ARK.] COMMON SCHOOL DIST; 42 v. STUTTGART 119
SPECIAL SCHOOL DIST. 22. We are of the opinion that the trial court erred- in sustaining the demurrer. The judgment is therefore reversed, and the cause Temanded with directions to overrule the demurrer and for further proceedings. SMITH and MCHANEY, JJ., dissent. COMMON SCHOOL DISTRICT NO. 42 V. STUTTGART SPECIAL SCHOOL . DISTRICT No. 22. 4-3021 Opinion delivered April 3, 1933. 1. SCHOOLS AND SCHOOL DISTRICTS—BOUNDARY AGREEMBNT.—That an • order of the county board of education approving a boundary agreement between - two school districts failed to show that notice of changes in boundary lines was given was cured by Acts 1931, No. 169, § 34, providing that any omissions or defects in procedure of creating school districts theretofore created . by county boards were cured. 2. SCHOOLS AND SCHOOL DISTRICTS—BOUNDRY AGREEMENT—ENFORCEMENT.—A valid boundary agreement between two school districts, providing that students in one district could attend high school in the other held enforceable. 3. SCHOOLS AND SCHOOL DISTRICTS—CHANGE OF BOUNDARIES.—The Legislature is vested with full authority to create school districts and change their boundaries at will, and may delegate this authority to any inferior department of the government. 4. scgooLs AND SCHOOL DISTRICTS—TRANSFER OF CHILDREN.—An order of a county board of education approving a boundary agreement between two school districts providing that students in one of the districts could attend high school in the other district held a valid transfer . of children. Appeal from Arkansas Chancery Court, Northern District ; Harvey R. Diteas, Chancellor ; reversed. STATEMENT rBY TiTE COURT. As it appears from the style of the case, this is a controversy between two school districts over the right of certain high school pupils to'attend school out of thei r residential district." The appellant, Common School District No. 42, Was organized by county court order in 1888, comprising certain described territory (which is unnecessary to here set ont). Prior to the organization
120 QOMMON SCHOOL DIST. 42 v. STUTTGART [187 SPUCIAL SCHOOL DIST. 22. of appellant district appellee district was organized under the orders of the county court of Arkansas County which comprised certain territory (it being deemed unnecessary to set out the descriptions). • . In this opinion the school districts will be referred to as District 42 and District 22 for brevity. The two districts which were organized as aforesaid had a common boundary. According to the testimony introdUced in this case, there was a constant and continued quarrel between the two districts as to the correct lines separating said districts since their organization in 1888, appellant district claiming certain controverted territory and appellee district also making claim thereto. To settle the controversy which had been carried on from time to time between the . two districts, appella.nt district and appellee district, early in the year of 1930, appointed a committee from their respective boards . for the purpose of terminating the controversy. The committees met, and, after consulting some time, reached An agreement between themselves that the true boundary line, of. the districts would be as follows : Beginning at the point of intersection of -Nineteenth Street in the city of Stuttgart, with the section line running north and south, between sections 33 and 34; toWnship 2 south, range. 5 we'st, running thence west on Nineteenth Street to point of intersection 'with Buerkle Street, thence north on Buerkle Street to Seventeenth Street and the half section line across sections 32- 2=5 to point of intersection with the section line running north an • d se , uth between sections 31 and 32-2-5. It was further agreed between the committees of said districts that, as a consideration for said compromise, all children in appellant district cempleting the eighth grade should be entitled to enter the Stuttgart High School, or appellee district school, free of tuition Immediately after this agreement was reached between the boards of directors of appellant district and appellee dis-triet, the matter was submitted to the county board of -educatien of . Arkansas County for its 'confirmation and approval.. On consideration, said county board . of education -made and entered The following order, in • part, on March 8, 1930, to-wit:
ARK.] COMMON;SCHOOL DIST. 42 V. STUTTGART 121 SPECIAL SCHOOL DIST; 22. "Wherefore, -it-is by the board considered, ordered and : adjudged that the above-described line be, and it is hereby declared and established as- the permanent , boundary line between Stuttgart SPecial: School . District No. 22 and Common School Distriat No. 42.. "And it is further understood-that, in agreeing upon said boundary line, the • school board of Stuttgart Special School District . No. 22 agreed. that all high school pupils from School District No. 42 , should in the future, after completing the 8th grade, • be entitled to enter the Stutti gart High School: free. of :tuition, arid it is by the board so • ordered." . After the entry• of the ordor of the- b6ard of education as. aforesriid, establishing the boundary. line between the appellant district and the appellee district, the high school children.in appellant district were permitted-and did attend the high school in appellee district .up • to :and until -April, .1932,. without paying tuition, at•which.,time appellee district notified the . children'in.appellant district that they could no longer attend appellee's high school without paying. $7.50 per month per child as tuition. Thereupon,. this suit was brought on i the 23d day of April, 1932, by appellant .District No. 42 and certain ,of its school children : against appellee District No. 22 to require said appellee district ta admit said _high .school children of appellant district into the high- school of ap, pellee district without paying- tuition and in conformity -with the order of the county board of education. On trial upon the testimony introduced-, the chancery court of Arkansas Connty dismissed appellant's cora--plaint for want . of equity . -and * dissolved the ternPorary injunction theretofore issued, and from this judgment and decree .this appeal . has been prosecuted. . A. G. Meehan and John-W. Manerief,-foi- -appellant. Ingram & Moher,±for appellee. . JOHNSON, C. J., (after stating the facts). It is apparent that this controversy hinge§ upon the validity or invalidity of the order of the county board of education made and entered March 8, 1930: This order of the . county board of education does-not show -upon its-face that -any. petition by property bWners 'was ever filed • with said
