STATE ex rel. v. ROSS.

STATE ex rel. v. ROSS.
1919 OK 257
183 P. 918
76 Okla. 11
Case Number: 10779
Decided: 09/16/1919
Supreme Court of Oklahoma

STATE ex rel.
v.
ROSS.

Syllabus

¶0 1. Mandamus--Jurisdiction of Supreme Court--When Exercised.
The power of the Supreme Court to grant mandamus and to hear and determine the same as authorized by sec. 2, art. 7, Constitution, will be exercised only when the questions involved are publici juris, or when some unusual situation exists, whereby not to entertain jurisdiction would work a great wrong or result in a practical denial of justice.
2. Same--School Officers--Jurisdiction of Supreme Court.
Where an action in mandamus has been brought by the state on the relation of the Attorney General against a county superintendent of public instruction in the district court having jurisdiction to compel the performance of a ministerial duty arising under sec. 2, art. 7, chap. 219, Session Laws 1913, and such court erroneously holds that the parties have a remedy at law by appeal and refuses to entertain jurisdiction, and the effect thereof, if an appeal there from were prosecuted to this court, would in the ordinary course of the law, be to work great delay in the opening of the public schools of the affected districts, the Supreme Court will entertain and exercise its original jurisdiction by mandamus so as to prevent a denial of justice.
3. Schools and School Districts--Consolidation--Duty of Superintendent.
The duties imposed upon a county superintendent by sec. 2, art. 7, chap. 219, Session Laws 1913, in respect to declaring school districts disorganized and a consolidated district composed thereof organized, involve the exercise of no discretion on the part of such superintendent, but are purely ministerial in their character, and their performance may be enforced by mandamus brought in the Supreme Court, in proper cases.
4. Same--Appeal to State Superintendent.
Sec. 2, art. 4, chap. 219, Session Laws 1913, providing that "in the alteration of or refusal to alter, the boundaries of any joint school district," any person or persons aggrieved thereby may appeal to the state superintendent of public instruction, affords no remedy to the officers or school patrons of a consolidated school district organized under the provisions of art. 7, chap. 219, where the county superintendent of public instruction refuses or neglects to perform the duties enjoined upon him by sec. 2 of the act, governing the formation of consolidated school districts, whether such consolidated district be comprised of territory located in one or more than one county.
5.Mandamus--Schools--Sufficiency of Petition.
Petition examined, and held sufficient to state a cause of action entitling the relator to a peremptory writ of mandamus.
6. Same--Answer--Sufficiency.
In a mandamus proceeding begun against a county superintendent to compel the performance of the duties of his office, an answer that "defendant is not in a position to admit or deny the material allegations therein contained, and therefore asks that plaintiff be required to make proof thereof," does not traverse or deny the facts alleged in the relator's petition, and, in effect, is an admission of such allegations.
7. Pleading--Answer--Sufficiency.
An answer which confines itself to denying, in the same words, an allegation of the petition, and does not attempt to deny its substance and spirit, admits the material averments of the petition and only raises an immaterial issue.

Original application for mandamus by the State of Oklahoma on the relation of S. P. Freeling, Attorney General, against Mrs. A. K. Ross, respondent. Peremptory writ granted.

S. P. Freeling, Attorney General, R. E. Wood, Assistant Attorney General, for relator.
Adams & Wills, Harris & Howard, of counsel; Mack R. Shanks, County Attorney, D. M. Battenfield, Assistant County Attorney, and H. Tom Kight, for respondent.

SHARP, J.

¶1 The proceedings in this case grow out of the efforts of the electors of School District No. 28, Rogers county, and School District No. 14, Tulsa county, and a portion of School District No. 17, Tulsa county, to organize a consolidated school district, under and pursuant to the provisions of art. 7, chap. 219. Session Laws 1913. The Attorney General was permitted to file the action upon a showing made meeting the requirements of rule 15 of the Supreme Court. The facts will sufficiently appear from a consideration of the several propositions involved.

¶2 It is first contended that the question involved and necessary to a determination of the case is not publici juris, hence this court is without jurisdiction. Counsel cite in support of their contention the case of State ex rel. Freeling v. Lyon,

