In the month of October, 1929, certain petitions purporting to be signed by a majority of the qualified voters of school districts Nos. 34 and 36 were presented to the county superintendent of Carter county, requesting the calling of an election for the purpose of organizing the territory comprising those school districts into a consolidated school district. The county superintendent declared the petitions to be sufficient and called an election as prayed for. From that order an appeal was attempted to the board of county commissioners. The county superintendent disregarded the appeal and proceeded to hold the election. He declared a consolidated district organized under the name of Woodford consolidated school district No. 36. The cause came on for trial before the board of county commissioners, and, after a trial de novo, that board held that the election was improperly called for the reason that the petition presented to the county superintendent from school district No. 34 was not signed by a majority of the legal voters of that district. The board of county commissioners made an order to that effect. Thereafter Woodford consolidated school district No. 36 and certain individuals filed a petition for a writ of certiorari in the district court of Carter county. Neither school district No. 34 nor school district No. 36 were made parties to that action, possibly for the reason that the plaintiffs therein contended that those districts had ceased to exist by reason of the organization of the consolidated school district, which was one of the plaintiffs in that action. The district judge made an order requiring the board of county commissioners and the county clerk to certify the record to that court. That record was filed in that court, and that court, after a hearing, over the objection of the defendants in that action, reversed the order of the board of county commissioners. An appeal was taken to this court by the defendants in that action. The appeal was by transcript from an order overruling the demurrer to the petition, from an order overruling the motion to dismiss the action, and from the judgment of the trial court on the merits.
The defendant in error contends that there was no right of appeal to the board of county commissioners from the order of the county superintendent holding the petition for consolidation to be sufficient; that if there was such a right of appeal, it was by reason of section 7781, R. L. 1910, and that no notice of appeal, as therein provided, was given.
A determination of the issues in this case will require a review of the history of the school legislation of this state.
By the provisions of article 1, ch. 79, Statutes of Oklahoma 1890, township, city, and town schools were provided for, and it was provided that, where the school population was sufficient, four schools should be established in each township, the township schools to be under the control of the township *Page 229 board and one person elected at large. The township and the towns were the units for school purposes.
In 1893 the school system was changed from township organization to district organization. School District Nos. 5 and 8 v. School District Nos. 6 and 7, 11 Okla. 72, 65 P. 939. By the provisions of section 5760, Statutes of Oklahoma 1893, it was made the duty of the county superintendent to divide the county into a convenient number of school districts and to change such districts when the interest of the inhabitants thereof required it. That section authorized any person interested to appeal to the board of county commissioners from the action of the county superintendent. By the provisions of section 5767, Statutes of Oklahoma 1893, it was provided that if, in the formation or alteration of, or refusal to form or alter school districts, any person or persons should feel aggrieved, the person or persons might appeal to the board of county commissioners. Section 5760, supra, was a part of the article relating to the duties of the county superintendent, and section 5767 supra, was a part of the article relating to school districts. Those sections were similar, and the question arises why they were both adopted.
When the Code was revised by the adoption of the Revised Laws of 1910, section 5760, supra, as it has been amended and as it was changed by the codifiers, was carried forward as section 7701 thereof, and section 5767, supra, as it has been amended and as it was changed by the codifiers, was carried forward as section 7781 thereof.
We find an answer to the question in the decision of this court in Woolsey v. Nelson, 43 Okla. 97, 141 P. 436. This court therein had under consideration sections 7701 and 7781, supra. It held that the duties of the county superintendent under the provisions of section 7701, supra, were limited to acts in the formation of districts in the first instance, or in simply changing the boundary lines of districts thereafter: that that officer was not authorized, under that section, to wholly dissolve any district, or to form a new district by consolidating two or more districts into one, and that under the provisions of section 7781, supra, authority was conferred upon the county superintendent, not only to change the boundary lines, but to alter any district.
In School District No. 17 v. Zediker Co. Supt., 4 Okla. 599,47 P. 482, the litigation arose out of the action of the county superintendent in attempting to change the boundaries of a number of school districts, and section 5760, supra, was under consideration. Therein it was contended that when a school district had once been formed, it became an incorporated body over which the people of the district had control, and that there could be no change in the boundaries except when, by reason of the topographical or physical conditions, it was in the interest of the people to change the boundaries. This court thought that construction to be too narrow. It held that a school district is but a subordinate agency, a creature of the Legislature, which the Legislature might create or abolish, or the boundary of which it might change without consulting the inhabitants. It held that the statutes authorized the county superintendent to make changes without regard to the topographical and physical conditions, if the interest of the inhabitants of the county required such changes to be made, and that the clause of the statute relating to topographical and physical conditions was intended to be merely directory. It therein held that the powers conferred upon the county superintendent by the section were judicial in their nature and required the exercise of judicial discretion.
