valuation. Mr. Gore pointed out that Florence Union High School is rated very high by the accrediting association; that by the loss of students and revenue they would probably have to have teachers teaching out of their major fields and that this would have an adverse effect on the community, the students and the high school's accreditation.
Because of the adverse effect testified to by Mr. Gore on the persons remaining in the Florence Union High School District, appellants claim that they should have had a right to vote in the election. To support this theory appellants have cited to us recent Supreme Court cases concerning the 'one man, one vote' 3 rule and cases wherein the franchise was limited to certain voters. 4 None of these cases involve the question presented in this case and therefore we do not feel obliged to follow the United States Supreme Court. Rather, we feel that we are bound by the last pronouncement made by the Arizona Supreme Court on this subject. In Laney v. State, 20 Ariz. 416, 181 P. 186 (1919) the attack which the appellants now make was made upon the precursor of A.R.S. § 15--501. 5 In Laney, the court held:
'Appellees contend that the provision in this regard unlawfully delegates the power to dismember a union high school district, to electors of a portion of such district. This, we think, involves the power of the Legislature. We know of no constitutional requirement, and none has been called to our attention, making it necessary that all the electors of an organized high school district should give their consent before it is divided, or before some portion thereof is detached and organized into a separate high school district. On the contrary, the rule seems to be, as stated in 35 Cyc. 833, 834:
'The power to organize, establish, or lay off new school districts, or to divide, change the boundaries, or otherwise alter existing districts is vested primarily in the Legislature, which may act without the assent of the inhabitants of the affected territory. And indeed this power on the part of the Legislature has been very frequently exercised in many instances.
The power to establish new school districts or to alter existing ones may be delegated by the Legislature to subordinate...
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