School District No. 1 v. Wheeler

| Neb. | Jul 15, 1888

Reese, Ch. J.

This action was commenced in the district court of Red Willow county, and is for an injunction to restrain the county superintendent from apportioning any part of the state apportionment to district number seventy-two, of said county, and to restrain the county treasurer from paying any such apportionment to the officers of said district.

It is alleged in the petition that plaintiff, district number one of Red Willow county, is duly organized under the laws of the state, that defendant, William S. Wheeler, is the duly elected county superintendent, and that the defendant, William Doyle, is the duly elected county treasurer; that on or about the tenth day of January, 1886, the said district number one contained certain territory which is described in the petition; that about the date named, the county superintendent made an order taking from the said school district a portion of the territory included within its boundaries, and also taking from district number seventeen and district number forty-six a portion of the territory included within the boundaries of said districts, and of the territory thus detached he created and established district number seventy-two; that the petition signed by the legal voters of district number one, upon which the county superintendent acted in making the division, was not signed by one-half of the legal voters of said district; that a petition of one-half of the legal voters of district number forty-six was never presented to the county superintendent, nor of one-half of the legal voters of district number seventeen.

2. It is alleged that the division was made without authority, and that it causes great and irreparable injury to the plaintiff, by depriving it of its share in the semi-annual apportionments, and by causing the school-house in said district number one, of the value of $700, which was constructed near the center, to be now near one side thereof, and that, by the division, plaintiff will be deprived of its revenues and of its ability to maintain schools, to the extent that it could do were the district not divided.

To this petition the defendants demurred, the ground of the demurrer being, in substance, that the petition did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff declining to amend its petition, the cause was dismissed.

The controlling question involved, in this case is, can the school district, as a corporation, maintain the action? This was decided in Cowles v. School District No. 6 of Jefferson County, at the January term of this court for the current year, and is reported in the 23d Neb., at page 655.

The point was thoroughly examined in the opinion, written in that case by Judge Cobb, and we deem it unnecessary, and, in fact, quite imprudent, to undertake to improve upon his discussion of the question. It must be ■deemed sufficient to say that it was there held that all questions concerning the division of the district belong solely to the electors residing within the district, and that the school district, as a corporation, or quasi corporation, ■has been vested with neither power nor duty in the matter, nor has any district officer, board, or school meeting, and therefore the corporation cannot maintain an action of the kind here presented.

The judgment of the district court is affirmed.

Judgment affirmed.

The other judges concur.