delivered the opinion of the court.
We do not think any of the questions in this case require consideration other than the ones which we shall mention. By section 4530, Code of 1906, it is provided that “any municipality, by an ordinance of the mayor and board of aldermen thereof, or any unincorporated district of not less than sixteen square miles, by the county school board, on a petition of a majority of the .qualified electors therein, may be declared a separate school district, but shall not be entitled to the rights and privileges of a separate school district unless a free public school shall be maintained therein for a term of at *599least seven months in each scolastic year. ” It is contended, under this section, that a municipality cannot establish a separate school district, unless petitioned so to do by a majority of the qualified electors therein. It is also contended that, before a separate school district may be established, it must be shown that the municipality has sufficient property on which to levy a tax to raise revenue sufficient to maintain the school for seven months. "We notice only these contentions, since the record answers all others.
As to the first one, it is' plain, from the statute, that a municipality may create a separate school district without reference to any petition of the qualified electors therein. Section 4530, Code of 1906, is a rescript of section 4011 of the Code of 1892, except that in the Code of 1906 provision is made for the first time for the establishment of a separate school district in unincorporated territory. Under section 4011, Code of 1892, this could not be done. That our conclusion as to this is correct becomes clear by referring to section 4011, Code of 1892. Section 4011, Code of 1892, provided that any municipality of three hundred or more inhabitants could be declared a separate school district by an ordinance of the mayor and board of aldermen, and nothing was there said about any petition from the qualified electors. In adopting the Code of 1906 no change in the law was made as to this, but a new right was given to unincorporated territory to form itself into a separate school district by a petition of a majority of the qualified electors acting through the county school board. In unincorporated territory, it was necessary for the initiative to be taken by somebody, and since in this unincorporated territory there was no one to take this initiative except the qualified electors, it was but natural that it should be confided to them; and since it was necessary for some one to have the authority to say whether or not the petition had a majority, and to declare the separate school *600district created, this power was confided to the county school board of the county.
It is not necessary, in order that a separate school district shall be established by the municipality, that it be shown that the district can maintain a school for a term of seven months. The district may be created without this showing being made; but the statute provides its own penalty where a separate school district fails to maintain a school for a term of seven months in each scholastic year. If the separate school district fail to maintain a school for the term reuired by the statute, it is not then entitled to the rights and privileges of a separate school district; but the power to so declare it is not affected in any way, and, when so declared, it will be a separate school district as soon as the school is maintained for the period of time required.
Affirmed.