122 - • COMMON -SCHOOL . DIST. -42- V.-STUTTGART - - 1187 SPECIAL SCHOOL DIST. 22. county board of education prior to its enactment. It does not show upon its face that any notice was given of , any contemplated changes in the boundary lines of said district prior to the entry- of said order. For these reasons the trial court held the order of the county board of edu: cation, made and entered as aforesaid, void. It is the contention of the appellant district that all defects or omissions of said county board of education in making and entering said order aforesaid were cured by § 54 of act 169 of 1931, which section reads as follows : "Section 54. All districts formed by action of the county board of education of any county prior to the passage of this act are_ heteby made districts under the provisions of this act, and any errors, omissions, or defects in the procedure of creating such district are hereby cured, and the action creating any such district is hereby ratified. Provided this section shall not be construed as validating any action of a county board of education concerning which a. valid suit in a court of competent jurisdiction is now- pending." The pertinent language in § . 54 is, "and any errors, omissions, or defects in the procedure of creating such district are hereby cured." Notwithstanding the county board of education on March 8, 1930, when it made and entered this order establishing the boundaries between the two districts, had no authority in law to effect the same except after a. petition and notice had been filed, these defects and irregularities may be validated and cured by a subsequent act of the. Legislature. • This court has held : "Where the irregularity consists in doing .some act, or in the mode or manner of doing it which the Legislature might have masle immaterial by a prior law, it may do so by a subsequent one." Green v. - Abraham, 43 Ark. 420. This court has also held : "When a. deed or other conveyance is invalid by reason of the failure of the patties thereto to conform to some formality imposed by the Statute, the Legislature may by a subsequent act cure the defect and give the deed such effect as the parties intended it should have at the time of its execution." Pelt v. Payne, 90 Ark. 600, 30 S. W. 426.
ARK.] COMMON SCHOOL DIST. 42 V. STUTTGART 123
SPECIAL SCHOOL DIST. 22. We think that §'54 of act 169 of 1931 is applicable to. the order of the county board of education made and entered on March. 8, 1930, and that all omissions and irregularities therein, whether by lack of petition or , notice, are cured and validated by said,act, and that said order of the , county board of education of -Arkansas County has established the true boundary line between said two districts: It is next insisted on behalf of the aPpellee that, even though this court should hold that the order of the county board of education establishing the boundary between the two districts was a valid and binding contract between tbe districts and properly promulgated by the county. board of education, yet that part of the order which permits the high school children in District 42 to attend the high school in District 22 is not enforceable. We cannot agree to this contention. It would certainly be inequitable and unjust to permit the appellee district to receive, benefits under the order of the county beard of education yet refuse to comply with the conditions on which it was granted. We think that this part of the order of the • county board of education should be treated as a transfer of the children of appellant 's district to District _22 for schook.purposes. When this is done, we' only treat the order of the . county board of education as it haS ,been treated by the parties themselves for the past two years. District No. '42 and bistrict No. 22 have treated this as a valid order since its promulgation in March, .1930, up to and' until this suit was filed, and we know of no valid reason why they should not continue to do so. It is next insisted on behalf • of appellee that the order of the county board of education, in effect, is to say to appellee : "Regardless of changed conditions, we - for-• merly had a small area which we -traded to you—you cannot—the Legislature cannot in the future exercise any .authority , over this situation—you . cannot' make :any change of boundary or do anything that would disturb our invalid' agreement." Counsel for appellee are mistaken in this view. By a Jong line of decisions of this court, the Legislature is vested with full authority to • create school districts, and
change their bound saries at will; the Legislature may delegate this authority to any inferior department of the government such as the county court, the county board of education or any other agency it may desire. This order of the county board of education does not in any wise infringe upon the authority of the Legislature or any subordinate agency to change the boundaries between these two districts or to create new districts out of this or any other territory. This . court is of the opinion that the order of the county board of education of Arkansas County made on March 8, 1930, establishing thQ boundaries between appellant, District No. 42, and appellee, District No. 22, is now a valid and binding order of said board by reason of act 169 of 1931, and that the order, in so far as it permits children in District No. 42 In all grades above the eighth grade to attend appellee's schools in District No. 22, should be treated as a valid transfer of said children of District No. 42 for school purposes, and that this should be done until a change may be effected in said districts by the Legislature or some other subordinate agency authorized to effect a change. For the reasons aforesaid, the decree of the Arkansas County Chancery Court is reversed, and remanded with directions to the . chancellor to .enter a decree in conformity with this opinion, and that a . mandatory injunction be issued 'to Carry out, these directions. TIRBY, J.; dissents.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.