83 Kan. 186 | Kan. | 1910
Lead Opinion
The opinion of the court was delivered by
This is an appeal from the district court of Butler county. The controversy arises from a change of the boundary lines of a joint school district. Application was made by the voters of district No. 110, Which is a joint district, lying partly in the county of Butler and partly in the county of Sedgwick, and also by the voters of district No. 100, which lies wholly within Butler county, requesting that a part of the lands compassing district No. 100 be taken from that district and added to district No. 110. The application Was made to the superintendent of Butler county, who, after a conference with the superintendent of Sedgwick county over the telephone, proceeded to give notice that the application would be considered at El Dorado, in Butler county, on the 17th day of September, 1909.
At the appointed time the superintendent of Butler bounty was present, but the superintendent of Sedgwick county did not attend, being unable to leave home. 'The superintendent of Butler county heard all that was presented for and against the proposed change. He did
“To W. H. McDaniel, county superintendent of Butler county, Kansas; J. W. Swaney, county superintendent of Sedgwick county, Kansas; school district No. 110 (joint district); school district 100 in Butler county, Kansas; M. L. Arnold, county clerk of Butler-county, Kansas:
“You and each of you are hereby notified that we,, the undersigned, appeal to the board of county commissioners of Butler county, Kansas, from the decision rendered by the above-named W. H. McDaniel, superintendent of public instruction of Butler county, Kansas, and J. W. Swaney, superintendent of public instruction of Sedgwick county, Kansas, on the 23d day of September, 1909, altering and changing the boundary line of school district No. 100 in Butler county, Kansas, by detaching from said school district the following-described territory, to wit [here follows a description of the land], and attaching said land to school district No. 110; and said school district No. 100 feels, aggrieved at said decision, and the action and decision of W. H. McDaniel, superintendent of public instruction of Butler county, Kansas, and J. W. Swaney,. superintendent of public instruction of Sedgwick county, Kansas, for the following reasons: [Stating-reasons.]
“Wherefore, . . . appellants ask that their appeal be sustained, that the pretended decision of W. H. McDaniel and J. W. Swaney ... be reversed and!*189 annulled, and that said territory be allowed to remain as a part of school district No. 100. Dated this first day of October, 1909. School District No. 100.
By Charles Walker, Treasurer.”
No other appeal was taken. The two county superintendents and the officers of district No. 110 were proceeding to make the changes specified in the order, and this action of injunction was commenced against them. The petition recited in substance the foregoing facts. A trial to the court was had and a perpetual injunction granted.
The only tribunal authorized by statute to change the boundaries of a joint district is the superintendents of the several counties interested in the district, acting jointly, and if any person shall feel aggrieved at the action taken such person may appeal to the state superintendent of public instruction. No other appeal is contemplated. (Laws 1879, ch. 158, § 1, Gen. Stat. 1909, § 7398.)
The appeal attempted to be taken in this case was to the board of county commissioners of Butler county. This board has jurisdiction over appeals taken from the county superintendent who changes the boundary lines of districts lying wholly, within the county of which he is an officer. It has no jurisdiction, however, over appeals taken from an order changing the boundary line of a joint district, made by the superintendents having charge of such matters.
It may not be assumed that because the interests of district No. 100 are affected by the order made by the joint action of the superintendents having control of the joint district, and because district No. 100 is wholly within Butler county, that an appeal may be taken to the county commissioners of that county for the purpose of reviewing such order. This can not be done. An appeal must take up for review the whole subject matter acted upon by the tribunal from which the appeal is taken. In this case the effect which the order had upon district No. 10Ó was merely incidental to the
Application was made to the proper tribunal to change the boundaries of joint district No. 110. That tribunal acted upon the application presented to it. It had jurisdiction of the subject matter. Notice of its action was duly given, and no appeal was taken therefrom to any proper tribunal having authority to review the action taken. No other remedy is provided. The plain and adequate remedy provided by law for such cases not having been employed, injunction may not be invoked.
The injunction proceedings are reversed and set aside.
Dissenting Opinion
(dissenting) : I concur in the ruling that an appeal from the joint action of several county superintendents changing the boundaries of a joint school district must be taken to the state superintendent, but I am of the opinion that in the hearing and decision of the application for a change the superintendents of Butler and Sedgwick counties did not act jointly within the meaning of the law and that the order made was without force. The two superintendents did act jointly in giving notice of the meeting when interested parties would be heard and the application for a change considered and decided. A hearing was had at the time and place specified, but the superintendent of Butler county alone attended the meeting. It is true that he afterward consulted with the superintendent of Sedgwick county, who appears to have concurred in making the proposed change, but this
