I dissent to the order of the court in refusing to grant a rehearing in this case. It is my view that the majority opinion is not correct.
This action grows out of an attempt to organize common school districts Nos. 34 and 36 of Carter county into a consolidated school district. I adopt the statement of the case in the brief of the plaintiffs in error, defendants in the trial court, as follows:
"During the month of October, 1929, petitions purporting to be signed by a majority of the legal voters of said districts Nos. 34 and 36 were presented to the county superintendent of Carter county, requesting that he call a meeting or election to be held in said districts for the purpose of voting upon the proposition of organizing said common school districts into a consolidated school district. Acting upon the petitions thus presented, the county superintendent found the same to be sufficient and entered an order calling an election as prayed for. Within ten days from the date of said order, an appeal was duly perfected by more than 25 per cent. of the legal voters of said district No. 34 from the making of said order, and the calling of said election to the board of county commissioners of Carter county. Notwithstanding the perfection of such appeal, the county superintendent of public instruction proceeded to hold election as called, and he thereafter declared said election to have carried, and said districts organized into a consolidated district.
"Thereafter, and on or about the 4th day of December, the whole matter came on to be tried on appeal before the board of county commissioners, and after trial de novo, said board found that the election was improperly called for the reason that the petition presented from district No. 34 was not signed by a majority of the legal voters of said district; and said board made and entered an order to that effect and reversed the action of the county superintendent. Thereafter, and on or about the 11th day of December, 1929, the defendants in error herein filed in the district court of Carter county, Okla., their petition for writ of certiorari; and on said date the Honorable Asa E. Walden, judge of said court, made and entered an order in said cause, requiring the board of county commissioners of Carter county to certify the record to said court, and issued a writ of certiorari, as prayed for. Thereafter the plaintiffs in error, defendants in the trial court, filed their motion to dismiss and demur on jurisdictional grounds, and upon the further ground that the petition for the writ did not state facts sufficient to constitute a cause of action and to warrant the court in the issuance of the same.
"Thereafter said motion to dismiss and demurrer were heard by the court on the 10th day of January, and after due consideration, same were overruled, exceptions allowed to the plaintiffs in error in said cause, who thereupon gave notice of their intention to appeal to this court. Thereupon, the court set the matter down for trial, over the objections and exceptions of plaintiffs in error, and upon the 16th day of January, 1930, the court proceeded to hear the testimony of defendants in error, plaintiffs in the trial court; at the conclusion of which judgment was rendered for the plaintiffs, reversing the order of the board of county commissioners, and directing that the orders of the county superintendent in calling the election and organizing said school districts into a consolidated district be reinstated; to all of which the plaintiffs in error duly excepted, and gave notice of their intention to appeal to this court."
Plaintiffs in error contend that the question involved is whether or not the board of county commissioners had jurisdiction to review the action of the county superintendent in calling the election and declaring the districts involved to be a consolidated district; also, whether said board had jurisdiction to make and enter an order of reversal after a full and complete hearing in the matter, for the reason as found by said board that the petition presented from district No. 34, requesting the calling of a meeting or an election for the purpose of voting upon the question of consolidation, was not signed by a majority of the legal voters of said district No. 34.
Plaintiffs in error assert that by the terms of section 10462, C. O. S. 1921 [O. S. 1931, sec. 6915], the presentation to the county superintendent of a petition from district No. 34, signed by a majority of the legal voters thereof, was a condition precedent to the calling of an election for the purpose of establishing a consolidated school. In support of this contention the following authorities are cited: King v. State ex rel. O'Reilly, Co. Atty., 83 Okla. 297, 201 P. 641; King, Co. Supt., v. State ex rel. Gossett, Co. Atty.,126 Okla. 130, 258 P. 755.
Plaintiffs in error also urge that an appeal will lie to the board of county commissioners from an order of the county superintendent in calling an election for *Page 236 the purpose of consolidating two or more districts. In support of this theory the aforesaid cases are cited; also, the case of State ex rel. Babb v. Smith, 142 Okla. 264, 286 P. 805. After citing the aforesaid authorities plaintiffs in error conclude that a petition signed by a majority of the legal voters of district No. 34, requesting the calling of an election for the purpose of consolidation, was a condition precedent to the calling of such election; and since an appeal lies from an action of the county superintendent in calling such election to the board of county commissioners, then it follows that the board of county commissioners had jurisdiction to review the order of the superintendent and to reverse and set aside the action of said superintendent. Plaintiffs in error state in their brief that if section 10321, C. O. S. 1921 [O. S. 1931, sec. 6771], is the controlling statute, then the action of the board of county commissioners is final. In support of this contention the case of School District No. 39 v. School District No. 20, 119 Okla. 292, 249 P. 690, is cited.
