Tilley v. Board of County Commissioners

Opinion of the court by Burwell, J.: The county superintendent of Greer county, under the power granted in the statute, created a new school district. There was a protest against the order made, and an appeal was duly taken to the board of county commissioners, who, after a hearing, affirmed the order made by the county superintendent. The protestants then filled a motion for a rehearing which, on the next day, was sustained, and the plaintiff in this case, who is a resident of the new district and patron of the school, commenced this action to enjoin the board from proceeding further in the matter, contending that the first order was final, and that it had no power to reconsider its decision first made. The probate court, in the absence of the district judge, granted a temporary injunction. Wien the case came up in the district court, a- demurrer to the petition was sustained and the temporary injunction dissolved. The plaintiff stood on his petition and appealed to this court. The judgment should be affirmed. It is a general rule that boards of county commissioners may reconsider their action on any matter at the same session or at the same term, unless vested rights have accrued under the former order, or an appeal has been allowed. (11 Cyc. *221 page 403, sec. g.) Neither exception applies in this case. The authorities cited by appellant are not controlling in this case. It is true that the power of the board in these cases is special and limited, and must be exercised strictly on the conditions named in the statute, as held in the case of State, ex rel. Attorney General v. Secrest, et al., (Kan.) 57 Pac. 500; and while the order made in that case by the board, in which it vacated its former order, was held to be in excess of its power, it should be remembered that it was made without notice, and the reconsideration of its former decision was held to be in excess of its power, on the ground that no notice was given that it contemplated a reconsideration of the matter. In the syllabus it is said: “When the appeal is heard and decided and the board adjourns till the following month, the parties interested in the appeal have a right to infer that the decision is final, and the board is not authorized to take up and rehear the appeal at the following meeting without notice.” In the ease under consideration it will be presumed that all parties had notice, because they were all there and were heard on the motion to reconsider. In a case of this kind the board must act promptly and at all times protect all parties in their right of appeal; but if the board actually made a mistake we see no good reason why they may not correct it upon due notice, unless an appeal has been allowed or rights accrued under their former order, and, as stated before, neither exception applies in this case. The judgment is affirmed at the cost of appellant. Irwin, J., who presided in the court below, not sitting; Beauchamp, J., absent; all the other Justices concurring.