I agree with *Page 302 that part of the opinion holding that "the territory affected" does not mean merely that area which was changed from one school district to the other, and I consider it unfortunate that counsel for defendant in error, who rightfully should have prevailed in this case, erroneously insisted upon his own unsupported interpretation to that effect, while the correct construction of the words, as without exception defined by the courts of our sister states, should have enabled him to prevail. The number of signers of the notice of appeal was less than one-fourth of the taxpayers residing in the shifted area, but was also less than one-fourth of the total taxpayers residing in both districts, and for the latter reason this judgment should have been affirmed.
There are a number of reasons why the majority opinion is incorrect and I shall briefly mention them, before calling attention to the unanimity of decisions from other jurisdictions to the contrary of the majority opinion, which authorities the majority opinion attempts to dismiss with the statement that "they are not in point." As I interpret them, these opinions are squarely in point.
Section 6779 provides that if the appeal be from any order pertaining to the boundary of any school district, it may be taken by one-fourth of the taxpayers residing in, not any district affected, nor any territory affected, but in"the territory affected." By the simplest rules of inquiry the problem then is, what is "the territory affected"? The majority opinion, after copying the section, immediately drops the word "the", and, minus such word, proceeds to make the self-evident point that district 62 is "territory affected", and then bases its reasoning throughout on that point. Of course district 62 is "territory affected." District 74 is likewise "territory affected." So is every square foot of land occupied by any resident taxpayer in either district, wherever located, "territory affected." By the same reasoning any one person, being the only resident taxpayer on his own land, which likewise is affected territory, could appeal.
When the statute speaks of "taxpayers residing in the territory affected" it simply means taxpayers residing anywhere in the territory affected by the changing of the boundary. It is obvious that all taxpayers residing in either district are "affected," and it therefore is a self-evident truth that "taxpayers residing in the territory affected" means simply those in district 62 plus those in district 74. One-fourth of such taxpayers will then be one-fourth of the total number of taxpayers residing in both districts, regardless of the district or districts of their residence. (The appeal provided for is not by districts, but by resident taxpayers.) One-fourth of that number is required, and it makes no difference whether they all reside in district 62, or all in district 74, or part in one and part in the other.
The area which is detached from one district and attached to the other may be either a liability or an asset, depending upon the facts of the case. It may be high in taxable value and low in number of children to be transported and educated, in which case it is an asset. Conversely, it may be low in taxable value and high in number of children to be transported and educated, in which case it is a liability. The statute was framed so as to meet either situation.
I further agree with the majority opinion wherein it observes that section 6779 supersedes the former provision for appeals as laid down in section 6771. The former requirement, as conditioned in section 6771, required the notice to be signed by one-fourth of the qualified electors of "any district affected" by such change. The Legislature in that section defined the area as "any district affected" by such change, in words which are definite and clear. But it has changed those words. It now, in section 6779, defines the area as "the territory affected." The majority opinion holds, in effect, that the Legislature still means what it repealed, that is, that "the territory affected" means "any district affected," which is the very language which the Legislature changed, presumably with no intention in the world, according to the majority opinion, other than to convert a definite and certain phrase meaning into one less definite. If the Legislature meant "any district affected," why did it not leave those words in the statute? It so happens that when the Legislature changed the wording of this statute there were a number of cases in the books from other jurisdictions construing the phrase "the territory affected," which construction adopted the obvious and natural meaning of the words, and there was good and sufficient reason for requiring that the appeal be perfected by one-fourth of the taxpayers residing in "the territory affected" as properly construed. But even if such good reason did not exist, it would be improper for this court to substitute its own judgment as to *Page 303 the propriety of the change for that of the lawmaking body. It is well settled that there is no appeal at all in such cases unless it is provided by statute. The conditions of appeal are within the discretion of the Legislature, regardless of whether we may agree with the wisdom or propriety thereof.
It is not for us to say that the Legislature intended one thing, when it very specifically said another. "The territory affected," does not mean "any" territory affected nor any"district" affected. It comprehends one territory, not any territory nor any "district." If a change in boundary between district 62 and district 74 is made, it affects all taxpayers residing in both districts. It may affect them beneficially in one district and detrimentally in the other, or the reverse. Nevertheless the fact remains that they are all affected. If there are a total of 100 taxpayers residing in district 62 and in district 74, they are "the taxpayers residing in theterritory affected." One-fourth of said taxpayers would be 25 taxpayers. Twenty-five of such resident taxpayers, then, regardless of the district of their residence, are necessary for the appeal, according to the plain words of the statute. These truths are self-evident.
As part of its basis the majority opinion relies on the case of Graves v. Bowles, 135 Okla. 109, 274 P. 467. Let us look at that case. One statute involved therein provided that if any party or parties should object to the change of the boundary they should have the right of appeal, while another section provided that one-fourth of the qualified electors of "any district affected by such change may join in an appeal." (The latter section is now changed, see supra.) It was held in that case that since the one section provided that any party should have the right to appeal, and that since appeals are favored, it was not required that one-fourth of the electors residing in any district should join in the appeal, rendering meaningless the latter section. In other words, one person alone could appeal, if he so desired. I leave the merits of such reasoning to the appraisal of those who will take the time to read and properly analyze the case. It needs no comment. For that matter, the majority opinion could have been based on that decision, extreme as it is, and yet fared better at the hands of judicial analysis.