In summarizing their contentions, the plaintiffs in error state in their briefs as follows:
"In other words, it is our contention that if section 10321, supra, is the controlling statute, then the action of the board of county commissioners is final. The only matter presented to the court on certiorari was the question of jurisdiction of the board of county commissioners, and said court exceeded its authority and jurisdiction in proceeding to hear evidence in the case; while if section 7781, R. L. 1910, controls, then the remedy of the plaintiffs was by appeal from the action of the board of county commissioners to the district court; and since they chose to bring the matter before the district court by writ of certiorari, that court was wholly without authority to hear further evidence in the matter. The defendants stood upon the record and declined to introduce any evidence, for the reason as we view it, the district court had no authority to hear such evidence."
Finally, it is the position of the plaintiffs in error that the motion to dismiss and defendant's demurrer to the petition for writ of certiorari should have been sustained, and that the trial court committed reversible error in overruling the same and in rendering judgment for the plaintiffs.
The defendants in error have filed their motion to dismiss this appeal, but I do not consider this question, but pass to their contentions as to the merits. The defendants in error contend that the election was held, consolidation ordered, the district consolidated, and a consolidated school district organized, before the matter was tried before the board of county commissioners and before the board of county commissioners entered its order in said matter; that the board of county commissioners by its order attempted to set aside and hold for naught the election which was held in said school district. It is the contention of the defendants in error that the board of county commissioners was without jurisdiction to do so. Defendants in error also urge that the district court was not limited to inquire into the jurisdiction of the board of county commissioners and that the board of county commissioners did not have jurisdiction to entertain said appeal.
The real issue involved in this case is whether an appeal lies from the order of the county superintendent calling a special election for the purpose of voting upon the question of establishing a consolidated district to the board of county commissioners.
An examination of the briefs held herein discloses an apparent conflict existing in authorities from this court and confusion arising in reference to section 7781, R. L. 1910, as to whether this section was repealed by section 11, art. 2, ch. 219, Session Laws 1913, which is section 10321, C. O. S. 1921, being substantially section 7701, R. L. 1910. This court has held that said section 7781, supra, was repealed by said section 11, art. 2, ch. 219, Session Laws 1913, supra. See Board of Education of City of Nowata v. McCracken, Co. Assessor, 62 Okla. 172, 162 P. 782 (1917); School District No. 7 v. Cunningham, 51 Okla. 261, 151 P. 633 (1915); School District No. 39 v. School District No. 20, 119 Okla. 292,249 P. 690 (1926). However, in the cases, to wit, King v. State ex rel. O'Reilly, 83 Okla. 297, 201 P. 641 (1921), and Davis v. Whitehead, 86 Okla. 273, 208 P. 216 (1921), this court held that an appeal may be had to the board of county commissioners from the action of the county superintendent, and from that board to the district court, and from that court to this court, under the provisions of section 7781, supra. In this connection it is to be observed that the case of King v. State, ex rel. O'Reilly, supra, relies upon the case of Woolsey v. Nelson,43 Okla. 97, 141 P. 436, but the facts in the Woolsey Case, supra, arose prior to the effective date of the Act of 1913. That act became effective January 1, 1914, and prior to that date said section 7781 was operative under the facts in the Woolsey Case, and as said section was repealed by the Act of 1913, it was of *Page 237 no force and effect at the time of the rendition of the cases of King v. State ex rel. O'Reilly and Davis v. Whitehead, supra.
