School Dist. No. 44, Caddo Co. v. Turner

Opinion of the court by HaiNER, J.: There are but two questions involved in this appeal: first, has the county superintendent power and jurisdiction to change the boundaries of a regularly organized *74 school district, by detaching a portion thereof, and forming and creating thereby a new district, until a petition has been duly presented to him, signed by at least one-third of the legal voters of said school district, and until the notice required by the statute has been given ? second, if the county superintendent, without such petition, and without such notice, arbitrarily attempts to detach a portion of the territory from said school district, will injunction lie? In our opinion, the first question must be answered in the negative, and the second in the affirmative. By the act of March 11, 1897, (session laws of 1897, pages 271 and 272) it wa's provided that section 12, article 1, chapter 73, of the statutes of 1893 be amended as follows: “That no district shall be changed under the provisions of this act, except upon petition to the county superintendent, signed by at least one-third of the qualified electors of such district.” The same act provides that no change shall be made until after twenty days’ notice thereof, by written notice, posted in at least five public places in the district so affected. Manifestly the county superintendent has no power or jurisdiction to change or alter the boundaries of a school district until the statutory provisions have been strictly complied with. The filing of- a petition signed by at least one-third of the qualified electors of such district, and the giving of twenty days’ notice are clearly jurisdictional facts. The language of the statute is clear, positive and mandatory. It leaves no discretion with the county superintendent. It follows that the attempted change of the boundaries of the district by the county superintendent, before a proper petition was filed and the statutory notice was given, was an ar *75 bitrary exercise of power, wholly unauthorized, and therefore absolutely null and void. (Dartmouth Sav. Bank v. School Dists. Nos. 6 and 31, 43 N. W. 822.) The action of the defendant in error being wholly void, injunction was the proper remedy. (Board of Education v. Boyer, Supt., 5 Okla. 225; Peth et al. v. Martin et al., 71 Pac 549.) The judgment of the district court of Caddo county is therefore reversed, and the cause remanded with directions to overrule the demurrer to the petition, and to further proceed in consonance with the views herein expressed. Gillette, J., who presided in the court below, not sitting; Burford, C. J., absent; all the other Justices concurring.