Proudfit v. School District No. 49

109 Neb. 173 | Neb. | 1922

Morrissey, C. J.

This is an appeal from the judgment of the district court for Antelope county wherein a joint order of the county superintendent of Antelope county and the county superintendent of Holt changing the boundary lines of certain school districts in a proceeding had under' the provisions of section 6703, Rev. St. 1913, was set aside and decreed to be void.

Two school districts are involved, namely, school district No. 49 of Antelope county, which comprises the school district of the village of Orchard, and the rural school district lying adjacent thereto and comprising territory partially in Antelope county and partially in Holt county. That part of the district lying in Antelope county is designated as district No. 90 of Antelope county, while that part of the territory lying in Holt county is designated as school district No. 90% of Holt county. The purpose of the proceeding was to detach territory from the rural district and attach it to the village school district No. 49 of Antelope county.

The controlling question is that of jurisdiction: ” An affidavit of one Fletcher was filed with the county superintendent of Antelope county in the following language, to wit.; ‘‘I, J. T. Fletcher, a legal voter of school district Nov 49, county of Antelope, solemnly swear that notices of the above petition, containing an exact statement of what changes in the district boundaries are hereby proposed, and when the petition is to be presented to the county superintendent, were posted in three of the most public places in said district; one of said notices was posted upon the outer door of the schoolhouse in said district on the 27th day of January, 1921; one in the lobby of the post office in Orchard, within the district aforesaid, on the 27th day of January, 1921; and one on the bandstand situated on the north side of Second street in the village of Orchard, within said district, on the 27th day of January, 1921, being ten days prior to the time of presenting this petition to the county superintendent.”

There was also filed with the county superintendent of Antelope county the affidavit of one Wilson, a legal voter of school district No. 90, in substantially the same form as the affidavit of Fletcher, except only that it fixed the date of posting the notice as January 24, 1921. Attached to the transcript now before us is a copy of the proceedings had before the county superintendent of Holt county. The affidavit as to posting notice in that county is in the same form as the affidavit heretofore set out and fixed the date of posting as January 24,1921. The petition appears to have been presented February 5, 1921.

The court found that the county superintendent was without jurisdiction to make the order for the change of boundaries “for want of jurisdiction to act, on account of failure of proof of posting notice of the time of presenting petition by voters of school district No. 49, to show that such notice was posted ten days prior to the presenting of said petition.”

Because of this finding by the trial court, appellants reason that the only defect in the record is what is claimed to be a clerical error in inserting the date of posting in the affidavit which states that the notice was posted in district No. 49, January 27, 1921. It is claimed that the true date was January 24, 1921, as shown by the affidavit of Wilson as to district No. 90, and the affidavit filed with the county superintendent of Holt county; that the order appealed from is a joint order made by the two superintendents, and that the affidavit filed before the county superintendent of Holt county must be held to correct any defect or error in the affidavit filed with the county superintendent of Antelope county. It may be doubted if the transcript of the proceeding’s had before the superintendent of Holt county is properly before the court, but we deem it unnecessary to consider that phase of the question.

Subdivision 3, sec. 6703, Rev. St. 1913, under which the proceedings were had provides: “A notice of the petition, containing an exact statement of what changes in district boundaries are proposed, and when the petition is to be presented to the county superintendent, shall be posted * * at least ten days prior to the time of presenting the petition to the county superintendent.” The posting of this notice is jurisdictional. Until this provision of the statute was complied with the county superintendent had no power to change the boundaries of the several school districts. It is claimed by appellant that the notice fixed February 5, 1921, as the date when the petition would be presented, that the notices were posted January 24, 1921, and that the ten days’ notice was in fact given. No copy of the notice appears in the record. The affidavit states that it contained the information as to “when” it would be presented, but it does not say what date was fixed The transcript of the proceedings does not purport to give the date that was fixed. All jurisdictional facts should appear on the face of the record. This being a direct attack upon the proceedings, all steps necessary to cofifer jurisdiction on the superintendent must be shown, to have been taken. Dooley v. Meese, 31 Neb. 424.

There is no reversible error in the judgment of the district court, and it is

Apfirmbd.