A review of the cases in this court shows that the court at the delivery of these opinions, King v. State ex rel. O'Reilly and Davis v. Whitehead, supra, overlooked the fact that this court had two times declared that said section 7781, supra, was repealed. The case of King v. State ex rel. Gossett, Co. Atty.,126 Okla. 130, 258 P. 755, follows the rule announced in the cases of King v. State, supra, and Smith v. State,84 Okla. 283, 203 P. 1046, as authority for an appeal from the action of the county superintendent in calling an election for a consolidation of certain districts and providing for an appeal from the order of the county superintendent organizing said district under the provisions of said section 7781, supra. However, the court at the time of the delivery of this opinion, August 2, 1927, had heretofore, to wit, September 28, 1926, in the case of School District No. 39 v. School District No. 20, held that said section 7781 had been repealed by said Act of 1913, and cites in support thereof the cases of School District No. 7 v. Cunningham, supra, and Board of Education v. McCracken, supra. The court at that time apparently overlooked these three cases holding that section 7781, supra, had been repealed.
In an effort to clarify the divergent holdings of some of the opinions of this court on these questions, I desire to set out in detail the history of the legislative enactments dealing with sections 7701 and 7781, R. L. 1910.
Chapter 74, Revised Laws of 1910, entitled "Schools", contained 25 articles. These articles consider the following subjects:
1. School funds. 2. State Board of Education. 3. Agricultural education. 4. State Superintendent. 5. County superintendent. 6. Books and supplies. 7. Cities. 8. School districts. 9. District officers. 10. Bonds. 11. County high school. 12. Kindergartens. 13. Union or graded school districts. 14. County normal institutes. 15. Separate schools. 16. Teachers and certificates. 17. Compulsory attendance. 18. Miscellaneous. 19. University of Oklahoma. 20. Agricultural College. 21. Preparatory schools. 22. Normal schools. 23. Colored Agricultural and Normal University. 24. Girls' Industrial School. 25. School of Mines.
Chapter 219, Session Laws of 1913, approved May 22, 1913, was an act entitled as follows:
"An act prescribing laws for the government of the common schools of Oklahoma; and repealing conflicting laws."
The Act of 1913 included 17 articles dealing with the following subjects, to wit:
Article 1. State Superintendent.
Article 2. County superintendent.
Article 3. Districts and schools.
Article 4. Joint districts.
Article 5. District officers — meetings — finances.
Article 6. Independent districts — cities and towns.
Article 7. Consolidated districts.
Article 8. Union graded schools.
Article 9. Scholastic census.
Article 10. Agricultural and industrial education.
Article 11. Normal institutes and teachers' training courses.
Article 12. Kindergartens.
Article 13. Compulsory education.
Article 14. Examination of teachers.
Article 15. Separate schools for races.
Article 16. Transfer of pupils to other districts.
Article 17. Miscellaneous.
Section 15 of article 17, "Miscellaneous," provided:
"All acts and parts of acts in conflict with any provisions of this act are hereby repealed."
It is to be observed that the Act of 1913 did not cover the subject-matter of the following articles of said chapter 74, to wit:
Article 1. School fund.
Article 2. State Board of Education.
Article 3. Agricultural education.
Article 6. Books and supplies.
Article 7. Schools in cities.
Article 10. Bonds.
Article 11. County high schools. *Page 238
The following articles of said chapter 74, to wit:
Article 4. State Superintendent.
Article 5. County superintendent.
Article 8. School districts.
Article 9. District officers.
Article 12. Kindergartens.
Article 13. Union or graded schools.
Article 15. Separate schools.
Article 16. Teachers and certificates.
Article 17. Compulsory attendance.
Article 18. Miscellaneous.
— were superseded by the Act of 1913. Sections 7806 to 7817, inclusive, R. L. 1910, were the only sections therein relating to the common schools which were not re-enacted in the Act of 1913. These sections dealt with the school district treasurer. This office no longer existed, and these duties were performed by the county treasurer. These duties are set forth in sections 34 to 40 of article 5 of chapter 219, S. L. 1913. Article 16, "Teachers and Certificates," R. L. 1910, was re-enacted as article 14, chapter 219, S. L. 1931, with additional sections 12 to 18, inclusive. Sections 7947 to 7957, R. L. 1910, relating to transfer of pupils, were omitted from the 1913 law. With these exceptions the entire law relating to common schools in R. L. 1910, is substantially re-enacted in the 1913 laws.
Sections 7781, R. L. 1910, dealing with the appeals of aggrieved persons, is omitted from the 1913 act. Said section is one of 21 sections, sections 7774 to 7794, inclusive, making up article 8, of chapter 74, R. L. 1910. No reference is made therein to the consolidation of school districts by the voters of any two or more adjacent school districts. Each one of said 21 sections is re-enacted in the 1913 act, almost word for word, with the exceptions of section 7774, providing that there should be maintained in each district a school for at least three months, section 7777, relating to assessing tuition fees, and said section 7781.
