State Ex Rel. School District No. 8 v. Lensman

MR. JUSTICE MORRIS delivered the opinion of the court. This is an original application for a writ of mandate to compel the board of county commissioners of Lake county to act on the budget presented to it and to levy the tax necessary to meet the requirements of the budget of a school district. The facts as developed by appropriate pleadings are that Joint School District No. 28 contained territory lying partly in Lake and partly in Missoula counties. A petition was filed to create a new district from territory lying wholly within the joint district, but including all of the territory of Joint District No. 28, which was within Missoula county, and a portion of the territory of this district lying in Lake county. This petition was presented to the county superintendents of the two counties, who made an order creating the new district known as Joint District No. 8. ■ An appeal was thereafter perfected to the boards of county commissioners of Lake and Missoula counties; these boards, sitting jointly, heard the appeal. After hearing, the vote of the commissioners was a tie, resulting in no action on the appeal. The county superintendents thereupon appointed trustees of the new district, who furnished the county superintendent of Lake county a preliminary budget for the new school district containing the proper information. The county treasurer of that county attached to this budget a statement for the new district as required by the statute — section 1019.10; Revised Codes. The certificate was attached by the county clerk as provided in section 1019.11. The county commissioners of Lake county thereafter met as the board of school budget supervisors, but refused to consider the budget for the new district on the ground that the district was not legally created. This proceeding followed, and in it Joint School District No. 28 and its trustees, individually, *122 and in their official capacity, intervened and joined with respondents in resisting the proceeding. Joint school districts, i. e., districts lying partly in one county and partly in another, may be formed in the same manner in which other new districts are created, except that the petition must be made to the county superintendent of each county affected, and all things to be done by the county superintendent must be done by concurrent action of both superintendents. (Sec. 1035.) Some question is raised in this case as to whether an appeal lies to the boards of county commissioners where a joint district is created. In the event of the creation of a district from territory lying wholly within one county, section 1024 provides for an appeal to the board of county commissioners. Section 1035 provides that joint districts may be created in the same manner as other new districts, with certain exceptions as to procedure which we have heretofore noted. This section would indicate that an appeal would lie to the boards of county commissioners in the event of the creation of a joint district. This court, in the case of School District No. 28 v. Larson, 80 Mont. 363, 260 Pac. 1042, 1046, said of these sections : ks is seen, section 1035 is very brief, and, in itself, is incomplete. Differing from the other sections mentioned, it does not, in itself, provide a complete plan of procedure. It refers to ‘the same manner as other new districts are formed.’ By that expression evidently it refers to some provisions of either section 1024 or section 1025. All are in the same chapter of the Codes (Political 'Code, chap. 79), which treats of school districts, their organization and formation. The three sections mentioned are the only sections of the Codes which can have any possible application to the issues of this ease. Hence it is inevitable that section 1035, for a part of its procedure, draws on either section 1024 or section 1025, which one, in a case such as this, is not plain.” Section 1025 has since been repealed. This court there proceeded to test the sufficiency of the petition with reference to sections 1024 and 1025, holding it to be insufficient under either section. *123 Our legislature has apparently adopted this construction of this existing statute, by section 1037.2, where it declared that districts created out of joint districts without the concurrent action of the various county superintendents and boards of county commissioners of the various counties having territory within the districts, are thereby declared to be valid and subsisting districts. If the boards of county commissioners were without authority to hear an appeal, there was no occasion for their being mentioned in this section. True, this section is only a curative statute, but it discloses the construction of the other statutes to which we have referred, as being in accord with our views. By the provisions of section 1024, upon the creation of a new school district, an appeal lies to the board of county commissioners. Since no question is raised as to the sufficiency of the proceedings had to perfect the appeal, we need not consider them. After the appeal is perfected the county superintendent must transmit, within the time provided, to the boards of county commissioners and file in the offices of the county clerks, the notices of appeal and all petitions, plats and papers in their possession pertaining to the petition for the creation of new school districts. Upon receipt of these papers and documents the county clerk must give notice, in the manner provided by this section, that the board