State ex rel. Shull v. Clary

| Neb. | Jan 15, 1889

Cobb, J.

This is an original application for a mandamus to compel respondent, who is county superintendent of Otoe county, to divide school district No. 66, in said county, and to erect a new school district. The relator sets forth the condition of said district, the number of sections and subdivisions of sections which it contains, the number of children of school age residing therein, the amount of assessed value of property therein, and other matters tending to show the necessity of such division and the erection of' the district contemplated. Also the proceedings, consisting of the signing of a petition of more than one-half of the-leading voters of the district praying for such division, which presentation of the petition to such superintendent was made after the proper notice, as provided by statute, and a list of the legal voters of the district affected,, together with the oath of a resident of the district that the-legal notice provided by law had been properly posted,, which was also given to the superintendent of the county at the time of presenting the petition praying for the division of the district, together with all other necessary proceedings for the purpose of giving said superintendent jurisdiction, and of imposing on him the duty of dividing said district, and tending’ to show the public convenience and propriety of such division. And that the superintendent refused to divide said district as prayed for, with an application for peremptory mandamus, and for relief.

The respondent answered, admitting the presentation of the petition, in the month of March, 1888, to divide said district No. 66; that it was signed by one-half the whole-number of voters, but was not signed by two-thirds of the-voters of the district; and that, after hearing all of the parties, going over all the grounds, and investigating the-whole matter, he refused to divide the same, because, in. his judgment, the petition ought not to have been granted,, on account of the inequality of the number of scholars in the old and new district, as well as other considerations not important to follow for the purposes of this opinion.

The cause was argued and submitted as on demurrer to-the answer. Two questions are presented for the decision of this court: First, Is it the duty of a county superintendent to divide a school district, and erect a new district out of a portion thereof, upon a petition of one-half of the whole-number of legal voters of the original district? Second, When an application to do an official act is made to any tribunal, board, or officer inferior to the district court, from whose action or refusal to act appeal lies to the district court, and such tribunal, board, or officer makes investigation, takes deliberation, and thereupon refuses to grant the action, order, or judgment applied for, will mandamus lie to this court to compel action favorable to the applicant?

Counsel for the relator, in his brief, contends that, as the petition for the division of the district was signed by a majority of-the legal voters, there was no discretion left to the county superintendent, but that on the presentation of the petition, and the taking of the other steps provided by statute, as in the case at bar, it became his imperative duty to 'make the division. In support of this he cites the statute of 1883, Sec. 4, that, “New districts may be formed from other organized districts under the following conditions only: First, The county superintendent shall have discretionary power to change the boundary of any school district, or to form, a new district from one or more districts, on a petition signed by a majority of the legal voters i n each district affected. Second. The county superintendent shall not refuse to change the boundary lines of any district, or to organize a new district, when he shall be asked to do so by a petition from each district affected, signed by two-thirds of all the voters in such district;” and the amendment of the same act, of 1885, that, “it shall be the duty of the county superintendent to create a new district from other organized districts, upon a petition signed by one-half of the legal voters in each district affected. Second. The county superintendent shall have discretionary power to change the boundary of any district upon petitions signed by one-third of the legal voters in the district affected. Third. The county superintendent shall not refuse to change the boundary line of any district, or to organize a new district when he shall be asked to do so by a petition from each school district afA-cted, signed by two-thirds of all the legal voters in such district.” Counsel contend that while under the statute of 1883 it was a matter of discretion on the part of the superintendent to make such division, on the petition of one-half of all the legal voters, that under the amendment of 1885 such discretion Avas taken away, and it thenceforward became his absolute duly to make it. The statute of 1883 by the first clause gave to the superintendent discretionary poAver “ to change the boundary of any school district, or to form a neAV district from one or more districts, on a petition signed by a majority of the legal voters in each district affected.” Under the second clause it provides that, “ he shall not refuse to change the boundary lines of any district, or to organize a neAV district Avhen he shall be asked to do so by a petition from each district affected, signed by two-thirds of all the legal voters in such district.”

The amended statute of 1885 divides these poAvers and duties into three clauses: First’, “to create a new district from other organized districts upon a petition signed by one-half of the legal voters in each district affected.” Second, the exercise of discretionary poAver to change the boundary of any district upon the petition of one-tliird of the legal voters of any district affected; and Third, that he shall not refuse to change the boundary line of any district, or to organize a new district, Avhen he shall be asked to do so by petition from each school district affected, signed by tAvo-thirds of all the legal voters in such district. We here have it made the duty of the superintendent to perform certain acts, under certain conditions, Avhich, under the act of 1883, he had the discretionary power to do, or not to do, at his pleasure. But, in its Avisdom, the legislature added the further provision that he should not refuse to perform this official act under circumstances and upon conditions somewhat different. In the case of conflicting provisions of statutes, courts will seek to reconcile their terms, if possible, so as to give some effect and meaning to the provisions of each. There can be no doubt that it was the intention of the legislature-to make it the imperative duty, one which the superintendent is equally forbidden to refuse, to change the boundary line of any district, or to organize a new district, when he shall be asked to do so by petition from each school district affected, signed by two-thirds of all the legal voters of such district. Now would the legislature have framed this provision with the earnestness and care which seem to have attended its construction, after having already made it the duty of thé same officer to perform the same official act upon a petition signed by but one-half the legal voters of each district affected? A consideration of the third clause inclines one to the opinion that the word “duty,” as used in the first clause, must be construed to mean rather a judicial discretion, than as duty to be enforced by the authority of mandamus.

Section 580 of the code provides that, “a judgment rendered, or final order made, by a probate court, justice of the peace, or any other tribunal, board, or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated, or modified by the district court.”

In the case of the State, ex rel. Donovan, v. Palmer, 18 Neb., 644" court="Neb." date_filed="1886-01-15" href="https://app.midpage.ai/document/state-ex-rel-donavan-v-palmer-6644669?utm_source=webapp" opinion_id="6644669">18 Neb., 644, an application for mandamus to compel the school board of district No. 7, of Colfax county, to permit the children of the relator to attend the public school,. Mr. Justice Maxwell, in delivering the opinion of the court, said: “To secure efficiency in the system, the school districts and schools of each county are placed under the general supervision of a county superintendent. He is invested with power, upon proper petitions being filed in his office, to create, divide, or change a school district or districts, and if he acts within the scope of his authority his orders are not subject to collateral attack. No doubt such an order is final within the provisions of section 580 of the code, and subject to review.”

The comity superintendent may, wilhout violation' oi language or logic, be held to be an officer exercising judicial functions, within the language of the section of the code mentioned, and such is the holding of the court in the case referred to. As we have seen in considering the first point, it was the intention of the legislature to confer upon such officer a judicial power coupled with a duty.

By the language of the first clause of the section under consideration, the signing of the petition, as stated by the relator, conferred' upon said superintendent jurisdiction of the matter as set out in the answer. He entered upon the examination aud consideration of the subject thus presented, but juridicially determined against the prayer of the petition. This presented a proper case, to the aggrieved parties, for appeal to the district court. That being the case, under the authority and precedent of Brown v. The County of Otoe, 6 Neb., 111" court="Neb." date_filed="1877-10-15" href="https://app.midpage.ai/document/brown-v-commissioners-6642273?utm_source=webapp" opinion_id="6642273">6 Neb., 111, and other subsequent cases, the remedy by appeal must be held to be exclusive, and the writ applied for must, therefore, be denied.

Writ denied.

The other judges concur.