It seems apparent that said section 7781 was omitted from the 1913 act, because substantially the subject-matter of said section was covered by section 7701, R. L. 1910, dealing with division of county into school districts by the county superintendent, which was substantially re-enacted as section 11 of article 2 of said 1913 law.
All of said article 5 of chapter 74, R. L. 1910, entitled "County Superintendent," was substantially re-enacted as article 2 of said Act of 1913. Said section 7701 was section 5760, Stat. 1893, as amended by Laws 1897, P. 271, as amended by S. L. 1910, p. 202, and was a part of said chapter 74. Section 7781, R. L. 1910, was section 5767, Stat. 1893, as amended by Session Laws of 1895, page 240, and was a part of the chapter on "School Districts," being section 12 of article 1, "Duties of County Superintendents," of said Act of 1893, and related to the forming of school districts. Said section 5760 made it the duty of the county superintendent to divide the county into a convenient number of school districts, and to change such school districts when the interests of the inhabitants thereof required it and provided that any person interested might appeal to the board of county commissioners from the action of the county superintendent, but it did not expressly provide that the decision of the board of county commissioners should be final. Said section 5767, being section 4 of article 2. "School Districts," of, the Act of 1893, provided for an appeal by any person or persons who felt aggrieved at the action of the county superintendent in the formation or alteration of or refusal to form or alter a school district to the board of county commissioners and expressly provided that their decision after conferring with the county superintendent should be final.
No appeal was provided by the Statutes of 1893 from the decision of the board of county commissioners. The right of appeal from the decision of the board of county commissioners to the district court was first provided by the Act of 1895, page 240, which amended said section 5767, Statutes of 1893, being section 7781, of R. L. 1910, primarily relating to the formation or alteration of school districts and the procedure for an appeal.
Said section 7781, R. L. 1910, is made up of two provisions. One provision provides for an appeal from the action of the county superintendent in the formation or alteration of, or the refusal to form or alter, school districts, to the board of county commissioners. The other provision provides for an appeal from the finding of the board of county commissioners to the district court by either party or any person residing in the school district affected by such formation or alteration. The first of these provisions is substantially contained in section 11 of article 2 of chapter 219, S. L. 1913, dealing primarily with school district boundaries, but the other is not. That was a matter within the discretion of the Legislature, as the subject-matter of appeal was fully covered by the 1913 Act. *Page 239
Section 11 of article 2, ch. 219, S. L. 1913, contains the following:
"No district shall be changed under the provisions of this section, except upon a petition to the county superintendent of public instruction, signed by at least one-third of the qualified electors of the district petitioning for the change; provided, that one-fourth of the qualified electors of any district affected by such change may join in an appeal to the board of county commissioners from the action of such county superintendent, and their decision shall be final."
This provision making the decision of the board of county commissioners final is entirely inconsistent with the provisions in said section 7781, R. L. 1910, providing for an appeal from the decision of the board of county commissioners to the district court.
In the majority opinion this court said:
"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."
This holding is based upon the conclusion that any person or persons who feel aggrieved from the action of the county superintendent in determining the sufficiency of a petition for the formation or consolidation of school districts has the right of appeal to the county commissioners. Neither section 7781, R. L. 1910, nor the Act of 1913 provides for an appeal on any such question. No provision for such an appeal has ever been incorporated in any of the school laws. The appeal provided for in section 7701, R. L. 1910, section 11, art. 2, ch. 219, Session Laws 1913, or said section 7781, was from the action of the county superintendent in the formation or alteration of, or refusal to form or alter, a common school district, and does not deal with the question of calling an election for the formation and organization of a consolidated school district. The right of appeal is statutory and cannot be extended to cases which do not come within the statute. Cleal v. Higginbotham, 49 Okla. 362, 153 P. 64. In my opinion this court is judicially legislating and providing an appeal in this case when the same is not provided for by any section of our statute. This it cannot do.
