I think the foregoing opinion is demonstrably unsound. It must be conceded that under our statutes before a joint school district can be created, there must be concurrent action on the part of the county superintendents of the several counties affected. That is the plain language of section 1035, Revised Codes. Also, on appeal to the county commissioners of the several counties concurrent action of the several boards of county commissioners is required. (Sec. 1037.2.) Here the facts are that on the appeal the board of county commissioners of Missoula county voted unanimously for the creation of the new district, and the Lake county board voted unanimously against it. Concurrent action does not mean joint action. Compare State ofRhode Island v. Palmer, 253 U.S. 350, 40 Sup. Ct. 588,64 L. Ed. 946; State v. Ceriani, 96 Conn. 130, 113 A. 316. It means action first by the county superintendents, and then by the boards of county commissioners on appeal sitting separately in their respective counties. Concurrent action, as used in the statute, means action of the two boards sitting separately and agreeing to the same result. (Leonard v. Benton County,194 Iowa, 1250, 191 N.W. 141.)
What does each county superintendent consider when the petition is heard? The county superintendent of Missoula county determines whether the creation of the new district will be advantageous and to the best interests of the people residing in that part of the district situated in Missoula county. She does not speak for the people residing in the portion of the district lying in Lake county, and the legislature could not authorize her to speak for them without to that extent destroying our *Page 132 system of local self-government. But the legislature has not attempted to authorize the county superintendent of one county to speak for the people residing in another.
When the petition is considered by the county superintendent of Lake county, an entirely different question is presented from that considered by the county superintendent of Missoula county. The county superintendent of Lake county determines whether the new district will be beneficial and to the best interests of the people residing in that part of the district situated in Lake county, and none other.
And so it is on appeal. Each board speaks only for the territory embraced within its county. It is analogous to the question which arose when Congress and the states were given concurrent jurisdiction to enforce prohibition. The jurisdiction of each state was still confined within its territorial limits. (Ex parte Gilmore, 88 Tex. Cr. 529, 228 S.W. 199.) The effect of the favorable vote by the county commissioners of Missoula county simply gave consent to the division of the old district and the creation of a new district so far as the land situated in Missoula county was concerned. It could not speak for the territory situated in Lake county.
The county commissioners of Lake county, while perhaps willing to agree that the new district would be beneficial to the people of Missoula county, found it was not advantageous to the people of Lake county, and therefore voted against the proposition.
Whether the hearing before the board on appeal is de novo as held in State ex rel. Hall v. Peterson, 55 Mont. 355,177 P. 245, or whether the hearing is in the nature of a review, as my associates seem to hold, is immaterial. If it is de novo, and if the board hears the petition for the creation of the district as the statute provides, then clearly the board in Lake county has voted against the creation of the district. If the board simply reviews the action of the county superintendent, then in the instant case the board of commissioners of Lake county simply reviews the action of the county superintendent of Lake county, and not the action of the county superintendent of Missoula *Page 133 county. It overruled the action of the county superintendent of Lake county. In either case, under section 1024, Revised Codes, the board's decision, so far as Lake county property is concerned, is final.
The proposed new district has not the favorable concurrent action of the boards of county commissioners of the two counties affected, and hence does not exist as a new district. The contention that on the appeal to the county boards, there was a tie vote, resulting in no action, cannot be sustained here. That would have been true had the statute provided for a joint hearing. (Compare Schumaker v. Edington, 152 Iowa, 596,132 N.W. 966.) At this point it is interesting to note that the recent legislative assembly had before it House Bill No. 241, designed to make the action of the two boards joint instead ofconcurrent as the statute now provides, but the legislature did not look with favor upon the proposed change and hence defeated the bill.