¶3 We shall not undertake to enter upon a general discussion of the authorities defining the limitations of courts of last resort, in states having organic provisions similar to sec. 2, art. 7, of our Constitution, or to attempt to reconcile the apparent divergence of views upon the question of jurisdiction, for the reason that it seems to be very generally and wisely held, that upon sufficient showing the court should exercise original jurisdiction in cases involving an unusual situation, or where to decline to entertain jurisdiction would work a great wrong or result in a practical denial of justice. Such a case we think is presented by the record at hand. In the first place, the case is brought by the state on the relation of the Attorney General, who, among other allegations, charges that School District No. 28 of Rogers county, and School District No. 14,of Tulsa county, and a portion of School District No. 17 of Tulsa county, on account of the action of the respondent, are now in a disorganized condition; that the time for the officers of the school districts, whether separately or as a consolidated district, in which to make up their estimates of revenues and expenses for the coming year is at hand; that the school districts, either separately or as a consolidated district, will require the services of a large number of teachers, and that it is necessary for this court to determine the matters herein submitted not only in order that such district or districts may know their legal status, but that those who may contract with them, either as teachers or who may furnish supplies, may know and be advised as to the legal status of such district or districts; that in order for school or schools to be conducted therein for the coming school year such contracts will have to be expressly made and entered into, and if a decision of this case upon its merits shall be delayed for any considerable time, it will deprive several hundred children of school age, residing within the territory contained within such school districts, of the rights, privileges and benefits of attending such schools for the period during which such litigation is pending. Also it is made to appear that until a final decision is reached, it cannot be known who has the power to make the necessary estimates to the excise board upon which to procure a levy of taxes upon which to conduct a school in the affected territory. Furthermore, it is made known to the court that on the 7th day of July, 1919, an original application for mandamus was presented to the district court of Rogers county, and denied on the grounds "that the plaintiffs in said application had an adequate remedy at law by appeal." That if an appeal were taken from the action of the district court to this court in that case, considerable time would elapse before a decision could be reached and the court could then only determine the question of the trial court's action in refusing to entertain jurisdiction; that in the event of a reversal of such judgment, the cause would be remanded to the district court of Rogers county, "and that before a final determination of said matter could be had, many months would probably elapse."

¶4 It is in this class of cases that the Supreme Court should and will entertain original jurisdiction. The newly elected officers of the consolidated district, the school patrons, and the Attorney General of the state have with commendable zeal exercised every power at their command to speedily end the controversy into which the district has become involved by the conduct of the respondent. The Constitution, by sec. 1, art. 13, provides that the Legislature shall establish and maintain a system of free public schools wherein all the children of the state may be educated. In a sense at least the question involved is publici juris, though the interest of the state at large may not be directly involved, its sovereignty violated, or the liberty of its citizens menaced. The public schools of the state are a matter of general state concern, as distinguished from a purely local or municipal affair. Board of Education v. Best,

¶5 That the court should in exceptional cases entertain original jurisdiction, and that such was in the mind of the court in the preparation of the Homesteaders case, appears clear from the authorities cited, particularly the cases of: Attorney General v. Eau Claire, 37 Wis. 400; State ex rel. Wood v. Baker, 38 Wis. 71; State ex rel. McIlhany v. Stewart, 32 Mo. 379; Wheeler v. Northern Colorado Irrigation Co., 9 Colo. 248, 251,

¶6 Has the plaintiff a plain, speedy and adequate remedy at law by appeal to the State Superintendent of Public Instruction? Counsel having seemingly overlooked the fact that the present action is one prosecuted by the state on the relation of the Attorney General, and not by the electors, taxpayers and public school patrons of the consolidated school district, though brought at their instance. No statute has been called to our attention, and we know of none, whereby the state may appeal in matters affecting the organization of consolidated school districts. The statute relied upon by counsel (sec. 2, art. 4, chap. 219, Session Laws 1913) provides only for an appeal by "any person or persons (who) shall feel aggrieved." But this statute involves only the organization of joint districts, which we understand are nothing more nor less than ordinary school districts lying partly in two or more counties. In the formation of such districts no election is held, the statute requiring only that "when application shall be made in writing to any one of them (superintendents) by five householder residents therein," the county superintendents of the respective counties shall, if by them deemed necessary, meet and proceed to lay off and form a joint school district. If, in the alteration of, or refusal to alter, the boundaries of any joint district, any person or persons shall feel aggrieved, such person or persons may appeal to the State Superintendent of Public Instruction within ten days after the rendition by them of the decision appealed from. The instant case presents no such situation, but instead involves the organization of a consolidated school district. In order to organize such a school district, whether composed of territory in one or more counties, an election must be held, as provided for in art. 7, chap. 219, Session Laws 1913, section 1 of which was amended by the act of February 14, 1917 (Session Laws 1917, pp. 473, 474). This is the statute under which the parties proceeded, and the only statute governing the formation of a consolidated school district. While it is true that both joint school districts and consolidated school districts may include territory situated in two or more counties, the mere fact that there is this common provision in the statute affords no sound reason for concluding that because the statute authorizing the formation by the county superintendents of joint school districts provides for an appeal therefrom, that the same right of appeal is given from the action of the electorate in the formation of consolidated school districts. It is true that sec. 8, art. 7, provides generally that in all matters relating to consolidated districts not provided for in paragraphs 1 to 7 thereof the law relating to school districts shall be enforced where said laws are applicable. But even were we to read the words, "school districts" in said section to include the laws governing the formation of joint school districts, and the right of persons affected thereby, still we cannot conclude that it was intended thereby to give the right of appeal to the State Superintendent of Public Instruction and thereby confer on such officer the power to set at naught the result of an election. It is proper that some form of review of the action of the county superintendent or superintendents in the formation of a joint school district should lie. But it would be a most unusual statute that would vest authority in the State Superintendent to pass upon and determine the validity of proceedings had for the formation of consolidated school districts. The right to appeal is very properly given in the one case, while in the other, the statute not being applicable, the right will not be extended by construction. We are aware that these views are to some extent in conflict with Felkner v. Winningham,