Article 7 of chapter 219, S. L. 1913, as amended by the Act of 1917, c. 258, covers the entire subject of consolidated districts and superseded that part of article 13 of R. L. 1910 relating thereto, said article 13 being entitled "Union Graded Districts." Sections 10462, 10463, and 10464, C. O. S. 1921, deal with the formation and organization of consolidated school districts. These are the only sections strictly dealing with such subject. To consummate the consolidation of school districts, a majority of the votes cast at a special meeting in favor of the consolidation of the districts is required. The voice of the people governs on this question and not the action of the county superintendent. The procedure for the formation and organization of a consolidated school district is entirely different from the procedure in the formation or alteration of or refusal to form or alter school districts. The duties of the county superintendent relating to the formation or alteration of school districts are peculiarly within the province of the county superintendent. His acts in dealing therewith are quasi judicial, and the right of appeal therefrom exists; but his duties relative to the formation and the establishment of a consolidated school district are entirely different. The action of the county superintendent in declaring a consolidated district organized pursuant to vote of the people is clearly ministerial. King, Co. Supt., v. State ex rel., 126 Okla. 130,258 P. 755. It is manifest that it was never the intention of the Legislature to provide for an appeal from the action of the people in voting for the establishment of a consolidated school district. On the contrary, it clearly appears that the right was extended to the people to determine by a majority vote whether they desired to establish a consolidated school district. If said election is illegal, any person aggrieved thereby has the right and authority to proceed under the law for relief from a redressible wrong, the same as in any other illegal election.
Section 8 of article 7 of chapter 219, S. L. 1913, specifically provided that in any and "all matters relating to consolidated school districts, not provided for in the preceding sections, the law relating to school districts shall be in force where said laws *Page 240 are applicable." It is urged that by reason of this section the provisions relating to an appeal from the action of the county superintendent in forming or changing school districts is applicable. It is my opinion that the action of the county superintendent in dealing with the formation and consolidation of school districts is purely administrative and ministerial, and said section 8 has no application relating to an appeal from his ministerial acts in reference to calling or refusing to call an election for a consolidated district. For failure to perform such ministerial duty, the writ of mandamus is available. For an unauthorized and excessive application of his authority, power, and jurisdiction, proper relief is available. Gregg v. Hughes, 89 Okla. 168, 214 P. 904.
The action of the people in a regular and legal election in establishing a consolidated school district pursuant to section 1, art. 7, ch. 219, S. L. 1913, is not reviewable by an appeal to the board of county commissioners. This was the holding of this court in Cleal v. Higginbotham, supra. The court in the second syllabus paragraph in that case said:
"There is no constitutional provision or legislative enactment which provides for an appeal, either from the action of the county superintendent of public instruction to the board of county commissioners, or from the board of county commissioners to the district court, for the purpose of reviewing the action of the people themselves and the county superintendent in creating a consolidated school district, pursuant to section 1, art. 7, c. 219, Session Laws 1913."
See, also, Lowe v. Consolidated School District No. 97, Blaine County, 79 Okla. 115, 191 P. 737.
In citing the case of King v. State, supra, 126. Okla. 130,258 P. 755, I do not mean to uphold that opinion in so far as it deals with the right of appeal from the action of the county superintendent in passing upon the sufficiency of the petition for the consolidation of a school district and the cases relied upon therein upon that question. That portion of said opinion is not sound. It is my opinion that section 7781 was repealed by the Act of 1913, for the reason that the Legislature, by the Act of 1913, covered the whole subject-matter of the school laws, and in so doing said section 7781 was repealed. The general law applicable for such cases as announced in 59 C. J., section 520, p. 919, is as follows:
"Where a later act covers the whole subject of earlier acts, embraces new provisions, and plainly shows that it was intended, not only as a substitute for the earlier acts, but to cover the whole subject then considered by the Legislature, and to prescribe the only rules in respect thereto, it operates as a repeal of all former statutes relating to such matters."
See, also, Garnett v. Goldman, 39 Okla. 516, 135 P. 410; Hudson v. Ely, 36 Okla. 576, 129 P. 11.
I contend that the only appeal from the action of the county commissioners in reference to matters relating to the formation or alteration of school districts was by section 7781, R. L. 1910, being section 5767, Stat. 1893, as amended by Sess. Laws 1895. This right of appeal from the action of the county commissioners was omitted in the laws of 1913.
