Common Sch. Dist. No. 32 v. Indep. Sch. Dist. No. 56

This is an original proceeding for a writ of certiorari for the purpose of having this court review and vacate an order made by the county superintendent of public instruction of Creek county and affirmed on appeal by the board of county commissioners of Creek county, transferring certain portions of common school district No. 32 of Creek county to independent school district No. 56 of said county.

Section 2, art. 6, c. 219, Session Laws 1913, and section 11, art. 2, c. 219, Session Laws 1913, together provide that appeal may be taken from the action of the county superintendent of public instruction transferring territory to an independent school district to the board of county commissioners, and that the decision of the county commissioners shall be final. There being no appeal or other adequate remedy, the writ of certiorari will lie to bring up the record of commissions or boards created by law for review as to jurisdictional errors only. Baker v. Newton et al., 22 Okla. 658, 98 P. 931; In re Benedictine Fathers of Sacred Heart Mission, 45 Okla. 358,145 P. 494; Tiger et al. v. Creek County Court et al.,45 Okla. 701, 146 P. 912; Parmenter v. Ray, 58 Okla. 27,158 P. 1183; Grady County v. Chickasha Cotton Oil Co., 63 Oklahoma,164 P. 457. 458; Southern National Bank v. Wallace, 63 Oklahoma, 164 P. 461, 462.

" 'Jurisdiction' is the power to hear and determine the subject-matter in controversy between parties to an action or in a statutory proceeding; to adjudicate or exercise any judicial power over them. It does not relate to the rights of the parties, as between each other, but to the power of the court." Parmenter et al. v. Ray, supra.

It is the contention of the petitioners that the board of county commissioners exceeded its jurisdiction in affirming an order of the county superintendent of public instruction transferring a portion of the territory of common school district No. 32 to independent school district No. 56. Section 2, art. 6, c. 219, Session Laws 1913, which provides for the transfer of territory to an independent school district, contains the following proviso:

"* * * And provided, further, that the boundary of any district shall not be changed in annexing territory to an independent district, or to a city or town, constituting an independent district, so that the assessed valuation of the original district shall be reduced more than five per cent. of the assessed valuation."

It is stipulated by the parties to the proceeding that making the proposed transfer would reduce the assessed valuation of common school district No. 32 more than 5 per cent. Counsel for defendants state that they are unable to find any law to sustain the position of the defendants, and ask that they be not required to file brief. It seems clear that the board of county commissioners has exceeded its jurisdiction, and that the order made by it affirming the order of county superintendent of public instruction transferring territory from common school district No. 32 to independent school district No. 56 is void. Counsel stipulate that the issuance of the writ of certiorari may be waived, and the case submitted upon an agreed statement of facts.

The board of county commissioners of Creek county having exceeded its jurisdiction, its order affirming the order of the county superintendent of public instruction, which order was also void, is a nullity, and the same is hereby set aside.

OWEN, C. J., and RAINEY, HARRISON, and JOHNSON, JJ., concur.