In School District No. 44 v. Turner, 13 Okla. 71, 73 P. 952, it was held that the county superintendent had no power or jurisdiction to change the boundaries of an organized school district, by detaching a portion thereof and by forming and creating thereby a new district, until a petition had been duly presented to him, as required by the statute, and that where a county superintendent acted arbitrarily and without such a petition and notice, an injunction was the proper remedy. It was therein said that the statutory requirements were clear, positive and mandatory and left no discretion to the county superintendent, and that the action of the county superintendent, in proceeding before a proper petition had been filed and statutory notice had been given, was an arbitrary exercise of power, wholly unauthorized, and, therefore, absolutely null and void. The opinion does not state why injunction was approved as a proper remedy when an appeal was authorized, but it shows that no petition had been presented to the county superintendent. Since no petition had been presented, and since the county superintendent was without any authority to proceed, that court evidently thought that injunction was a proper remedy and that it was not necessary to resort *Page 230 to appeal. That rule as to injunction was applied in School District No. 44 v. Turner, supra, and School District No. 17 v. Eaton, Co. Supt., 97 Okla. 177, 223 P. 857. This court, in a number of instances, has held that quo warranto would not lie. Smith v. State ex rel. Berry, Co. Atty., 84 Okla. 283,203 P. 1046, and King v. State ex rel. O'Reilly, Co. Atty.,83 Okla. 297, 201 P. 641. The rule as to the invalidity of the action of the county superintendent, where no petition had been filed, has been followed by this court in Smith v. State ex rel. Berry, Co. Atty., supra; King v. State ex rel. O'Reilly, Co. Atty., supra; School Dist. No. 44 v. Turner, supra; Cleveland v. School Dist. No. 79, 51 Okla. 69, 151 P. 577; Gregg v. Hughes, 89 Okla. 168, 214 P. 904; School Dist. No. 17 v. Eaton, Co. Supt., supra; Consolidated School Dist. No. 72 v. Board of Education, 113 Okla. 217, 242 P. 173; Chandler. Co. Supt., v. Barber, 113 Okla. 222, 241 P. 145; Weathers v. Liebhart,129 Okla. 185, 263 P. 1108; School Dist. No. 9 v. Bd. of Com'rs,138 Okla. 254, 280 P. 807, and School Dist. No. 65 v. Bd. of Com'rs, 148 Okla. 5, 296 P. 483.
In Wade, Co. Supt., v. Eakin, 31 Okla. 640, 122 P. 176, the right of appeal to the board of county commissioners was sustained. It was held that that right existed, not only from the action of the county superintendent, but from his refusal to act.
Under the provisions of section 1, art. 13, and section 5, art. 1, of the Constitution, the Legislature is required to establish and maintain a system of free public schools, wherein all of the children of the state may be educated, and which shall be open to all of the children of the state.
The territorial statutes were carried forward into this Code by the provisions of section 2 of the Schedule of the Constitution.
Article 13, ch. 74, R. L. 1910, relates, in part to the organization of consolidated school districts. Section 7880, a part of that article, provides that in all matters relating to consolidated school districts, not provided for in the preceding sections, the laws relating to school districts shall be in force where said laws are applicable. Under that provision, section 7781, supra, was applicable to the formation of consolidated school districts, and an appeal was authorized thereby to the board of county commissioners from an action of the county superintendent in the formation of a consolidated school district, and from the action of the board of county commissioners thereon to the district court.
Such was the effect of the decision of this court in Board of Com'rs v. Worrell, 33 Okla. 390, 126 P. 785. Therein it was found that while the Legislature had provided, in terms, for the formation of consolidated school districts, it had not provided, in terms, for the changing of such districts. Therein it was held that the laws relating to school districts applied to consolidated school districts and authorized the county superintendent to change the boundaries thereof, although no specific provision therefor had been made by the Legislature. That rule was followed in Evinger v. Duke, Co. Supt.,43 Okla. 79, 130 P. 147. Therein this court said:
"The proposition involved is solely a question of statutory construction. If the statute as construed by this court in Board of County Com'rs of Garfield County v. Worrell supra, does not in the minds of the Legislature sufficiently meet the demands of the public in the organization, maintenance, and alteration of consolidateed school districts, that body is now in session and the defects of the statute as construed can be remedied by additional legislation."
