222 P. 1064 | Mont. | 1924
delivered the opinion of the court.
This is an appeal from a judgment of the district court of Richland county dismissing and discharging a writ of review issued on petition of the appellant. It appears that on September 2, 1921, the county superintendent of schools of Rich-land county, without notice, made an order that school district No. 88 be abandoned and the territory embraced therein attached to school district No. 86, both districts being in said county. Thereafter on January 20, 1922, F. J. Matoushek, as attorney for L. J. Crippen, a school trustee of the district so abandoned and a resident taxpayer therein, addressed a letter to the state superintendent of public instruction, at Helena, wherein he stated: “It appears by chapter 106 of Session laws of the Sixteenth Legislative Assembly that you are required to ‘decide all appeals from the decision of the county superintendent’ and to ‘prescribe and cause to be enforced
Reply thereto was made by the respondent on February 3, 1922, wherein she stated: “In regard to the form in which your appeal from the decision of the county superintendent should be made I wish to state that in the few appeals which have been made to this department since I have been in this office, each side of the controversy has set forth in complete and clear form its reviews of the case and the opinion rendered by the individual having previous authority. I shall be glad to have you submit all evidence in the matter that you desire. It will not be necessary for anyone to appear in person, I believe.”
On the last-mentioned date the respondent addressed a letter to the county superintendent of schools, Mrs. Emogene Leetra, wherein it was stated: “It appears an attorney of Sidney, Mr. Matoushek, is going to appeal from your decision regarding the discontinuance of one of your school districts and is going to submit to me in writing all of his evidence against its discontinuance. I wish you would put in 'proper form your side of the case outlining the history of it from the beginning. I shall retain on file the two letters of Mr. Crippen to add to your statement when it is received.”
On February 8, 1922, the county superintendent addressed, a letter to the respondent in reply, wherein explanation is made as follows: “In re, declaring school district No. 88 an abandoned district and attaching it to school district No. 86 known as the Lambert school district, the reason for the abandonment and annexation of said school district No. 88 to
The order made by the county superintendent complained of, and to which reference is made in her explanatory letter to the respondent of February 8, 1922, is as follows: “Whereas, it satisfactorily appears to the county superintendent of schools of Eichland county, Montana, that no school has been held in school district No. 88, Eichland county, Montana, for two consecutive years; and it further appearing to the satisfaction of said county superintendent that there is no immediate prospect of the need of a school in said district; and it further appearing to said county superintendent that school district No. 86 adjoins and lies contiguous with the said school district No. 88: It is therefore hereby declared and ordered, that the said school district No. 88 is an abandoned school district, and that the territory embraced in said abandoned school district, be, and the same is hereby, attached to the said school district No. 86; and it is further ordered, that all funds of said abandoned district be placed in the general school funds of the county after all debts of the said abandoned district have been paid."
No further action having been taken by L. J. Crippen in the contemplated appeal to respondent herein, on February 25, 1922, the respondent addressed a letter to the county superintendent of schools reading as follows: “I wish to advise you that I have considered very carefully the question of the annexation of district No. 88 to the Lambert district and believe that district No. 88 will be in no way injured by such annexation. I, therefore, wish to express to you my approval of the action you have taken.”
Thereafter, on or about March 10, 1922, L. J. Crippen made and filed with the respondent in writing a formal appeal from the order of the county superintendent made on September 2, 1921, as aforesaid, supported by his affidavit corroborated by that of one John J. Carey. As grounds of appeal it is set forth: “(1) That at the time the said order was made there was not, nor is now a foundation of facts warranting the making of such order in that it conclusively appeared from the official files and records of Richland county, Montana, pertaining to the said school district No. 88 and particularly from the records of the said county superintendent of schools of Richland county, Montana, and still does now appear, and the facts are that said school district No. 88 did, within a period of two years immediately preceding the said 2d day of September, 1921, duly and regularly keep open, maintain and operate its school, employ teachers, pay teacher’s salary and other legal accounts and obligations, send children to school and pay for their attendance, hold meetings of its school trustees, and otherwise keep the said school district No. 88 functioning and in existence in accordance with the laws of the state of Montana, as will more fully appear by the
Thereafter the respondent received a letter from L. J. Crippen, dated May 11, 1922, purporting to give facts in support of his appeal to respondent, and a letter bearing date May 15, 1922, from the county superintendent of schools wherein the latter states: “In re the abandonment of school district No. 88, on February 22 I received a letter from you saying that you approved of my action in declaring school district No. 88 an abandoned district. I, accordingly, divided the funds among the other districts. Later I was informed by their attorney, Mr. F. J. Matoushek, that they had appealed the ease. They claimed that they held a school election, as usual. We have no record of it in our office; no ballots nor minutes of the meeting were sent in. On April 26 I ordered Mrs. Cooley to turn over her clerk’s books to the clerk of S. D. No. 86, Mr. Edwin F. Whedon. While this matter has been pending, Mr. F. J. Matoushek asked me for an order on the treasurer to pay him $100.00 for lawyer’s fees. Mrs. Cooley, the clerk, also presented a bill, asking $25.00 for her services as clerk during the past year. I refused to sign the
On June 22, 1922, the county superintendent submitted a detailed statement of all the facts in the case to the respondent, and thereafter on January 13, 1923, a letter was addressed by the respondent to E. J. McCullough, the successor of Mrs. Lectra, as county superintendent, reading as follows: “I am writing to advise you that my decision in the ease of the appeal of Mr. L. J. Crippen against the transfer of district No. 88 to the Fairview district is that district No. 88 could not be abandoned, legally, as was done by the former county superintendent of Richland county, owing to the fact, that school had been maintained in the district within a period of two years before the consolidation was made by the county superintendent.”