of county commissioners will, upon a certain date, ‘ ‘ finally hear and determine said appeal and said petition for the creation of such new district.” The relators contend, in effect, that the new district was created by the concurrent action of the county superintendents, and, since that order was not set aside on appeal, the order of the county superintendents is a valid, subsisting order creating the new district. The respondents and interveners contend that the appeal operated to set aside and vacate the order of the county superintendents, and therefore no district has been created. The primary question presented by these contentions is: Did the perfection of the appeal operate to vacate and annul the order of the county superintendents; or did it, at the most, operate to suspend or delay the effective creation of the district ? *124 An appeal, in general terms, is a resort to an upper court or tribunal. (State ex rel. Johnson v. Case, 14 Mont. 520, 37 Pac. 95.) This court, in the case of State ex rel. Hall v. Peterson, 55 Mont. 355, 177 Pac. 245, held that on appeal from an order of the county superintendent to the board of county commissioners, the hearing is d& novo upon the merits. It is here argued that, by reason of the hearing being de novo, the order is therefore annulled as soon as the appeal is perfected. In the ease of Weasel Head v. Armstrong, 99 Mont. 364, 43 Pac. (2d) 243, 245, we said: “A new school district can only be ‘created’ by a county superintendent of schools on compliance with the provisions of section 1024, Revised Codes 1921, as amended by Chapter 138 of the Laws of 1927 (section 1). This was done in the instant ease by the order of the county superintendent of schools for Glacier county, made on October 31, 1931. District No. 7 was legally created on that date. (Grant v. Michaels, above [94 Mont. 452, 23 Pac. (2d) 266]). * * * Under our statutes the appeal, at most, may suspend the order of creation and, consequently, the functioning of the newly created district pending a decision on the appeal.” It is sometimes said, referring to appeals from justice courts to another court where a hearing is had de novo, that the effect upon the appeal being perfected is to annul the judgment below in the justice’s court. A case frequently cited to sustain that statement is that of Bullard v. McArdle, 98 Cal. 355, 33 Pac. 193, 35 Am. St. Rep. 176. Without question the California decision holds as indicated; but the authorities cited in support of the conclusion there announced merely state that upon such appeal the judgment is stayed and not annulled at once. We have examined many authorities with reference to appeals from justice courts which use rather sweeping language in line with that of the California court, but in most instances the courts were considering cases where the only question before them was whether the judgment was stayed pending the appeal. Courts following this rule, when the appeal was dismissed, in subsequent decisions, to avoid a reversal of the former ones, have been forced to hold that the dismissal of the appeal operated to re *125 vive the judgment of the justice court. We are not persuaded by decisions of this character. We have said in the Weasel Head Case, supra, that the district was created by the order of the county superintendent, and, at most, pending the appeal the order creating the district was only stayed. There is no conflict between the decision in that case and the one in the Hall Case, wherein it was said that the hearing was de novo. The former related to the effect of the order of the superintendent, and the latter to the manner of procedure on the appeal. It is generally held, in the absence of a statute with reference to appellate courts, where, after hearing, the judges of the appellate court are equally divided in opinion, that the judgment, order or decree appealed from stands affirmed. (5 C. J. S., Appeal and Error, sec. 1844 (b), p. 1314.) This is a universal rule. It is contended that the proceedings for the creation of the district were invalid, in that, in describing the boundaries of the proposed new district, a number of sections of land were included which are within another independent school district of Missoula county, and that no notice was given of the proposed inclusion of this territory as provided by law. While some error in the description may be present in the petition, yet it is clear from the reading of the petition that it was only intended to include within the boundaries of the new district certain territory within the boundaries of Joint District No. 28. Only territory included within this joint district was included in the new district. It is not every error in a description which will invalidate a proceeding or a conveyance. (State ex rel. Arthurs v. Board of County Commrs., 44 Mont. 51, 118 Pac. 804; Howe v. Messimer, 84 Mont. 304, 312, 275 Pac. 281.) Furthermore, “The petition is not a pleading. Its sufficiency is hot to be tested by subjecting its contents to analysis by the trained legal mind searching for, or bent on discovering, defects; nor are its averments to be construed against those who have signed it.” (State ex rel. Hall v. Peterson, supra.) We think the petition sufficient under the foregoing authorities. *126 It is contended that the action of the superintendents in granting the petition for the creation of the district was arbitrary, in that they failed to give consideration to the disadvantages which would result to the old district by the