Bobbitt v. Blake

SULLIVAN, J. This action was brought in the district court of the second judicial district in and for the county of Clearwater for a writ of review, requiring the board of county commissioners of Clearwater county to certify fully to the court a transcript of the record and proceedings of said board, whereby said board organized School District No. 34 of Clear-water county out of that portion of Joint School District No. 18 lying within the county of Clearwater, and other territory, [56] and segregating therefrom all the territory lying and being within the boundaries of Nez Peree county, in order that the action of the board might be reviewed by said district court. Upon said complaint the district court issued the alternative writ of review and the defendants, the board of county commissioners of Clearwater county, appeared and demurred to said complaint, and the demurrer was sustained and the plaintiffs refused to amend their complaint and judgment of dismissal was entered. This appeal is from the judgment. The following facts appear from the record: In the creation of Clearwater county out of a portion of Nez Perce county, the boundary line separating the two counties divided School District No. 118, which was at the time of the creation of Clearwater county a school district within Nez Perce county. Thereafter, by mutual agreement of the school superintendents of the two counties, the name and number of said school district was changed from School District No. 118 to Joint School District No. 18 in Nez Peree and Clearwater counties, but no change in the boundaries of said district was made. Thereafter on May 31,1912, there was filed with the defendant board a petition for the creation of a common school district out of that portion of Joint School District No. 18 then lying within the boundaries of Clearwater county, entirely segregating therefrom all that portion of said Joint School District No. 18 then lying within the boundaries of Nez Perce county. Thereafter further proceedings were had and a petition and remonstrance were filed with the board of county commissioners for and against the creation of said district, and at a regular meeting of said board held on July 12, 1912, the petition was granted and School District No. 34 in Clearwater county was created by said board out of the portion of said Joint School District No. 18 lying within Clearwater county and other territory. No appeal was taken from said order and this action was brought in the district court on the 23 d day of December, 1912, nearly six months after the county commissioners made the order creating said school district. The defendant board of Clearwater county appeared and demurred to the complaint and the demurrer was sustained. [57] The main question presented for determination in this case is whether the board of county commissioners of Clearwater county had jurisdiction or authority to create said school district. If the county commissioners had authority to act in the matter, then the judgment of the district court must be affirmed. The board clearly has the authority and power to create new districts or change the boundaries of existing districts. (Laws 1911, p. 500.) See. 1950, Rev. Codes, provides that “Any time within twenty days after the first publication or posting of the statement [of the proceedings of the board of county commissioners], as required by paragraph 19 of section 1917, an appeal may be taken from any act, order or proceeding of the board, by any person aggrieved thereby, or by any taxpayer of the county,” etc. By said provision an appeal may be taken from any order or proceeding of the board of county commissioners and this court has held that every act, order or proceeding of the board of county commissioners is appealable except an order of such board made while sitting as a board of equalization. (General Custer Min. Co. v. Van Camp, 2 Ida. 40 (44), 3 Pac. 22; Feltham v. Board of Commrs., 10 Ida. 182, 77 Pac. 332; Humbird Lumber Co. v. Morgan, Judge, 10 Ida. 327, 77 Pac. 433; School List. No. 25 v. Rice, 11 Ida. 99, 81 Pac. 155.) A person aggrieved by an order of the board of county commissioners establishing a school district should appeal from such order, and cannot attack the order for want of jurisdiction of the commissioners to make the same in a collateral proceeding. Under the provisions of see. 4962, Rev. Codes, the writ of review cannot be granted where there is an appeal or in the judgment of the court any plain, speedy or adequate remedy. "Writs of review do not lie from the action of a board of county commissioners creating a new school district since the statute has provided a plain, speedy and adequate remedy by appeal. (Rogers v. Says, 3 Ida. 597, 32 Pac. 259; Canadian Bank of Commerce v. Fremont Wood, Judge, 13 Ida. 794, 93 Pac. 257; Coeur d’Alene Min. Co. v. Woods, Judge, 15 Ida. 26, 96 Pac. 210.) [58] Since the appellants had a plain, speedy and adequate remedy at law, they were not entitled to a writ of review and the judgment of the district court must therefore be affirmed and it is so ordered, with costs of this appeal in favor of the respondents. Ailshie, C. J., and Stewart, J., concur.