Should the county superintendent act in excess of his jurisdiction, power, or authority, in the formation of a consolidated school district, his acts may be reviewed by writ of certiorari (Gregg v. Hughes, 89 Okla. 168, 214 P. 904); or by mandamus (State v. Ross, 76 Okla. 11, 183 P. 918); or by some other proper proceeding on behalf of a party aggrieved. It is my opinion that all our prior decisions in conflict with the views herein expressed should be expressly overruled.
This court, in its supplemental opinion on rehearing in support of its opinion, that an appeal lies from the county superintendent to the board of county commissioners, cites the following cases, to wit: 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 Supt., v. Whitehead,86 Okla. 273, 208 P. 216; School District No. 39 v. School District No. 20, 119 Okla. 292, 249 P. 690; King, Co. Supt., v. State ex rel. Gossett, 126 Okla. 130, 258 P. 755; State ex rel. Babb v. Smith, 142 Okla. 264, 286 P. 805.
It is to be observed that the first case, King v. State ex rel. O'Reilly, supra, was an action in the nature of quo warranto, brought on relation of the state in the name of the county attorney against the officers of a consolidated school district to test the validity of the organization of said consolidated school district and to cancel bonds issued by said school district. The opinion was based upon the theory that the right of appeal existed. This court in that case said:
"This court, in the case of School District 68. Noble County, v. Wollingford, 69 Okla. 174, 170 P. 901, held that section 7781, Rev. Laws 1910, was applicable in *Page 241 a case, where certain portions of a consolidated district were attempting to be detached from a consolidated district, and in that case an appeal was prosecuted from an action of the county superintendent to the board of county commissioners, and from the board of county commissioners to the district court, and from there to this court. If we apply the law announced above to the facts in the case at bar, when the county superintendent made an order calling the meeting of the voters he necessarily had to decide that the petition contained one-half of the legal voters of the district, and any person feeling aggrieved could have appealed from said order to the county commissioners, but no appeal was taken. Having failed to appeal, the order is not subject to attack in this proceeding in the absence of fraud. We think the rule is well settled that where parties are granted the right of appeal from a judgment upon a question of fact and an opportunity to be heard and where they fail to exercise that opportunity, they cannot thereafter attack the finding upon a question of fact, in a collateral proceeding."
If the right of appeal existed, the opinion is correct. If no right of appeal existed by reason of section 7781, R. L. 1910, having been repealed, then the conclusion reached by the court in that case, to the effect that the legality of the election could not be inquired into in a quo warranto proceeding, in my opinion, was wrong, as I have heretofore pointed out that section 7781, supra, was repealed, as held by this court in two decisions, in, to wit, 1915 and 1917, which decisions evidently were not called to the attention of the court at the time of the rendition of the opinion of King v. State ex rel. O'Reilly, supra.
In the case of Smith v. State ex rel. Barry, supra, the court considered an action in the nature of quo warranto on the relation of the county attorney against the pretended officers of a consolidated school district, praying dissolution of said consolidated school district and that said officers be enjoined and restrained from acting as such officers. The purpose of the action was to test the validity of the consolidated school district. This case is also wrong in my opinion. It relies upon the cases of King v. State ex rel. O'Reilly, and Davis v. Whitehead, supra. If said section 7781 had not been repealed, there would have been foundation for the conclusion arrived at in the opinion.
In the case of Davis, Co. Supt., v. Whitehead, supra, the court considered the question of restraining the county superintendent from holding an election which had been called by said superintendent for the purpose of voting upon the consolidation of certain school districts. In that action the plaintiff sought to enjoin the holding of said election upon the ground that no valid petition had been filed, it being alleged in the petition that said petition was insufficient because a majority of the voters of district No. 150 had withdrawn their names from: the petition prior to the issuance of the call of the election, and also that proper notice had not been given for said election. In that case, the court said
"In the case at bar the plaintiff, under section 7781, Revised Laws 1910, had the right to appeal from the action of the county superintendent of education in issuing the call for the election to the board of county commissioners, and if the board of county commissioners on appeal were adverse to his contentions, he had the right to appeal to the district court, and from the judgment of the district court to the Supreme Court.
