39 Neb. 391 | Neb. | 1894
This was a proceeding before the county superintendent of schools for Polk county under the provisions of section 4, subdivision 1, of the general school law (ch. 79, Comp.
“ Osceola, January 12, 1892.
“A verbal notice being given me by Thomas Record, that a petition would be presented to me praying that sections 17 and 18, or parts thereof necessary to give school privileges to petitioners of school districts 10 and • 56, Polk county, Nebraska, be detached from said districts and annexed to school district No. 34 of Polk county, Nebraska, the 18th day of January was set for hearing said petition. W. E. Kepner,
“County Superintendent.
“January 18, the day set for hearing said petition. The petition was presented, but not having all names desired on petition, I set January 19 as time for hearing said petition and prayer. W. F. Kepner,
“County Superintendent.
“January 19, the day set for hearing said petition, the following named persons, viz., Thomas Record, Joseph Rosine, N. P. Johnson, appeared with petition signed by Joseph Rosine, Anna Rosine, Milo Austin, Ellena Austin, Neis P. Johnson, Josephine (her x mark) Johnson. The substance and prayer of the petition was as follows:
“We, Neis P. Johnson and Josephine Johnson, Alma Johnson, Mabel Johnson, Emil Johnson, and William Johnson, and we, Ellena Austin and Milo Austin, parents of Clide Austin, Charles Austin, Yinnie Irene Austin, Alice Austin, Thomas Isaac Austin, and we, Joseph Rosine and Annie Rosine, parents of Irene Edith Rosine, and I, J. H. Coleman, parent of Chatta Coleman, would request that you attach to the adjoining district No. 34 sections 17 and 18 in districts 10 and 56, or so much thereof as you may deem necessary for the purpose of giving said children school privileges, for the following reason: A stream flowing through districts 56 and 10, known as the ‘Blue River,’*393 makes it impracticable for their children to attend school in said districts, the school houses being on the north side of stream and they living on the south side of said stream.
“ The undersigned persons, after being duly sworn before me, statéd that the above statements are true and correct.
“Thomas Record.
“ Joseph Rosine.
“N. P. Johnson.
“After due consideration of petition and prayer, I find in favor of petitioners, and that the cause is a just one, and hence the following decision :
“Osceola, January 19, 1892.
“ Joseph Rosine and Annie Rosine, Milo Austin, Ellena Austin, Neis P. Johnson and Josephine Johnson having certified before me this day that the Blue river makes it impracticable, during the wet season of the year, for their children to attend school in their own districts, Nos. 10 and 56 of Polk county, Nebraska, therefore, according to section 4, subdivision 1, of School Law, I have detached the following portion of land from district No. 56 of Polk county, Nebraska: E. of sec. 17, and from district No. 10 of Polk county, Nebraska, W. J of sec. 17, E. J sec. 18, and and E. J of N. W. -j- and E. of S. W. J of sec. 18, all of which is in twp. 13, range 2 W., and joined the same to district No. 34 of Polk county, Nebraska.
“W. F. Kepner,
“ County Superintendent.
“January 30, 1892. Appeal bond filed and approved, and notice of appeal filed. W. F. Kepner,
“ County Superintendent.”
From this order in favor of the petitioners an appeal was taken by district No. 10 and certain resident taxpayers therein. A trial was had in the district court and judgment entered substantially in accordance with the prayer'of the petition, whereupon the cause was brought into this court for review by means of a petition in error.
It will be observed that the law as thus amended, and which is still in force, in express terms prohibits any change in the boundaries of school districts except upon
The several provisions cited, when read together, are susceptible of but one construction, viz., that the notice mentioned in the third paragraph of the section is an essential condition to the exercise of the jurisdiction conferred upon the county superintendent to change the boundaries of school districts. This case is therefore within the rule stated in State v. Compton, 28 Neb., 491, and Dooley v. Meese, 31 Neb., 428. Quite applicable in this connection is the language of the court in the last named case: “In controversies in regard to the boundaries of school districts, where it is sought to change the same, it must appear that the preliminary steps were taken not only by the presenta
Reversed.