The majority opinion cites a number of decisions from Arkansas, Minnesota, and South Dakota. Those decisions passed upon the meaning of the phrase "the territory affected," or "territory to be affected," by the change of a school district boundary. The majority opinion says that those cases are not in point, "as they do not deal with the right of appeal." It may be conceded that they do not deal with the right of appeal, but they do deal with the question of what is meant by "theterritory affected" by the change of a school district boundary. "The territory affected" by the change of said boundary is of course the territory affected thereby, regardless of whether the question arises in dealing with an appeal, or in dealing with the number of petitioners necessary for such change in the first instance. In those cases, as a condition precedent to the changing of a boundary, a certain fractional part of the number of persons residing in the territory affected by such change were required to petition therefor before the change could be made. In the case now before us a certain fractional part of the number of taxpayers residing in the territory affected by such change are required to join in the notice of appeal before the appeal can be had. Is "the territory affected" by the change in the boundary different in the two cases? Obviously not. The territoryaffected by the change remains the same, regardless of whether we are speaking of the number of signers necessary to obtain the change or necessary to perfect the appeal. The real question is what is meant by the phrase itself, and any such distinction as that attempted by the majority opinion is, as I view it, utterly impossible.
The cases hereinafter quoted all involved construction of the phrase "the territory affected" or the phrase "the territory to be affected" in connection with schools and school district statutes. In some cases the phrase is used, it is true, in connection with statutes providing the number of petitioners necessary to a change in boundary, or to the inclusion of new territory; or with reference to some other form of procedure; nevertheless in all such cases the fact remains that thequestion being considered was what is meant by the words "the territory affected."
7 Words Phrases (3d Series) 446, says:
"The words 'territory affected' embrace the whole of the petitioning district to which lands are attached, and the whole of districts from which lands are detached."
The following is from 3 Words Phrases (4th Series)647: *Page 304
"The 'territory to be affected' includes the entire territory embraced in the districts proposed to be consolidated."
Arkansas, Minnesota, and South Dakota have passed squarely on this question, and a number of other states have adopted the same construction with reference to analogous questions. We are the first to announce the rule laid down by the majority opinion. The South Dakota court in School District No. 74 v. Board of Commissioners, 9 S.D. 291, 68 N.W. 746, observed that:
"To change district boundaries, without affecting more than one district, is impossible"
— and the Minnesota court in Appeal of Common School Districts, etc., 158 Minn. 317, 197 N.W. 742, had the following to say:
"The 'territory affected' in such proceeding has heretofore been practically construed as embracing the whole of the district to which lands are attached and the whole of districts from which lands are detached. School Dist. No. 36 v. School Dist. 31, 134 Minn. 82, 158 N.W. 729. It is here claimed, as it was in the case just cited, that the act of the board was a benefit to the lands in Scott county as the taxable property and the number of the pupils in its district were increased. This line of argument was rejected in School Dist. 36 v. School Dist. 31, 134 Minn. 82, 158 N.W. 729. This argument is based upon the recognized fact that the land in Scott county is 'affected', but not injuriously. Clearly this land in Scott county is affected in the ordinary use of the word. The proceeding acts upon it. It operates on it. The acts concern it. It is impressed by the decision. It may be promoted by it. We think it is 'affected' by it. The land located in Scott county, which is a part of district No. 16, is affected in the same way. Moreover, this land is injuriously affected in this, that a part of district No. 16 is detached and taken away. This would apparently increase the burden on all land remaining in the district."
The Arkansas court, in Consolidated School Dist. No. 2 v. Special School District No. 19, 179 Ark. 822,18 S.W.2d 349, at 351, construing a change in statutes such as we have inthis state (as discussed supra), and particularly discussing what is meant by "the territory affected," said the following:
"As we see it, the language of Act No. 156 is broader in its terms than section 8823, which it amends, and requires, where the change is made in the boundary lines between any school districts formed, a majority, not only of the territory actually to be detached from one and added to the other, but also a majority of the qualified electors in the territoryaffected by the change is required. That, to our mind, is the clear meaning of the words used. Certainly, in this case,district No. 19 would be affected, for by the change of theterritory its revenue would be diminished; district No. 2 wouldbe affected because it would be burdened with an additionalnumber of children to be educated, which might be entirely outof proportion with the additional revenue accruing to it. * * *
"As we have stated, the inhabitants of the strip of territory actually detached from one district and added to the other were not the only ones affected by the prayer of the petition and order of the court, but also the inhabitants of district No. 19and district No. 2."
In Board et al. v. Albritton, 182 Ark. 538,31 S.W.2d 959, in a case where two districts were being consolidated, it was said in the syllabus that:
"The 'territory to be affected' includes the entire territory embraced in the districts proposed to be consolidated"
— and in the body of the opinion the following pertinent pronouncement was made:
"It is agreed in this case that the petition contains a majority of the qualified electors of both of said school districts No. 1 and No 50, but that it does not contain a majority of the qualified electors of school district No. 50. The law requires not that the petition shall contain a majority of each district, but that it shall contain a majority of the qualified electors residing in the territory to be affected. Ofcourse in this case the territory to be affected is the entireterritory embraced in No. 1 and No. 50."
Also see In re Dahlgren, 134 Minn. 82, 158 N.W. 729; Manley v. Moon, 177 Ark. 260, 6 S.W.2d 281, and, in particular, the discussion and cases cited at 56 C. J. 220, notes 35 to 38.
I conclude that the words "the territory affected" mean the whole of both districts, and that an appeal from an order of the county superintendent to the county court, under the provisions of section 6779, O. S. 1931, should be signed by a number equal to one-fourth of the total taxpayers residing in both districts, but that the notice should be regarded as sufficient if it is signed by one-fourth of said total, regardless of the district or districts in which the respective appellants reside. It appears to be conceded by the parties that in number the taxpayers who appealed to the county court were not as many as one-fourth of *Page 305 the total number of taxpayers residing in both districts, and it therefore follows, in my opinion, that the judgment should be affirmed. For these reasons, I dissent from the majority opinion.