As is clearly pointed out in the opinion of the court prepared by Mr. Justice Andrews, the essential question for determination in this action is whether or not an appeal would lie to the board of county commissioners from the action of the county superintendent approving and finding to be sufficient a petition for a meeting or election for the purpose of forming a consolidated school district. The defendants in error here contend that no such right of appeal exists.
In reference to the purported school district consolidation here involved, such an appeal was taken to the board of county commissioners of Carter county. The county superintendent had theretofore found that the petition for consolidation was sufficient. On appeal the board of county commissioners of Carter county held a hearing. At such hearing the parties appeared in person and by their attorneys. The board of county commissioners concluded and determined that the petition for consolidation was not sufficient, that it did not bear a sufficient number of signatures of the voters, and for that reason sustained the appeal. It seems to have been conceded that no appeal would lie from the board of county commissioners to the district court, and none was undertaken.
The defendants in error here then instituted in the district court of Carter county a proceeding in certiorari. The petition for writ of certiorari alleged in substance that the order made by the board of county commissioners of Carter county at a hearing on appeal from the county superintendent was of no force and effect, because no appeal is provided by law from the order of the county superintendent to the board of county commissioners, and the board of county commissioners was without jurisdiction to entertain such purported appeal, and the board of county commissioners acted arbitrarily and in excess of its jurisdiction, if there was any, because the petition for consolidation shows upon its face that it was signed by a sufficient number of voters. The writ of certiorari was issued, and upon final trial in the district court that court found that the allegations of the petition for writ of certiorari were sustained, and overruled the finding and order of the board of county commissioners.
It is a primary contention of the defendant in error that no appeal would lie from the county superintendent to the board of county commissioners. That no such appeal is provided by statute. That the language of the statutes as contained in section 7781, R. L. 1910, and section 11, ch. 219, art. 2, Session Laws 1913, in reference to appeal from the county superintendent to the board of county commissioners, cannot be construed to allow such an appeal as was here sought to be taken from the action of the county superintendent in finding and holding the petition for consolidation to be sufficient. Whatever force that contention might have, if it were an original contention, is undoubtedly foreclosed and barred by the former decisions of this court. This court in construing that statutory language has held in at least six cases that such an appeal from the county superintendent to the board of county commissioners would lie. King v. State ex rel. O'Reilly,83 Okla. 297, 201 P. 641; Smith v. State ex rel. Barry,84 Okla. 283, 203 P. 1046; Davis, County Superintendent, v. Whitehead, 86 Okla. 273, 208 P. 216; School District No. 39 v. School District No. 20, 119 Okla. 292, 249 P. 690; King, County Superintendent, v. State ex rel. Gossett, 126 Okla. 130,258 P. 755; State ex rel. Babb v. Smith, 142 Okla. 264, 286 P. 805.
Our attention is not called to any case decided by this court holding that such an appeal from the county superintendent to the board of county commissioners does not lie. It therefore seems to me that, upon the authority of the foregoing decisions, we must say that the question of such right of appeal is in this jurisdiction a closed question of statutory construction by decision of this court. And that we must now follow that construction and sustain the right of such an appeal as was taken from the action of the county superintendent in this case, and as it was held in the above-cited cases might be so taken.
It must follow in this case that, since the appeal to the board of county commisioners did lie, the board of county commissioners did have jurisdiction to consider the appeal, and the judgment of the district court in the proceeding in certiorari, holding that the board of county commissioners was without jurisdiction, is erroneous, and that determination by the district court is properly reversed by the opinion of this court. *Page 235
RILEY, C. J., and ANDREWS, OSBORN, BAYLESS, and BUSBY, JJ., concur. CULLISON, V. C. J., and SWINDALL and McNEILL, JJ., dissent.
On Rehearing.