In State ex rel. West, Atty. Gen., v. Balzer, 43 Okla. 200,141 P. 777, the same question was presented, and this court therein called attention to the fact that after the statute had been construed, as aforesaid, the Legislature had re-enacted section 7880, supra, as section 8, art. 7, ch. 219, Session Laws 1913. This court said that in the reenactment of the section the Legislature was presumed to have known the construction which the former statute had received by this court and to have adopted that construction. Therein it was pointed out that a consolidated school district is a part of the common school system, a subordinate agency of the state, and subject to the common school law, and that that conclusion was sustained by a legislative construction, the title of the 1913 act, supra, being "An Act prescribing laws for the government of the common schools of Oklahoma; and repealing conflicting laws," and that act providing for consolidated school districts. It is evident that the Legislature considered consolidated school districts to be common schools, and that construction must be given, else the provisions of chapter 219, S. L. 1913, with reference to consolidated schools must fail as not being included within or germane to the title of the act.
We follow that rule and hold that the *Page 231 laws relating to school districts apply to consolidated school districts where those laws are applicable and where no specific provision has been made for consolidated school districts.
As we have pointed out, section 7880, supra, was re-enacted as section 8, art. 7, ch. 219, S. L. 1913. The 1913 act, supra, was an act prescribing laws for the government of the common schools of Oklahoma and repealing conflicting laws. We must look to the provisions of that act to determine what effect it had on the provisions of section 7701, supra, and section 7781, supra. Section 11, art. 2, of that act was a re-enactment of section 7701, supra, in effect, the changes therein being immaterial to any issue presented in this case. That section was amended by chapter 223, S. L. 1919. In so far as the issues in this case are concerned, that amendment made no substantial change in the provisions theretofore made. Article 7 of the 1913 act, supra, was, in effect, the re-enactment of the provisions of R. L. 1910 with reference to the consolidation of school districts, the changes thereby made being immaterial to any issue presented in this case. The 1913 act, supra, did not include the provisions of section 7781, supra. It provided for the establishment of consolidated school districts by action of the voters of any two or more adjacent school districts or parts thereof and the procedure therefor. As a part of the procedure it required a petition to the county superintendent, the calling of a meeting, notice thereof, and an election.
In Cleal v. Higginbotham, 49 Okla. 362, 153 P. 64, it was held that under the 1913 act, supra, there was no provision for an appeal to the board of county commissioners from the action of the county superintendent, or to the district court from the action of the board of county commissioners, for the purpose of reviewing the action of the people themselves in creating a consolidated school district. In a number of subsequent decisions a similar statement was made, among which was Board of Education v. McCracken, County Assessor, 62 Okla. 173,162 P. 782. Therein it was held that an appeal would lie to the board of county commissioners from an order of the county superintendent and that an appeal would not lie from the order of the board of county commissioners to the district court. The effect of that decision was to hold that the provision of section 7781, supra, authorizing an appeal from the order of the board of county commissioners to the district court, had been repealed by implication by the 1913 act, supra, as to the right of appeal to the district court.
In King v. State ex rel. O'Reilly, Co. Atty., supra, it was held that section 8, art. 7, ch. 219, S. L. 1913, and section 7781, supra, authorized an appeal from the action of the county superintendent calling an election for the purpose of forming a consolidated school district. Therein this court said:
"The general rule, however, is stated in 15 Cyc. 319, as follows:
" 'The presentation of such petition is a condition precedent to holding an election and it must be signed by the number of qualified persons prescribed by the statute, otherwise the election will be void.'
"This court in several cases has announced this general principle of law, to wit: School District No. 44 v. Turner,13 Okla. 71, 73 P. 952; Cleveland v. School District No. 79,51 Okla. 69, 151 P. 577. But in these cases there was no issue whether, if a petition was presented and the county superintendent found it contained the number of qualified persons prescribed by statute, said question would be subject to be reviewed in a collateral proceeding."
