DocketNumber: No. 13,105
Citation Numbers: 69 Neb. 100
Judges: Albert, Barnes, Glanville
Filed Date: 5/20/1903
Status: Precedential
Modified Date: 7/20/2022
The relators commenced this action in the district court for Cass county, for the purpose of procuring a peremptory writ of mandamus, against the hoard of county commissioners and the county clerk -of said county, requiring the commissioners to levy a tax of two mills on the dollar valuation of all taxable property in the territory comprising ninety-five school districts situated therein, and to compel the county clerk to extend such tax upon the tax list of said county for the year 1902, for the purpose of meeting the expenses of carrying on the business of an adjunct school district, which it was alleged in the petition had been created under the provisions of chapter 63 of the laws of 1901, which we will designate as the “Adjunct School District Act,” comprising all of the school districts in said county, and the territory embraced therein, except five.
It appears from the record that Cass county is divided for scliexd purposes into one hundred school districts; that in ninety-five of these districts the electors are. entitled to vote on the question of establishing an adjunct district, but that districts numbered 1, 22, 82, 36 and 95 are high school districts, and can form no part of such adjunct district; that the relators are resident electors of certain school districts in said county, and each of them has a child, who has completed the course of study in the school of his respective school district and whose education can not profitably be carried further in the public schools of the district of his residence, and who is entitled to pursue the course of study provided by law in the high schools of said county; that the districts in which the relatoi-s reside are
“notice.
“For the Annual School District Meeting.
“The annual meeting of the legal voters of school district No.-of Cass county, Nebraska, will be held at the schoolhouse on Monday the 30th day of June, 1902, at 8 o’clock P. M. for the purpose of electing a director for said district, and for the transaction of such other business as may lawfully come before it.
“'-, Diréctor.”
This was the only notice ever published or posted relat
The first question .which confronts us is, was the proposition to. create an adjunct school district lawfully submitted-to the electors of all of the school districts comprising the territory sought to be included in such district? We think not. Waiving the question of the validity of the act, it appears from its terms that it was self-executing as to the submission of the question to the voters at the first annual school meeting after it went into effect. Section 4 reads in part as follows:
“For the purpose of meeting the expenses contemplated by this act, all of the territory of each county of this state not included in any high school district may be constituted as an independent taxing district known as the adjunct district of such county; the common school districts or parts of districts included in such adjunct district shall be the voting precincts of such adjunct districts; it is hereby made the duty of the moderator of each common school district in this state to submit the question of the establishment of an adjunct district in the county in which it is located to a vote of the legal voters of his district at the annual meeting of said district next occurring after the taking effect of this act, and to certify the result of such vote to the county superintendent.”
It appears that these provisions of the law were understood by the moderators and electors of the school districts of the county, and the question was properly submitted to the voters at the annual meeting in 1901; that great interest was taken therein; that there was a large attendance of the electors at that meeting and that the proposition failed to carry. This self-executing provision of the law, had then served its purpose and could not be held to require another, submission of the question. It is further provided in the act that:
“If the vote provided for in this section in any county
This part of the law is simply permissive, and is in no sense mandatory. If the question be again submitted, it is necessary that'there should be some officer authorized to determine that fact and give notice thereof to the voters of the several school districts to be affected thereby. The self-executing provisions of the law contain no authority and provide no method for a second submission of the question, and the only provision therefor is the one above quoted. The facts in this case clearly show the necessity of having some officer or person designated by the act itself who has the power and is charged with the duty of submitting the question and giving the proper notice thereof, so that there may be a concerted action of all of the school districts interested or affected by the creation of an adjunct district. No such officer or person is designated by the act. The court can not supply this deficiency of the law. To do so would be to engage in judicial legislation. In case the county superintendent, or any other officer or person should assume to submit the question and give the notice of submission, such action would be of no force or effect whatever. As the law stands there is no way of procuring concerted action. It simply provides that the question may be again submitted to the.common school districts embraced in the proposed adjunct district. This must be construed to mean all of the districts, and it can not be said that a submission to any number less than all of them is a valid submission or will result in a valid election.
In the case at bar, it appears that a large number of the school districts embraced in the proposed adjunct district took no part in the election, and the question was not submitted to the voters of such districts at their annual school
It follows that the finding of the trial court in favor of the respondents is sustained , by the record, and the judgment denying the writ Avas right. We therefore recommend that the judgment of the district court be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court denying the peremptory writ of mandamus in this case is
Affirmed.