"County superintendents of education in passing upon the sufficiency of petitions authorizing the issuing and calling of elections exercise a discretionary power, and from such action in determining the sufficiency of the petition and calling the election under said section of the statute, supra, any aggrieved person is afforded a plain and statutory remedy to correct any errors of the superintendent in calling the election by appeal. Woolsey v. Nelson, 43 Okla. 97, 141 P. 438; School District No. 68, Noble County, v. Wollingford,69 Okla. 174, 170 P. 901. See King v. State ex rel. O'Reilly, opinion filed September 13, 1921, 83 Okla. 297, 201 P. 641."
It is apparent that the court did not consider in that opinion its prior decisions holding that section 7781, supra, had been repealed.
In the case of School District No. 39 v. School District No. 20, 119 Okla. 293, 249 P. 690, the court considered whether an appeal may be taken from the order of the board of county commissioners, altering or changing the boundaries of school districts, to the district court. It appears from the facts as revealed in the opinion in that case that, during the year 1921, consolidated district No. 30 was formed from four other school districts, and thereafter a strip of territory was detached from one of said school districts and attached to said consolidated district. In 1923, by a vote of the qualified electors of said consolidated school district, said consolidated school district was dissolved, and the county superintendent issued his proclamation to that effect, and re-established the aforesaid district as required by section 10481, C. O. S. 1921 [O. S. 1931, sec. 6938]. The *Page 242 board of county commissioners reversed the order of the superintendent, and from this order an appeal was perfected to the district court. On motion of one of the school districts, the appeal to the district court was dismissed for want of jurisdiction, and from said order and judgment an appeal was perfected to this court. In passing upon the questions involved in that appeal, the opinion by Commissioner Jarman, delivered September 28, 1926, specifically states:
"The only question involved here is whether an appeal may be taken from the order of the board of county commissioners, altering or changing the boundaries of school districts, to the district court. * * *
"Besides, this court has held that section 7781, R. L. 1910, was repealed by section 7701, R. L. 1910. School District No. 7 v. Cunningham, 51 Okla. 261, 151 P. 633; Board of Education v. McCracken, 62 Okla. 173, 162 P. 782."
Reference is also made therein to the case of King v. State ex rel. O'Reilly, supra, and Davis v. Whitehead, supra, as cited by the plaintiff in error in that case to sustain the right to appeal from the order of the board of county commissioners to the district court. The court in its opinion said:
"In the first place, both of the cited cases deal with consolidated school districts, whereas the instant action merely involves the changing or altering of the boundary of a common school district. In the case of King v. State ex rel. O'Reilly, supra, an election was called by the county superintendent for the purpose of determining whether certain common school districts ought to be combined as a consolidated district. The sufficiency of the petitions filed with the county superintendent for the purpose of consolidating the districts was questioned, and the county superintendent held them to be sufficient and called the election, which resulted in consolidation. An action then was instituted in the district court in the nature of quo warranto, to test the validity of the consolidation, and this court held that an appeal lay from the action of the county superintendent to the county commissioners, and, from their ruling or order, to the district court. An appeal from the action of the county commissioners to the district court was not involved in that case, and the unfortunate language used in the body of the opinion, that an appeal lay from the action of the county commissioners to the district court, is purely dictum. The court properly held in that case that an appeal lay from the action of the county superintendent to the board of county commissioner, and that was sufficient for the purposes of the opinion."
But from a careful reading of this opinion, I conclude that this court in that opinion drew the wrong conclusion in reference to what was termed "dictum" in the case of King v. State ex rel. O'Reilly, and must have concluded that an appeal lies from the action of the county superintendent to the board of county commissioners, under section 10321, C. O. S. 1921 [O. S. 1931, sec. 6771], though it did not expressly so hold. Even under that theory there is no support for such conclusion, because said section 10321 has no application to the formation and organization of a consolidated school district. It is my opinion that if section 7781, supra, was repealed, then there was no right of appeal and the action of quo warranto was proper in the O'Reilly Case.
In the case of King, Co. Supt., v. State ex rel. Gossett, supra, this court considered an action in the nature of quo warranto on the relation of the county attorney of Pushmataha county against the consolidated school district No. 5, to dissolve the same, or, as stated in the opinion, to declare that said consolidated district was never legally organized. The court in its opinion stated:
"We realize, therefore, the only question before us to determine is whether or not it was necessary for the county superintendent to post notices of his order forming the new district."