The court held that section 8, art. 7, ch. 219, S. L. 1913, and section 7781, supra, when construed together, authorized an appeal from the action of the county superintendent to the board of county commissioners and that the board of county commissioners should determine the sufficiency of the petition that had been filed with the county superintendent on appeal. The same rule was stated in Smith v. State ex rel. Berry, Co. Atty., supra. That holding was in direct conflict with the holding in Cleal v. Higginbotham, supra.
In School District No. 39 v. School District No. 20,119 Okla. 292, 249 P. 690, it was said that the language used in King v. State ex rel. O'Reilly, Co. Atty., supra, was "purely dictum," although in that case it was held that the action of the board of county commissioners on appeal from a ruling of the county superintendent was final. Evidently the language criticized was with reference to an appeal from an order of the board of county commissioners to the district court, and not that with reference to an appeal from an order of the county superintendent to the board of county commissioners, for the effect of that decision was to sustain the right of appeal from an order of the county superintendent *Page 232 to the board of county commissioners. In that case the court said:
"The court properly held in that case that an appeal lay from the action of the county superintendent to the board of county commissioners and that was sufficient for the purposes of the opinion."
In King, Co. Supt., v. State ex rel. Gossett, Co. Atty.,126 Okla. 130, 258 P. 755, the holding in King v. State ex rel. O'Reilly, supra, was followed.
We think that we have cited enough decisions of this court to show that they are conflicting. We are of the opinion that it is necessary for this court to determine the issue presented by this record without regard to the former decisions of this court.
As stated in State ex rel. West, Atty. Gen., v. Balzer, supra, the organization and conduct of consolidated school districts imposes a much greater burden upon the taxpayers of such districts than is imposed by the organization and conduct of what is commonly known as common school districts. By the enactment of the 1913 act, supra, did the Legislature intend that a consolidated school district might be organized without a right of appeal from the action of the county superintendent in calling such an election, when the petition therefor is insufficient and not in conformity with the legislative requirement therefor, when a right of appeal was granted from the action of the county superintendent in changing the boundary of the common school district even though the changing of the boundary thereof is but slight?
As hereinbefore stated, an action of a county superintendent in calling an election for the consolidation of two or more school districts is null and void, unless a proper petition has been filed, as required by the statute. We are not convinced that the Legislature intended to abolish a long existing right of appeal to the board of county commissioners from such an order of the county superintendent.
The 1913 act, supra, was a new act by which a school code was provided. The two provisions of the 1893 act were no longer necessary. Every county had been divided into a convenient number of school districts. The Legislature doubtless thought it unnecessary to carry forward both of those provisions. Doubtless it thought that but one provision authorizing an appeal from the action of the county superintendent in calling an election for the purpose of changing school districts was all that was necessary.
After a review of the decisions of this court and of the statutes, we are of the opinion and hold that the Legislature intended, by the 1913 act, supra, to authorize an appeal to the board of county commissioners from the action of the county superintendent, in calling an election for the purpose of consolidation of two or more adjacent school districts, in the same manner and by the same provision that it authorized an appeal from the action of the county superintendent in changing the boundaries of a common school district.
We, therefore, hold that the provision of section 7781, supra, authorizing an appeal to the board of county commissioners from the action of the county superintendent in determining the sufficiency or insufficiency of a petition for the consolidation of two or more adjacent school districts or parts thereof, was not repealed by the 1913 act, supra; that the provision thereof authorizing an appeal from the action of the board of county commissioners to the district court was repealed by implication by that act, and that section 6771, O. S. 1931 (section 10321, C. O. S. 1921), authorizes an appeal to the board of county commissioners from the action of the county superintendent in determining the sufficiency or insufficiency of a petition for the consolidation of two or more adjacent school districts or parts thereof into a consolidated school district.
It is contended that the board of county commissioners is in no wise affected or injured by the judgment rendered by the district court of Carter county, and that it has no interest in the matter which entitles it to an appeal from that judgment. In support of that contention the defendant in error cites Eastwood v. Clinkscales, 82 Okla. 52, 197 P. 455; Baker v. Vadder, 83 Okla. 140, 200 P. 994, and Newbern v. Farris,149 Okla. 74, 299 P. 192. Those decisions are not controlling. The correct rule is stated in 11 C. J., p. 218, sec. 401. See cases therein cited. We quote the second paragraph of the syllabus in Moede v. County of Stearns, 43 Minn. 312, 45 N.W. 435, as follows:
"The board of county commissioners, as the representative of the public, to whom is intrusted the matter of forming school districts, may appeal from an order of the district court reversing their action in establishing a new district."