The letter of E. J. McCullough, dated January 19, 1923, written in reply to respondent’s letter of January 13, 1923, announcing her decision in the case, indicates the complications giving rise to the petition made to the court for a writ
The only question presented is whether the respondent acted in excess of jurisdiction in making her second order in the premises. This must be determined from the record returned in obedience to the writ, from which the above recital of facts is made.
The Revised Codes of 1921 provide:
Section 955: “The county superintendent shall have the general supervision of the public schools in his county.”
Section 956: “He shall carry into effect all instructions of the state superintendent given within his authority.”
Section 966: “He shall decide all matters in controversy arising in his county in the administration of the school law or appealed to him from the decision of school officers or boards. An appeal may be taken from his decision, in which case a full written statement of the facts, together with the testimony and his decision in the case, shall be certified to the state superintendent for his decision in the matter, which decision shall be final, subject to adjudication of the proper legal remedies in the state courts.”
From the facts it appears to us that respondent’s letter of approval of the order of the county superintendent, dated February 27, 1922, is not a decision on appeal such as is contemplated by the statute. It is merely an informal letter of approval of the action of the county superintendent from facts at hand shown from correspondence. Later a formal appeal was presented to the respondent in the matter for decision in conformity with such rules as respondent had promulgated. 'This brought the subject to the attention of respondent for the first time formally on appeal, and she was in no way debarred by what had gone before from receiving evidence and determining the questions thus presented to her for decision.
In the absence of express provision in the statute as to who may appeal, it must be held that the right of appeal is given to any person beneficially interested. We think L. J. Crippen showed himself sufficiently interested, being a member of the board of school trustees of district 88 and a resident taxpayer therein. (State ex rel. Bean v. Lyons, 37 Mont. 354, 96 Pac. 922.) Had he done no more than to show that he was a taxpayer in school district No. 88, in our opinion it would have been sufficient.
No time being fixed by statute within which such appeals may be instituted, and respondent having made no regulations on the subject, we are of opinion, and so hold, that the ap
Appeal to the state superintendent having been made by Crippen, the county superintendent having appeared, and the respondent having entertained jurisdiction thereof, objection now advanced on the ground of want of right vested in Crippen to appeal and delay in perfecting the same comes too late. All appeared and consented to respondent’s jurisdiction in the premises, and the decision made is not now vulnerable to attack by the parties to the proceedings on the appeal.
We think it was incumbent upon the appellant to show affirmatively that the respondent acted without jurisdiction, and, in the absence thereof, her jurisdiction and regularity of the proceedings will be presumed. As is well stated by Professor Mechem in his excellent work on Public Offices and Officers: “The well-known presumption of the law that public officers have acted within their jurisdiction, and have pursued and observed the limits set by law to their authority, applies
“Where authority to establish or alter school districts is delegated to subordinate agencies or officers, provision is made by statute in many jurisdictions for appeals from their action. But in the absence of statute authorizing it the courts will not interfere with the action of school trustees and like officials in forming or altering school districts, unless fraud, corruption, oppression, or gross injustice is clearly shown; and where by statute an appeal is provided for from one official or set of officials to another the same rule applies as to reviewing the actions of the latter.” (35 Cyc. 835.)
The statute is plain, and from the language thereof the jurisdiction of the respondent to entertain and determine the controversy is beyond question. Appeals in such matters involving the administration of the public schools have been conferred by the legislative assembly exclusively upon the state superintendent of schools, and so long as she acts legally and within the power expressly conferred the courts will not interfere. (24 R. C. L. 575.)
Nothing said in this opinion is to be so construed as to foreclose the rights of bondholders against the property of the school districts attempted to be consolidated, nor of third parties claiming vested rights, if any there be. The laxity of the proceedings taken by both the county and state superintendents impel us to thus safeguard the effect of this decision.
The judgment is affirmed.
Affirmed.