In that opinion the court cites sections 10462, 10463, and 10464, C. O. S. 1921 [O. S. 1931, secs. 6915-6917], as being the only sections authorizing the consolidation of school districts, and held that the consolidation can only be accomplished by a vote of the qualified electors of the district. It is my view that this opinion attempts to legislate judicially when it says:
"Construing the statutes in reference to common school districts and consolidated school districts together, we think that when the county superintendent acts in a judicial or quasi judicial capacity, that an appeal will lie to the county commissioners, but if this act is purely ministerial, then we do not think an appeal is authorized."
No section of the statute is cited to support such theory, and reliance of this case was based on the case of King v. State, 83 Okla. 297, 201 P. 641, wherein the court also followed the cases of King v. O'Reilly, and Davis v. Whitehead, supra, and overlooked as heretofore noted the repeal of section 7781, which had doubtless not been called to the attention of this court at the delivery of this opinion. *Page 243
In the case of State ex rel. Babb v. Smith, supra, filed February 25, 1930, the court considered an action in quo warranto. The question involved an appeal from a judgment sustaining the formation of a consolidated district which had been formed out of certain common school districts. It was agreed in that case in the formation of the consolidated district no petition signed by one-third of the qualified electors of district No. 58 was ever presented to the county superintendent as required by section 10321, C. O. S. 1921. In that opinion, it was said:
"The county superintendent passed upon the petition in the first instance and approved it. An appeal lay to the board of county commissioners under the statute. In King v. State ex rel. O'Reilly, County Atty., 83 Okla. 297, 201 P. 641, it was held that in the absence of fraud the petition for consolidation could not be inquired into in a quo warranto proceeding; that the sufficiency of the petition was not open to collateral attack."
It is apparent from these cases that there is no statute existing by which an appeal may be taken from an order of the county superintendent in holding a petition sufficient and calling an election for the formation and organization of a consolidated school district. To have the right of appeal, some statute must exist to authorize the same. I contend that there is no such statute existing granting this right of appeal relative to the formation and organization of a consolidated school district. The plaintiffs, being the defendants in error, sought a proper method in this case, a writ of certiorari, to review the action of the county commissioners.
Where the county superintendent or the county commissioners are exercising power and authority to perform acts or enter orders in excess of their power and jurisdiction, these acts may be reviewed by writ of certiorari.
In the case of Gregg v. Hughes, 89 Okla. 168, 214 P. 904, this court considered the writ of certiorari involving the action of the county superintendents of Murray and Garvin counties, in attaching territory to a consolidated school district. In that case this court said:
"In the absence of other remedy, the common-law writ of certiorari will lie to review the question of jurisdiction, power, and authority to perform acts or enter orders which are judicial or quasi judicial in their nature, such as are the acts in question here. Wulzen v. Board of Supervisors, 101 Cal. 15, 35 P. 353, 40 Am. St. Rep, 17; People v. Featherstonhaugh,172 N.Y. 112, 64 N.E. 802, 60 L. R. A. 768; Note 30 L. R. A. (N. S.) 131; Barry v. Blackhawk County Dist. Ct., 167 Iowa, 306, 149 N.W. 449; Woolsey v. Nelson, 43 Okla. 97, 141 P. 436; King v. State ex rel. O'Reilly, 83 Okla. 297, 201 P. 641; Davis v. Whitehead, 86 Okla. 273, 208 P. 216."
I conclude that said section 7781 has been repealed as heretofore announced by this court in the aforesaid cases, to wit, Board of Education v. McCracken; School District No. 7 v. Cunningham; School District No. 39 v. School District No. 20, supra, by reason of the fact that the legislative act of 1913 covered the whole subject-matter of the school law, and which was a substitution for all of the earlier acts of the Legislature on this question, and it operated as a repeal of all former statutes relating to the subject-matter governed by said section 7781. I also conclude that there is no right of appeal from the vote of the people in establishing a consolidated school district, or the ministerial act of the superintendent relative thereto.
It is my opinion that the decision of the board of county commissioners in the instant case in attempting to reverse the action of the county superintendent was properly reviewable by the district court by certiorari, and that the judgment of the trial court in holding that the board of county commissioners had no authority to review on appeal the action of the county superintendent relating to the calling of an election for a consolidated school district should be sustained.
I am authorized to say that Mr. Justice SWINDALL concurs in the views herein expressed.