The resulting effect of a tie vote, whatever it may be, has application only in a situation where there is an appeal to a single tribunal authorized to hear the appeal, and where each member of the tribunal considers the same question. Here, it is true that each board considered the same question in a sense, i.e., it considered the question whether a new district should be created, but each board in arriving at its conclusion could weigh its effect upon only a portion of the entire territory affected. That is the reason why the legislature required concurrent rather than joint action. The county commissioners of Lake county have definitely spoken on the only question concerning which they are or were authorized to speak, namely; whether they should consent, on behalf of those living on property affected and situated in Lake county, to the creation of the proposed new district. That board has answered the question in the negative. There is lacking the essential requirement of concurrent action on the part of the two boards.
The legislature has definitely provided that the judgment of the board of county commissioners shall take precedence over that of the county superintendent. To hold that a new district *Page 134 has been created here would be to give greater effect to the order of the county superintendent than to the decision of the board of county commissioners as to the people residing on the property affected and situated in Lake county, contrary to the express terms of the statute.
My associates rely upon the case of Weasel Head v.Armstrong, 99 Mont. 364, 43 P.2d 243. The most that that case held was that the order of the county superintendent creating the district is merely suspended on appeal. Conceding that such is the case, it lost its vitality when the Lake county board, considering the identical question before the county superintendent, reached a contrary conclusion. The board's decision under the statute was final.
I attach no importance to the fact that the two boards here actually met jointly and not separately. The decision of the Lake county board, though sitting jointly with the Missoula county board, was just as efficacious in registering disapproval of the new district as if made while sitting separately. The method of voting did not and could not have influenced the result. (Schumaker v. Edington, supra.)
The proposed new district, whatever its status pending the appeal, was lifeless when the Lake county board decided against its creation. To me the question is as simple and the result as certain, as the arithmetical statement that three from three leaves nothing. The fallacy of the conclusion arrived at by my associates rests mainly in the fact that they fail to distinguish between concurrent and joint action. The point may perhaps better be illustrated by a supposititious case. Let us say that three counties are involved and the only action taken was by the county superintendents. Two of them favored the new district; the third did not. There was no appeal. My associates would say that there was a new district because a majority of the three favored it. My conclusion would be that there would be in that situation no new district as proposed, because it lacked concurrent action on the part of the three county superintendents of the three counties affected. *Page 135
Furthermore, I think my associates have reached the wrong conclusion even though we assume that concurrent action means joint action. Under section 1024, Revised Codes, the petition for the creation of a new district is first made to the county superintendent. If no protest be filed, then the county superintendent, after hearing, shall "make an order establishing the new district and describing the boundaries thereof, or make an order denying such petition." It then provides than an appeal may be taken to the board of county commissioners from either order of the county superintendent. It provides that "upon the hearing of said matter by the board of county commissioners, a decision shall be rendered which shall be final." It provides that upon the appeal being perfected, the county superintendent shall transmit to the board of county commissioners and file in the office of the county clerk "the notice of appeal and all petitions, plats and papers in his possession pertaining to the petition for the creation of such new school district." The county clerk is required to give notice of hearing, which notice shall be "to the effect that the board of county commissioners will * * * finally hear and determine said appeal and saidpetition for the creation of such new district."
It is my opinion that when an appeal from the superintendent's order was made to the boards of county commissioners the matter stood for trial de novo before the county commissioners on the issue of whether a new school district should be created, and that the order of the county superintendents had by the appeal spent its force and in effect was wiped out by the appeal. This question, under a statute providing for an appeal in practically the same language as is found in section 1024, came before this court in State ex rel. Hall v. Peterson, 55 Mont. 355,177 P. 245, 248. The only substantial difference between the statutes involved in that case and the present statutes is that under the statutes in the Hall Case the petition was first presented to the board of trustees of the school district and successive appeals were provided for, first to the county superintendent, and then to the county commissioners. *Page 136 In speaking of the contention that the board of county commissioners did not have authority to create new school districts, the court in the Hall Case said: "But this denial of power is refuted by the section itself. Upon appeal under section 405 [Chap. 76, Laws of 1913] from the decision of the board of trustees to the county superintendent of schools, the latter does not act as a court or judge sitting for the review of errors, but takes the matter presented by the petition and tries it de novo upon the merits; the board of county commissioners, in considering an appeal from the county superintendent of schools, likewise tries and determines the matter de novo upon the merits, and not as a court or tribunal for the correction of errors. Upon such appeal, plenary power is thus vested in the board of county commissioners to create a new school district, and its decision is declared to be final. The sole question to be decided by each tribunal or officer is: `Shall the proposed new district be created?'" To the same effect are Carpenter v.Leatherman, 117 Ark. 531, 176 S.W. 113; Munn v. School Tp.of Soap Creek, 110 Iowa, 652, 82 N.W. 323; Stephens v. SchoolDistrict, 104 Ark. 145, 148 S.W. 504.