creation of the new district in the matter of the loss of taxable valuation of property located in the new district, and similar questions. This court, in the case of State ex rel. Redman v. Meyers, 65 Mont. 124, 210 Pac. 1064, 1065, has said: “A school district is merely a political subdivision of the state, created for the convenient dispatch of public business. In the absence of constitutional limitations, the legislature may create or abolish a district or change or rearrange the boundaries of an existing district, and by the same token it may create joint districts from territory lying in adjacent counties.” The legislature has by section 1024 provided that upon meeting of the requirements of that section, districts may be created by the county superintendent with the right of appeal to the board of county commissioners, whose action is final. By this Act certain discretion is lodged in these officers after the provisions of the statute are satisfied. The statute has been complied with here in so far as the necessary jurisdictional facts are concerned. The discretion of these officers was invoked and the discretion has been exercised. The legislature might have required these officers to be guided by any fixed rules which it saw fit to provide, but it has left all of these questions to the good judgment of these officers. This was within the power of the legislature. It is contended that the hearing before the county superintendents was ineffectual, in that it does not appear that sworn testimony was received at that time. It does not appear that any sworn testimony was offered which these officers refused to hear. This court has held that where a board of county commissioners was passing upon a petition they might resort" to any competent source of information available, perhaps including the personal information of the members. (State ex rel. Lang v. Furnish, 48 Mont. 28, 134 Pac. 297; State ex rel. Fadness v. Eie, 53 Mont. 138, 162 Pac. 164.) While the term ‘‘hear *127 ing” would include the reception of testimony, if any was offered (Grant v. Michaels, supra; Ellis v. Town of LaSalle, 72 Colo. 244, 211 Pac. 104), it is not indispensable where the facts are presented in some other competent manner. (Strahan v. Attala County, 91 Miss. 529, 44 So. 857.) The order appealed from created the district. The appeal has been heard in the manner provided by law and resulted in no change in the former order; hence the order creating the new district stands as a valid, subsisting order, and the respondents should have proceeded to consider the budget, act on it in the manner provided by law, and levy a proper tax or taxes as provided by law. It is suggested that, since the time has now expired within which the statutes command the performance of the duties here in question, mandate will no longer lie. This court in the case of State ex rel. Arthurs v. Board of County Commrs., supra, where a board of county commissioners had failed to perform a duty within time, made a similar contention, said: “This duty is absolute — one resulting from the office and specifically enjoined by law. To say that the courts are helpless to compel performance of such a duty, merely because the time within which the duty should have been performed has elapsed, is tantamount to holding that a public official, by delaying action until the time designated by law for action has expired, may defeat the will of the people as expressed by the legislature, and that there is not any redress for those who are injured by such nonaction. Cases may arise where the courts are not able to render any adequate assistance, but this is not one of them. The board will not be heard to say that it is too late to do that which it ought to have done at the proper time, or to take advantage of its own mistake to deprive these counter-petitioners of a right which the law secures to them. ’ ’ It should be kept in mind that we are dealing with a controversy arising from the acts of county officials done outside the powers such officials are ordinarily authorized to exercise. In legal effect, county commissioners vested with appellate power in the matter of the creation of joint school districts *128 constitute a special statutory board, vested with certain powers extra-jurisdictional in nature and entirely distinct from the powers such boards ordinarily exercise, and as separate therefrom as though the personnel of the board were composed of persons having no other part in county affairs. It would have been clearly within the scope of legislative powers had a special commission been created to perform the duties imposed upon the county boards in the premises, but it was neither economical nor expedient to do so. Hence statutory regulations of county boards have no application in this matter unless they relate to joint school districts. In construing statutes it is the duty of courts to give effect to the will of the legislature, if possible, not to defeat that will. By section 1035, Revised Codes, the intent to provide a means of creating joint school districts is clearly obvious. The .procedure is not fully nor clearly provided, but when an official duty is imposed and no mode of exercise is prescribed, the one who is required to perform such duty may adopt any mode reasonably suitable to carry the duty imposed into effect. (Simpson v. Silver Bow County, 87 Mont. 83, 285 Pac. 195.) The boards of county commissioners of Lake and Missoula counties met jointly, as heretofore stated, and that, it is contended in