Nicklaus v. Goodspeed, 108 P. 135

Nicklaus v. Goodspeed

108 P. 135 | Or. | 1910

Mr. Justice McBride

delivered the opinion of the court.

1. The objection to the proof of posting notices of the proposed change is untenable. Section 3365, B. & C. Comp., as amended by Ses’s. Laws 1903,- p. 125, provides that the district boundary board may “at its discretion, upon petition of three or more legal voters interested, change or divide the districts of its county;” and the same section, as Amended, provides that the superintendent “shall cause to be posted,” etc., notices for the proposed change. The notices posted as shown by the record were signed by the superintendent. The affidavit of posting was filed in his office and he is ex officio a member and secretary' of the district boundary board. When he presented these notices and the proof of posting them, the boapd had sufficient evidence to justify it in finding that he had caused them to be posted, especially in the absence of any statute expressly requiring such proof to be made in any particular manner, or, indeed, at all.

2. The second objection is more serious, and for a proper understanding of the matters involved it will be necessary to consider certain provisions of the statute:

(1) The county school superintendent and the county judge and commissioners constitute a board for dividing the county into convenient school districts. Laws 1907, p. 193.

(2) The district boundary board in its discretion may, upon the petition of three or more legal voters, change or divide the districts of its county. Section 3365, B. & C. Comp., as amended in 1903 (Laws 1903, p. 125).

*187(3) When any organized school district within the State of Oregon shall for any reason cease to maintain a public school for two years, or shall for two years cease to contain at least six children of school age, then all moneys in the hands of the district clerk or board of directors shall be turned over to the district boundary board, and it shall be the duty of such district boundary board to take care of the money and other property for the term of three years thereafter, and if, during that time, such district shall maintain a public school therein, and shall contain a.t least six children of school age, then the boundary board shall surrender the money, and other property to the legal directors of the district. Laws 1907, p. 194, § 4.

The same section also provides that, upon failure of the district to comply with the provisions above set forth, it shall become unorganized territory and cease to be a district.

The record of the proceedings of the board shows that plaintiff, his wife, and another property owner in district .No. 50, filed affidavits, showing that if the proposed change is made there will remain only four children of school age in district No. 50. There is no countershowing nor any finding that contradicts these affidavits. Neither is there anything in the record showing that the board heard any testimony upon the subject. The manifest effect of the proposed change, therefore, would be to deprive the four children of plaintiff of the benefit of a school and eventually to disorganize the district. While we are willing to concede the wonderful productiveness of Tillamook County, we must take conditions as we find them, and will not speculate on the probability that other children may be born or arrive at school age in time to save the district from final dissolution. There is no power granted to the district boundary board to abolish or destroy a district, and where such power is not granted it does not exist. School District v. Palmer, 41 Or. 485 (69 Pac. 453.) What the board cannot do directly, it *188cannot do indirectly. Some emphasis is laid on the word “discretion,” as used in the statute in connection with the powers granted the board, but discretion and arbitrary power are far from being synonymous terms. “Discretion, when vested in an officer, however, does not mean absolute or arbitrary power. The discretion must be exercised in a reasonable manner, and not maliciously, wantonly, and arbitrarily, to the wrong and injury of another. Taylor v. Robertson, 16 Utah, 330 (52 Pac. 1.) In the case at bar, while we do not question the good intent of the board and their desire to do justice in the premises, we are satisfied that the effect of their decision is to deprive the.children of plaintiff of the privilege of attending a public school in their own district, and eventually to abolish the district; and that it was not an act governed and regulated by a sound discretion, but arbitrary and unjust.

The decree of the circuit court will be reversed and the action of the district boundary board set aside.

Reversed.