¶7 Proceedings begun and which result in the formation of a consolidated school district in no manner involve the alteration of, or the refusal to alter the boundaries of a joint school district; and it is only from such act that an appeal is provided for. Again, the appeal provided for in the section named is one given to aggrieved persons, and is prosecuted from the "decision" of the county superintendent. It is not shown, and in the face of their action in this court it will not be presumed, that either of the officers of the consolidated school district, elected at the time of the election held to organize the consolidated district, or the other electors and taxpayers at whose instance the present action was begun, were "aggrieved persons." They are not complaining, and have not complained, of anything that was done in the formation of the district, but, instead, are grievously complaining of the failure of the respondent, as county superintendent of Rogers county, to perform a plain ministerial duty. This much, in effect, was held in Felkner v. Winningham; while by sec. 2, art. 7, it is required that upon receipt of the report of the clerk of the special meeting, by the county superintendent, such superintendent shall declare the constituent school districts disorganized and the consolidated school districts organized. Where the consolidated district comprises territory lying in more than one county, the county superintendents of the several counties shall act together in doing the things necessary to the formation of the consolidated district. This duty, when, as here, the requirements of the statute have been met, is mandatory, and may be enforced by mandamus. Public officers, such as county superintendents, are charged with the performance of the statutory duties pertaining to their office--not according to their own whims or predelictions, or when it may suit their notions, but as ordained in the statutes and laws of the state. Old as is this rule, and though universally pronounced by the courts, frequent occasions are afforded for its exercise. The law governing the rights of the parties is the same as is that recently announced in the case of Rasure, County Superintendent, v. Sparks et al.,

¶8 The third and fourth points urged in the brief of the respondent may be considered together. The first is that the petition does not state facts sufficient to constitute a cause of action; the other, that the answer contains a defense to relator's cause of action. The first contention is wholly without merit, as the petition clearly makes out a case entitling the state to a peremptory writ of mandamus. The allegations of the petition stand substantially admitted. Paragraphs 1, 2, 3, 4, 6, 7, 8, 10, 11 and 12 of relator's petition are admitted by the failure properly to put them in issue. The answer to paragraph 5 of relator's petition is in form a negative pregnant, and therefore the averments of that paragraph stand admitted. Paragraph 9 is in effect an admission that the report of the secretary of the meeting, duly signed by such secretary, was by him presented to respondent. The paragraphs of the petition other than 5 and 9 all substantially charge that as to such paragraphs "defendant is not in a position to either admit or deny the material allegations therein contained, and therefore asks that plaintiff be required to make proof thereof." section 4745, Revised Laws, by the first subdivision thereof, provides that an answer shall contain "a general or specific denial of each material allegation of the petition controverted by the defendant," while section 4779 declares that "every material allegation of the petition not controverted by the answer * * * shall, for the purposes of the action, be taken as true."

¶9 The answer does not even contain an averment that the respondent is without knowledge or information thereof sufficient to form a belief, or a denial in any form. It simply states that she is not in a position to either admit or deny the material allegations thereof and asks that relator be put upon proof thereof. This is not a sufficient denial--or indeed any denial at all--under the codes of any of the states with which we are familiar. Such an answer is a mere call for proof, and does not serve as a denial, but, by failure to deny, is an admission of the allegations of the petition. Abbott's Trial Brief, sec. 492; Bentley v. Dorcas, 11 Ohio St. 398, 408; Building Association v. Clark, 43 Ohio St. 427, 2 N.E. 846; Ryan v. Anglesea R. Co. (N. J. Ch.) 12 A. 539.

¶10 The remaining paragraphs of respondent's answer are not sufficient to make out a de-dense to the allegations of relator's petition, or, if established, to defeat or set aside the result of the election. Paragraph 13 in part is subject to the same objection as the answer to paragraph 5. It does not directly and without evasion state a defense, except by way of negative pregnant. Other issues tendered involve either immaterial averments, non-essentials or conclusions of law, and do not therefore raise an issue of fact.

¶11 No complaint is made that the county superintendent of public instruction of Tulsa county has neglected or refused to perform the duties devolving upon her in the matter of the "disorganization" of School District No. 14 of Tulsa county, and that part of School District No. 17 in Tulsa county, within the proposed consolidated school district.

¶12 It is therefore ordered that the peremptory writ of mandamus issue to the respondent, commanding and requiring her forthwith to dissolve School District No. 28 of Rogers county, and, together with the county superintendent of Tulsa county, to declare the consolidated district, composed of School District No. 28 of Rogers county and School District No. 14 and that portion of School District No. 17 of Tulsa county included within the proposed consolidated school district, duly organized, and to do any and all acts incident thereto, or necessary to a full and complete organization of such consolidated school district.