substance, rendered their action illegal for the reason that it is said the two boards must act concurrently, and to so act they must meet in their respective jurisdictions. In support of this view the following decisions are cited: State of Rhode Island v. Palmer, 253 II. S. 350, 40 Sup. Ct. 588, 64 L. Ed. 946, and State v. Ceriani, 96 Conn. 130, 113 Atl. 316. Neither of these decisions discusses ‘ ‘ concurrent action. ” “ Concurrent power” was the subject there defined, and the definition was given in outlining the respective powers of the federal and state governments under the Federal Prohibition Act (41 Stat. 305), a question that has no relation to the duties imposed upon county boards by sections 1035 and 1024 of our Codes. Webster defines “concurrent powers” as, “political powers exercised independently in the same field of legislation by both *129 federal and state governments. They exist especially in taxation, borrowing, and' prohibition.” The same authority defines “concurrent” as united in agreement. And even if the legislature intended to make any such finespun distinction as is contended, which we do not concede, the respondents and interveners would not be injured, as it very clearly appears that the result would have been precisely the same if the respective boards had met “concurrently,” “jointly” or in any other manner, and one who is not injured will not be heard to complain. The case of Leonard v. Benton County, 194 Iowa, 1250. 191 N. W. 141, 144, is also referred to. The controversy there arose over the construction of the following statute: “The establishment, vacation or alteration of a road, either along or across a county line, may be effected by the concurrent action of the respective boards of supervisors in the manner above prescribed. The commissioners in such cases must act in concert, and the road shall not be established, vacated or altered in either county until it is so ordered in both.” (Code Iowa 1897, sec. 1510.) The court there held: “We have no statute authorizing such session as was held at Brandon, pertaining to road matters. In our statutes pertaining to the establishment of a drainage district proposed to be located in two or more counties, provision is made for a joint session of the boards of the several counties, and it is provided that notice be given to all parties interested of the time and place of such joint session. But in the establishment of a highway touching two counties, as in the instant case, we have no statute providing for a joint session of the boards to pass upon the establishment of a highway.” Such is not .the situation that confronts us. For the reason that in this jurisdiction, as heretofore stated, when a duty is imposed and no mode prescribed, the officials may adopt such mode as is suitable. The fact is that the determinative question in the ease at bar is the very simple one of what confronts this court when the officials who have the right to review the decisions of some board or commission can arrive at no conclusion by reason of being *130 equally divided. When such a matter is brought here for conclusion, as in the instant case, where the decision of the county superintendents was appealed from, we, in accordance with the established rule, must hold that the decision of the superintendents appealed from shall stand affirmed. If a contrary rule maintains in any other jurisdiction, it has not come to our attention. This matter has been pending on hearing and rehearing in this court for more than six months, and the school year of 1938-39 is well advanced, and it has been suggested that to issue the writ now would be too late. The primary purpose of this proceeding was to determine whether or not School District No. 8 had been legally created. True, the test arises on the petition for the writ to compel the board to act on the budget, but the respondent board by its refusal in the first instance to proceed according to law is responsible for the existing situation and may not be heard to complain. Furthermore, under the Budget Law, the approval of a budget is required not merely for the purpose of furnishing a basis for a levy of taxes, but its approval is a necessary prerequisite to the issuance of warrants as disclosed by section 1019.14, Revised Codes. Since District No. 8 is a valid district, and required by law to conduct school and incur district expenses, and since it is entitled to receive and expend other funds than those derived from district levies, such as the funds received from the State Interest and Income Fund, the Forest Service Fund, the Teachers Unit Fund, the Transportation Fund, and all funds properly entered under items 1 and 4 of the form prescribed by section 1019.9, it is apparent that the district is at this time entitled to have its budget approved so that its expenditures of such funds may conform to the requirements of sections 1019.14 and 1019.22, Revised Codes, the Budget Law. Again, we know of no reason why the revenues which the new school district was entitled to have collected on the property within the boundaries of that district and which we think necessarily must have been collected under the old regime, cannot now be determined and the balance paid into the treas *131 ury for the benefit of District No. 8 for the balance of the school year, and upon that being done it may be accepted as compliance with the writ. Relators had an absolute right to have respondents act. Let the writ issue. Mr. Chief Justice Johnson and Associate Justice Stewart concur.