If the decision in the Hall Case is still the law of this state, then District No. 8 has not been legally created even though the hearing on appeal is to be a joint hearing. When the order of the county superintendents was appealed from, the hearing before the county commissioners was de novo and the matter stood before them for trial anew and not for the purpose of review only.
Contention is made that the rule in the Hall Case has been changed by later opinions. In Grant v. Michaels, 94 Mont. 452,23 P.2d 266, 270, this court made reference to theHall Case and said: "In State ex rel. Hall v. Peterson, supra, this court declared that, under section 405 of Chapter 76, Laws of 1913, the board of county commissioners on appeal was `vested with plenary power' to create a school district. The law as it then existed merely declared that an appeal might be taken to the board of county commissioners `whose decision shall be final;' it contained no suggestion of a hearing. Whether or not *Page 137 the Hall decision would justify arbitrary action on the part of the board is not now of any consequence, as the present law (Chapter 138, Laws of 1927) provides that, upon transmission of the records and notice of appeal to the county clerk, the latter `shall, forthwith * * * give notice to all parties interested * * * that the Board of County Commissioners will (at a designated time and place) finally hear and determine said appeal and said petition,' and `upon the hearing * * * a decision shall be rendered which shall be final.'" This court then held that no hearing as contemplated by the statute was held by the county commissioners, and, therefore, that the order was a nullity. In effect, since no hearing was held by the county commissioners, and since the time for the hearing as provided by statute had long since expired, the case reaches the same conclusion as if no appeal had been taken to the county commissioners from the county superintendent's order.
The case of Weasel Head v. Armstrong, supra, is relied upon by my associates, in which it was held that the district (being the same one involved in Grant v. Michaels, supra) was created as of the date of the county superintendent's order. Since the county commissioners held no hearing as required by statute (Grant v. Michaels, supra), and since the time for holding a hearing under the statute had expired, the case stood as if no appeal had been taken to the county commissioners, in which case, and for that reason, the conclusion in the ArmstrongCase was correct. In the Armstrong Case this statement was made: "A new school district can only be `created' by a county superintendent of schools on compliance with the provisions of section 1024, Rev. Codes 1921, as amended by Chapter 138 of the Laws of 1927 (section 1)." This statement is obviously incorrect. In other words, if under section 1024 the county superintendent denies the petition for the creation of a new district, then on appeal to the county commissioners that board has the clear right under the statute upon a proper hearing to create the new district notwithstanding negative action by the county superintendent. If that were not so, there would be no purpose in providing for an appeal. In such a situation *Page 138 the county superintendent's order is not merely suspended pending the appeal; it is entirely abrogated by the appeal, and the original question comes before the county commissioners, whose decision shall be final. The statute, section 1024, is clear that what the commissioners hear is "the petition for the creation of such new district."
My associates rely upon the Weasel Head Case as authority for the proposition that the appeal merely suspends the order of the county superintendent. In the Weasel Head Case that statement was made by way of dictum, but it was not intended to be declared as a principle of law in this jurisdiction, as will appear from the language immediately following, wherein it was said: "This rule is salutary, and might well be enacted into law in this state; but, even if we were to hold that the statute justified a holding that the order creating the district would not be effective until the time for appeal had expired or an appeal had been taken and determined, such holding would not solve the problem before us." Hence it is clear that the WeaselHead Case did not decide the point relied upon by my associates. If it did, there would have been no occasion for the suggestion that the rule "might well be enacted into law in this state."
