State ex rel. Coatsworth v. Olson

SMITH, J. Certiorari from the circuit court of Gregory county to review the action of the 'board of county commissioners and county superintendent in dividing Jones school district and creating a new district on lines different from those asked for in the petition. The circuit court set aside and annulled the proceedings of the special board, and defendant appeals. The question decisive of the appeal is whether boards of county commissioners and county superintendents have authority, under the provisions of section 73, c. 135, Laws 1907, to' create a new school district by the division of an existing school district. For the purposes of this appeal, it is sufficient to observe that chapter 135, Laws 1907, is an act “to establish a uniform system of education for the state of South Dakota and to repeal certain legislation relating thereto.” [582] Section 245 of -the act repeals all existing school laws in conflict, and declares that one of the purposes of the act is to “rearrange, collect and codify the laws of the state relating to the public schools.” By section 66 of the act, all existing school districts containing one or more schools, except independent districts, are recognized as school districts. By section 67, in all counties organized for school purposes under the district -system, each school district remains a school district corporation until changed as therein provided, and each township not organized into a civil township constitutes a school district corporation until changed as therein provided; and nothing 'in .the act is to be construed to change the boundary lines of any school district, or of any school township, except as therein provided. Section 68 is as follows: “In any county now or hereafter organized, the county commissioners shall divide the county, or the settled portions thereof, into school districts. In the formation of such districts. and the formation of their boundaries as provided for in this section, boundary lines of congressional townships shall'be made the boundary lines of .the districts: Provided that the commissioners may, at their discretion, when for the best interests of the schools, organize one of more congressional townships into one school district. * * *” Section 70 of the act provides: “Upon the receipt of a petition signed by a majority of the qualified electors of any civil township in said county having districts smaller than civil townships, the county commissioners and the county superintendent of schools shall declare that the school districts shall comprise a school township district, and the county superintendent shall appoint the necessary officers as hereinafter provided in section go, who shall hold until the next election.” Apparently the purpose of these sections was to adopt a system making the boundary lines of all school districts coincide with the boundary lines of congressional townships. Under section 68 the county commissioners are directly authorized and required to do this; and when the best interests of the schools, in their judgment, require they may organize one or more congressional townships into a -single school district. Under the provisions of.,section 70,-.the board, upon a petition signed by a majority of the qualified electors of any civil township having districts smaller than civil townships, may con583 solídate the smaller districts and substitute therefor a school township district, and .the county superintendent is authorized to appoint necessary officers for the single new township district, to hold until the next election. Section 73 provides as follows: “After the boundary lines of the several school districts in a county are established, such boundaries at any regular meeting may be changed by the board of county commissioners and the county superintendent of schools upon a petition for such change signed by ten legal voters residing in .the districts .to be affected by'the change; due notice having been given by the county auditor to the school hoards of the districts to be affected by such proposed change, if in the judgment of the commissioners and the superintendent such change is for the best interest of the patrons of the schools: Provided that when petition is made for the formation of a district from parts of two or more counties, the commissioners of the said counties may in their discretion appoint a joint commission to establish the boundaires of the proposed district and to adjust all the accounts relatng thereto. The said joint commission shall appoint the necessary officers in said district. It shall be the duty of the county superintendent of the county in which the schoolhouse of said district is located to fill all vacancies that may occur thereafter, to license the teacher for said school and to have supervision of the same. Whenever district boundaries shall be changed under the provisions of this article, it shall be the duty of the county commissioners and the county superintendent to make an apportionment of property and indebtedness as hereinafter provided. * :|: * ” Counsel for appellant rely upon the decision of this court in School District v. County Commissioners, 9 S. D. 291, 68 N. W. 746. That case involved the formation of a new district out of portions of three existing districts. Section 3, c. 3, Laws 1893, p. 113, provided for the subdivision of township districts into sub-districts of one school each, upon a petition and vote. No provision was made for division of existing districts other than township districts. The court held, in effect, • that, in the absence of a statute expressly authorizing the creation of a new district out of portions of two or more existing districts, it might reasonably be supposed it was the intention of the Legislature to authorize the county commissioners and county, superintendent to accomplish [584] that end under the provisions of section 6, c. 3, of the act of 1893, p. 114 (section 73, c. 135, Laws of 1907), which provided for changes of boundaries of existing districts. Section 3, supra, re-enacted as section 69, c. 135, Laws 1907, was there amended to ¿over the division of all school districts, and the creation of new districts upon a petition and vote. State ex rel. Koontz v. Brown, 25 S. D. 74, 125 N. W. 294. We are inclined to the view that this amendment was intended to meet conditions similar to those involved in the Lincoln County Case, and that the views expressed in that case as to the creation of new' districts by the change of boundary lines, under the law then existing, ‘ should not be held controlling under the present law. An important limitation is found in section 70, not contained in ¡section 73. Under the latter section boundaries may ibe changed upon a petition signed by 10 legal voters residing in the district, to be affected; while such change under section 70, resulting in the creation of a new district, can ¡be made only upon the presentation of a petition signed by a majority of the qualified eléctors of the civil township to be affected. An examination of the sections of the act of 1907, providing for the creation of new districts, discloses that in every instance provision is made for appointment of officers of the new districts. No -such provision is found in section 73, authorizing changes of boundares by the county commissioners and county superintendent, except in the single instance where aúthority is expressly given to create a new district out of portions of* two counties. A careful examination of the provisions of the act of 1907 convinces us that -it was not the legislative intent to authorize the county commissioners and county superintendent to create new districts by changes in boundary lines, upon a petition signed by only 10 legal voters. It will be observed that in each section expressly providing for the creation of new districts, with the single exception contained in section 73, the consent of a majority of the legal voters residing in the territory to be effected is required, either at an election provided for in section 69, or by a petition, as provided in section 70. Apparently the Legislature deemed the creation of new districts by the division of existing districts a matter of such importance as to require the action of a majority of the legal voters [585] affected thereby; and it can hardly be presumed it was also the Legislative intent to clothe the -county commissioners ^n-d county superintendents -with authority to- impose, upon -the electors new school districts, merely upon the presentation of 'a petition signed by io legal voters of -the district to be áffected. We are satisfied that section 73 was enacted for an entirely different purpose, and was intended to authorize the county commissioners and county superintendents to readjust -boundary lines, upon the petition of 10 legal voters, for the convenience of residents of existing school districts, and was not intended to authorize the creation of new and additional districts. We may note the fact that chapter 242, Laws 1909, is not an amendment t-o section 69, c. 135, Laws 1907, but we think was intended to make clear the first proviso in section 68 of that act. Chapter 242, supra, strongly reinforces the view above expressed as to the legislative intent in the matter of the creation of new school districts. It requires a petition signed by two-thirds of the electors of the congressional township affected by the creation of a new district, and also provides for the appointment of officers for the same. Other questions raised on the appeal become immaterial. The judgment and order of the trial court are affirmed.