In that case that court said:
"In support of the second ground, counsel urges that the county board is not a party to the certiorari the writ being merely directed to them to bring their proceedings for review; that the board is not a party aggrieved, *Page 233 having no interest in the subject involved, — likening the case to one where the judgment of a court is reviewed on certiorari, in which it is uniformly held that the court or judge whose judicial action is reviewed and reversed is not interested in the result, and hence cannot appeal, not being a party aggrieved. But, in our judgment, the cases are not all analogous. The court or judge in the case supposed has no representative capacity, but is merely the tribunal by whom the rights of others have been determined. But the board of county commissioners is the representative of the county or public, to which is intrusted the matter of forming new school districts, and uniting, dividing, or changing the boundaries of old ones, as public interests require. The public has a special interest in the establishment and preservation of these districts, and we think that the board of county commissioners, to whom that matter is intrusted, is, as the representative of the public in that regard, a party interested in and aggrieved by the order of the court reversing and setting aside their action, and therefore has the right of appeal."
Such is the rule in this state. The Legislature has provided for a review of the action of the county superintendent by the board of county commissioners and that the decision of that board shall be final. Upon that board has been placed the responsibility and that board represents the public and is a party interested and aggrieved by the order of the court reversing and setting aside its action. It has the right of appeal in the instant case.
It is urged that the cause is moot by reason of the election having been held and the consolidated district having been organized. We cannot agree with that contention. While the appeal was pending from the order of the county superintendent to the board of county commissioners, there was no authority to conduct such an election, and when the board of county commissioners, reversed the action of the county superintendent, the actions taken in the organization of the consolidated school district were ineffective and void. The organization of a consolidated school district is dependent upon the filing of a proper petition signed by the required number of qualified electors. The language of the statute is clear, positive and mandatory and leaves no discretion to the county superintendent. The organization of a consolidated school district before a proper petition therefor is filed is wholly unauthorized and an attempted organization thereof is null and void. When the board of county commissioners found and determined that the petition was insufficient, that order operated to nullify any and all of the actions taken leading up to the consolidation.
It is contended herein that no notice of appeal was given. It does not appear that that contention was made before the board of county commissioners and it was not made in the petition for certiorari. It cannot be presented to this court for the first time.
It is contended that the Thirteenth Legislature recognized the absence of a statute providing for an appeal when it enacted House Bill No. 98. We do not agree. House Bill No. 98 provided for an appeal from the order of the county superintendent to the county court. Thereby the former procedure for an appeal to the board of county commissioners was changed to provide for an appeal to the county court. That act in no wise indicates that there was no statute providing for an appeal to the board of county commissioners.
It is contended that the judgment roll is insufficient to sustain the contentions of the plaintiff in error. The judgment roll shows that the district court was without jurisdiction to review the action of the board of county commissioners. The board of county commissioners had jurisdiction to hear the Appeal from the order of the county superintendent, and that is shown by the judgment roll. A writ of certiorari, as used in this jurisdiction, brings up for review the sole question whether the inferior tribunal has kept within or exceeded its jurisdiction. Smith v. Wells, 153 Okla. 25, 4 P.2d 734. No motion for new trial was necessary to present the record by transcript, and, while all of the contentions of the plaintiff in error cannot be sustained from the transcript, the contention that the petition for a writ of certiorari did not state a cause of action is amply supported by the transcript.
The judgment roll shows that the board of county commissioners found that the petition for consolidation was insufficient. That action was final if that board had authority of law to make it. The board of county commissioners had authority and jurisdiction to make the finding and order. Its determination thereof was not subject to review by the district court in a proceeding in certiorari. That fact was disclosed by the petition for certiorari. That petition did not state a cause of action and the defects therein were not cured by the attempted amendment.
The judgment of the trial court is reversed and the cause is remanded to that court, with directions to dismiss the action. *Page 234
RILEY, C. J., CULLISON, V. C. J., and SWINDALL, McNEILL, OSBORN, BUSBY, and WELCH,, JJ., concur. BAYLESS, J., absent.
Supplemental Opinion on Rehearing.