Since an appeal was taken from the order of the county superintendents, that order was nullified by the appeal and the entire matter was submitted on appeal to the concurrent action of the county commissioners of Missoula and Lake counties. The question before them was, "Shall a new district be created?" The situation is analogous to that of an appeal from a justice court judgment. The rule is well established that such an appeal nullifies the judgment appealed from. The late Chief Justice Brantly in Hosoda v. Neville, 45 Mont. 310, 123 P. 20, 21, in speaking for the court on the effect of an appeal from a justice court judgment in a criminal case, said: "The result of the appeal was to abrogate the justice's judgment." In Bullard v. McArdle, 98 Cal. 355, 33 P. 193, 194, 35 Am. St. Rep. 176, the court in speaking of an appeal from a justice court judgment, said: "By perfecting the appeal *Page 139 from the justice's court, the case was entirely removed from that court, and only the superior court had thereafter jurisdiction in the matter. The judgment in the justice's court was not merely suspended, but by the removal of the record was vacated and set aside. (Thornton v. Mahoney, 24 Cal. 569; People v.Treadwell, 66 Cal. 400, 5 P. 686.) When the effect of an appeal is to transfer the entire record to the appellate court, and to cause the action to be retried in that court, as if originally brought therein, as is the case when appeals are taken from a justice's court upon questions of law and fact, the judgment appealed from is completely annulled, and is not thereafter available for any purpose."
In Bank of North America v. Wheeler, 28 Conn. 433, 73 Am. Dec. 683, the court said: "The effect of that appeal depends upon the character of the jurisdiction of that court. If, by the laws of New York, a case carried before it by appeal is to be retried by it as upon original process in that court, and it has jurisdiction to settle the controversy by a judgment of its own, and to enforce that judgment by its own process, the appeal, like an appeal under our statutes from a justice of the peace to the superior court, would vacate the judgment of the inferior tribunal. (Curtis v. Beardsley, 15 Conn. 518.)" To the same general effect is Campbell v. Howard, 5 Mass. 376.
The effect of the appeal under the statute here was to bring the petition before a different tribunal for trial anew, i.e., as if no other proceeding had been taken. (School District v.Asher School District, 168 Okla. 282, 32 P.2d 897.) The burden of proof before the boards of county commissioners rested with petitioners for the creation of the new district. (Woolsey v. Nelson, 43 Okla. 97, 141 P. 436.) They failed to sustain that burden by satisfying that tribunal (if it be considered as one tribunal sitting jointly) that the petition should be granted and the new district created. Their decision under the express terms of the statute was final. Hence, it seems to me, it logically follows that no new district was created. To hold that one was created is to nullify that part of the statute which makes the decision of the county commissioners superior *Page 140 to that of the county superintendent, and amends the statute by judicial construction by making the county superintendent's order final unless set aside on appeal. I agree emphatically with the statement in the majority opinion that it is the duty of the courts to give effect to the will of the legislature and not to defeat that will.
I express no opinion on the other questions treated in the majority opinion, but rest my disagreement with the majority upon what I think is the most flagrant error. I may say, in passing, that I have no quarrel with the case of State ex rel. Arthurs v. Board of County Commrs., 44 Mont. 51, 118 P. 804, announcing the rule that the performance of a duty resulting from an office and especially enjoined by law, may be compelled by mandamus even though the time within which it should have been performed has elapsed. To apply the rule here will accomplish amazing results. The order of the county superintendents purporting to create District No. 8, and which, according to my associates, accomplished the creation of the district, was made on February 3, 1938. The application for the writ here sought was filed on July 29, 1938. It seeks a mandatory order commanding the respondents to consider the 1938 budget and to levy taxes to provide for the budget requirements for that year. As I understand the majority opinion, it requires the respondents at this time, March, 1939, to levy taxes one-half of which should have been due and payable on November 30, 1938, and which evidently have ever since been delinquent. Whether that can be done at this late hour, I express no opinion.