163 P.2d 414 | Kan. | 1945
The opinion of the court was delivered by
This is an original action in mandamus wherein the plaintiffs ask us to order the state superintendent of public instruction to consent to the annexation of certain territory to a rural high-school district. We issued an alternative writ. The defendant filed a motion to quash. The cause was submitted on this motion. Such a motion is equivalent to a demurrer.
The action was originally brought in the name of Joint Rural High School District M & L No. 1. It should be noted that this
“A copy of the decision of the State Superintendent is hereto attached, that the Court may see the reasoning whereby he reached his decision and the plaintiffs say that his said decision is not in accordance with law. It is inaccurate and speculative and not based on facts. He discusses the minimum size of a Rural High School district, but he fails to mention the fact that this same law requires a two million dollar valuation or if there is a High School building, a one million, two hundred and fifty thousand dollar valuation, all of which has nothing to do with the law of this case.”
The petition then contained allegations in which plaintiffs objected to the mánner in which the state superintendent arrived at the conclusion reached and refers to G. S. 1935, 72-3514, and alleged that the duty of the state superintendent thereunder upon appeal was ministerial and the superintendent had no discretionary or judicial powers; that the only duty the county superintendent had was first to determine that the proposed territory was adjacent to a rural high-school district and then determine if a majority of the resident electors had signed petitions for annexation; that plaintiffs had no adequate remedy at law. At the time the state superintendent made his decision to refuse to consent to this annexation he wrote a memorandum opinion. A copy of this opinion was attached to the petition.
When the suit was filed we issued an alternative writ. The defendant filed a motion to quash it on the grounds that the plaintiffs had no legal capacity to sue; that neither the writ nor the motion therefor stated facts showing that the plaintiffs were entitled to relief and that the action was brought for the purpose of compelling the defendant to perform discretionary acts. Before the case came on for final submission to the court on proper motion the state was made a party on motion of the plaintiffs endorsed by the county attorney of Mitchell county so the question of the legal capacity of the original plaintiffs to bring the action went' out of the case.'
The section of the statute pursuant to which these proceedings were had is G. S. 1935, 72-3514. That section provides, in part, as follows:
“Territory outside the limits of any rural high-school district, but adjacent*529 thereto, may be attached to such high-school district for high-school purposes, upon application being made to the rural high-school board by a majority of the electors of such adjacent territory, and upon the approval of said rural high-school board and the consent of the county superintendent of public instruction: Provided, That an appeal may be taken from the decision of the county superintendent to the board of county commissioners, if such property proposed to be attached is within one county, and to the state superintendent of public instruction if same be within two or more counties, whose respective decision in either case will be final . .
It will be seen that this statute provides for the annexation of new territory to a rural high-school district under certain conditions. Where the territory is all in one county annexation is brought about by securing petitions signed by a majority of the electors of the proposed territory followed with the approval of the rural high-school board and the consent of the county superintendent of public instruction. The statute, it will be noted, then provides for an appeal to the county commissioners. Obviously this means an appeal by either party, that is, by the people who want to see the territory annexed or by the people opposed to it. The lawmakers knew that there were certain situations such as the one we have here where the territory which some district wished to annex would be in two or more counties. It would hardly do to have the appeal lie to the county commissioners of one of these counties so the legislature provided that the appeal should lie to the state superintendent of public instruction in cases where the territory is within two or more counties, as is the case here.
Plaintiffs argue that the state superintendent had no authority to exercise any discretion in the matter; that the matter of approving the annexation of the territory was purely a ministerial act and that once compliance with the statute was shown, that is, that there was a sufficient number of signatures on the petitions and the territory lay outside of any regularly organized district, then there was nothing for the county superintendent in the first instance or the state superintendent on appeal to do but approve the annexation. That argument, however, runs counter to a reasonable interpretation of the language of this act. In the first place, the act provides that territory may be attached upon application being made by the majority of the electors of the proposed territory but the statute goes on and makes an additional condition, that there must be the approval of the rural high-school board. No one would argue but that there would have to be the approval of the high-school board as
The plaintiffs cite and rely on, State, ex rel., v. Mowry, 119 Kan. 74, 237 Pac. 918. In that case a county superintendent had attempted to detach territory from one district and attach it to another under the provisions of G. S. 1935, 72-3509. Without going into the facts at length it is perfectly clear that the decision of the county superintendent in that case was set aside because the court held that his acts wrere actuated by malice and so arbitrary and capricious as to be tantamount to fraud. On account of the arguments of plaintiffs in this respect the allegations of the petition here have been set out somewhat at length.- We have examined these allegations and nowhere in the petition do the plaintiffs allege either malice or arbitrary or capricious conduct on the part of the state superintendent.
There are many decisions to the effect that the decisions of an administrative officer or board may be set aside by the courts when he is guilty of being capricious or acting in an arbitrary manner
Plaintiffs ask us to set aside the action of the state superintendent of public instruction because he examined writings of witnesses who were not present and did not permit the witnesses who were there to be cross-examined by counsel who represented the proponents of the adoption of the proposed territory and because he reached a different conclusion than counsel for plaintiffs think should have been reached from the evidence and facts that were considered by the superintendent. Once we have reached the con- , elusion that the use of the words “approval”'and “consent” as used in the section under consideration vests the officers referred to with discretionary powers we are led to the conclusion that we will not disturb the decision of the state superintendent of public instruction. In State, ex rel., v. Storey, 144 Kan. 311, 58 P. 2d 1090, we considered G. S. 1935, 72-3501 and 72-3502. G. S. 1935, 72-3501, conferred .on the state superintendent of public instruction the power to approve or disapprove the organization of a proposed rural high-school district where the land lay in two or more counties. The trial court had held that this statute was unconstitutional because it conferred on the state superintendent legislative power. We pointed out that the formation of school districts was a governmental function which was properly under the supervision of the state superintendent of public instruction. See article 6, section 2 and article 6, section 1 of the state constitution. In cases where boards and officials are charged with the duty of investigating and determining what is best to be done under a particular situation the tribunal or official is not required to conduct the examination into the matter under the strict rules of evidence that are required for courts. In that case we said:
“We agree with appellee that the questions considered by the state superintendent of public instruction, as shown by his testimony, pertain to the prudence or advisability of establishing the joint rural high-school district, with its proposed boundaries, were legislative in character, but they pertained also to the educational interests of the state, and particularly to the educational interests of those who would be immediately affected by the organization of the new school district.”
The statement applies with equal force to this case. The state superintendent of public instruction is charged with the duty of