Swezey v. Fisher, 44743

• Decision Date: 27 April 1971
• Docket Number: No. 44743,44743
• Citation: 484 P.2d 501
• Parties: Norman D. SWEZEY et al., Petitioner, v. Leslie R. FISHER, State Superintendent of Public Instruction, State Board of Education of the State of Oklahoma et al., Respondents.
• Court: Oklahoma Supreme Court

Page 501

484 P.2d 501

Norman D. SWEZEY et al., Petitioner, v. Leslie R. FISHER, State Superintendent of Public

Instruction, State Board of Education of the State

of Oklahoma et al., Respondents.

No. 44743.

Supreme Court of Oklahoma.

April 27, 1971.

Syllabus by the Court

Appeal authorized by 70 O.S.Supp., § 7--1(d), (Laws, 1968), which does not contain the signatures of twenty-five percent (25%) of the school district electors who were eligible to vote at the annexation election, is ineffective to stay the order of annexation. Upon dismissal of the appeal for insufficient number of eligible electors joining therein, the judgment of the District Court dismissing the appeal relates back to the date on which the order of annexation was issued by the County Superintendent, and such order of annexation is fully effective for all purposes from the date on which it was issued.

Original proceeding to review two orders of annexation which result in intolerable conflict between three school districts. Jurisdiction is assumed and validity of the competing annexation elections is established. Writ is denied.

Sterling Grubbs, Cushing, for petitioners.

Larry Derryberry, Atty. Gen., Larry L. French, asst. Atty. Gen., for respondents Leslie R. Fisher and The State Bd. of Ed.

Ungerman, Grabel, Ungerman & Leiter by Paul R. Weinstein, Tulsa, for respondents Robert L. Huntsinger, Jesse I. Pridgen and C. C. Nunley.

M. J. Ledbetter, Cleveland, for respondent Independent School District No. 6, of Pawnee County.

McINERNEY, Justice.

This is an original action involving competing annexation elections wherein one school district votes to annex itself to a second school district, with the second school district voting to annex itself to a third school district.

On November 24, 1970, the Board of Independent School District No. 3 of Creek County (Mannford) adopted a resolution to annex itself to Dependent School District No. 5 of Pawnee County (Terlton). On November 28, 1970, the County Superintendent of Schools of Creek County issued an election proclamation for December 9, 1970. The electors of Mannford voted to annex to Terlton, and an order of annexation was declared on December 9, 1970.

On November 27, 1970, the Terlton Board adopted a resolution to annex itself to Independent School District No. 6 of Pawnee County (Cleveland). This election was held December 7, 1970, pursuant to an election proclamation issued by the County Superintendent of Pawnee County on November 27, 1970. The electors of Terlton voted to annex to Cleveland, and an order of annexation was declared on December 7, 1970.

In the normal course of events, the Terlton annexation would become effective on December 17, 1970. The Mannford annexation would not become effective until December 21, 1970 because the conclusion of the 10 day protest period following the election fell on a weekend. However, an appeal by twenty-five percent of the school district electors eligible to vote at the annexation election will stay the effective date of the annexation until the District Court renders judgment on the appeal. 70 O.S.Supp.1970, § 7--1(d). A petition purporting to contain the signatures of twenty-five percent of the Terlton electors was filed in the District Court of Pawnee County on December 17, 1970, seeking to appeal the results of the Terlton to Cleveland annexation election. A hearing on the appeal was set for December 18, 1970, and all parties were notified. A complete transcript of the hearing is filed in the present case.

The trial court held that there were 187 qualified electors in the Terlton district. The appeal petitions contained 58 signatures. The trial court found that 15 signatories were not qualified electors. The trial court held that an insufficient number of valid signatures appear on the appeal petitions. The record supports this finding. Twenty-five percent of the electors did not, therefore, appeal the annexation election. The court ordered the appeal dismissed and declared the Terlton order of annexation valid and immediately effective on December 18, 1970. A motion for a new trial was timely filed, and later supplemented. The motion was overruled on January 18, 1971.

Petitioners in this original action are the members of the Mannford Board of Education. They complain that the respondents refuse to recognize and give legal effect to the annexation of Mannford to Terlton. Petitioners seek to have the Mannford annexation election held on December 9, 1970 declared valid and effective, and the Terlton annexation election held on December 7, 1970 declared a nullity. We assume jurisdiction so as to put an end to the existence of an intolerable conflict between a co-ordinate branch of state government. State ex rel. Blankenship v. Atoka County, Okl., 456 P.2d 537 (1969). We decline to grant the relief sought for the reasons to be stated.

Petitioners argument is bottomed on the asserted finality of the Mannford to Terlton annexation during a period when the Terlton to Cleveland annexation remained undecided due to court proceedings. Petitioners cite Independent School District No. JI--69 v. Independent School District No. D-45, Okl., 363 P.2d 835 (1961), popularly known as the Mustang case, and Tryon Dependent School District No. 125 of Lincoln County v. Carrier, Okl., 474 P.2d 131 (1970). The cited cases do not support the proposition advanced by petitioners.

In the Mustang case, supra, the question concerned which school district took title to certain school district property which was left resulting from annexation proceedings involving three separate school districts, all in the same county. An appeal was filed in the District Court and remained pending when the second annexation became final. The opinion noted that an annexation does not become final until the District Court has affirmed the order of annexation or the appeal is dismissed. In the appeal filed challenging the Terlton to Cleveland annexation, the District Court has affirmed the order of annexation and dismissed the appeal prior to the date the Mannford to Terlton annexation became final. The Mustang case is applicable here only to the extent that it announces the rule that a dismissal by the District Court results in finality of the election proceedings being challenged.

In Tryon, two mutually...