BOARD OF EDUC. OF NOWATA v. McCRACKEN

BOARD OF EDUC. OF NOWATA v. McCRACKEN
1917 OK 49
162 P. 782
62 Okla. 173
Case Number: 7888
Decided: 01/09/1917
Supreme Court of Oklahoma

BOARD OF EDUCATION OF CITY OF NOWATA
v.
McCRACKEN, County Assessor, et al.

Syllabus

¶0 1. Statutes--Formation of School Districts--Repeal. Section 7781, Rev. Laws 1910, is by implication repealed by section 11, art. 2, ch. 219, Sess. Laws 1913, p. 496.
2. Schools and School Districts--Formation of Districts--Appeal. Under section 11, art. 2, ch. 219, Sess. Laws 1913, an appeal lies to the county commissioners of the county from the action of the county superintendent of public instruction upon proper application, refusing to form a new school district.
3. Same. By serving upon the county superintendent of public instruction a written notice of appeal, setting up the objections to the action of such county superintendent appealed from the county commissioners, upon such notice of appeal being filed with them, acquired jurisdiction of such appeal; and held, further, that the provision of the statutes, requiring the filing of a copy of notice of such appeal with the county clerk and the clerks of school districts affected, were sufficiently complied with in this case.

Lawson & Cox, for plaintiff in error.
Glass & Weaver, for defendants in error.

COLLIER, C.

¶1 This in an action for injunction brought by the plaintiff in error, hereinafter styled plaintiff, against the defendants in error, hereinafter designated as defendants, to restrain the creation of a new school district in Nowata county. A temporary injunction was granted by the judge of the county court in the absence of the district judge, which was afterwards dissolved by the district court, and upon the final hearing of the cause the injunctive relief prayed for was denied and plaintiff''s petition dismissed, to which the plaintiff duly excepted. Timely motion for a new trial was made and overruled, to which plaintiff duly excepted, and brings error. There are many errors assigned; but, as stated by plaintiff in error in their brief, there are but two propositions involved, only said two propositions argued, which are as follows: (1) That under the statutes in force on the date in question there was no provision of law authorizing an appeal from a decision of a county superintendent of public instruction, refusing to form a new school district from portions of existing districts; (2) that if an appeal from a decision of the county superintendent, refusing to form a new school district from parts of old districts, was authorized, the required notice of said appeal was not filed, and the county commissioners were without jurisdiction to consider the same, and their judgment of reversal is void. Under the questions involved in this appeal, it is unnecessary to recite any of the evidence other than that relating to the service and filing of notice of the appeal from the action of the county superintendent of public instruction in refusing to create the new district. The uncontradicted evidence is that proper notice of the appeal was served upon the county superintendent, and that copies of the notice of appeal from the action of the county superintendent of public instruction were filed with the county clerk and with all of the clerks of the various school districts affected, other than district 40; that in district No. 40 the secretary of the school board was absent from the state, and no notice was filed with him, but a copy of the notice of appeal served upon the county superintendent of public instructions was put under the door of the office of said secretary of said board; that at the time the same was so placed therein the secretary was absent from said office, and said office was locked, and that copies of said notice of appeal were also filed with the several school officers of said district No. 40. It therefore follows that the first question to be determined is: What law existed at the time? It is contended on the part of plaintiff that section 7781, Revised Laws 1910, is repealed by section 11, art. 2, ch. 219, Session Laws 1913, p. 496; while it is contended on the part of defendants that said section 7781 Rev. Laws 1910, is not repealed by said section 11, supra. We are of the opinion, and so hold, that said section 7781, supra, was repealed by said section 11, art. 2, ch. 219, Session Laws 1913, for the reason that said section 11 revised the whole subject-matter contained in said section 7781, and that said section 11, supra, was doubtless intended as a substitute for said section 7781, Rev. Laws 1910, notwithstanding it does not contain express words of repeal. Hudson v. Ely et al.,

¶2 The cause is affirmed.

¶3 By the Court: It is so ordered.