BOYD et al.
Appeal from Superior Court, Pima County; Frank E. Thomas, Judge.
Certiorari proceeding by William Graham Bell against J. Homer Boyd and others to set aside proceedings enlarging the boundaries of a high school district. From a judgment for the plaintiff, defendants appeal.
Reversed with directions.
Odin B. Dodd, Co. Atty., of Tucson, for appellants.
Fred W. Fickett, William S. Dunipace, and Robert S. Tullar, all of Tucson, for appellee.
Phelps, Justice. La Prade, C. J., and Udall, Stanford, and De Concini, JJ., concur.
[68 Ariz. 168] This is an appeal from a judgment of the superior court of Pima County annulling and setting aside the proceedings had by the county school superintendent and the board of supervisors of that county, hereinafter called the superintendent and the supervisors, enlarging the boundaries of High School District No. 4 of said Pima County.
In view of the conclusions reached by this court in the instant case it is considered appropriate to give a brief history of the action taken by the above named officials and their predecessors relating to an enlargement of said high school district prior to the proceedings herein involved.
Prior to June 17, 1941, High School District No. 4 and Common School District No. 10 were coterminus. On that date, pursuant [68 Ariz. 169] to the provisions of section 54-404, A.C.A.1939, the superintendent and the supervisors approved a petition signed by more than ten electors residing in said districts for the enlargement of said Common School District No. 10 and High School District No. 4 by adding thereto a portion of Common School District No. 16 and approximately 57,500 acres of land which was theretofore unorganized territory but contiguous to District No. 16. The latter district and a number of qualified electors who were real property owners residing therein applied for and secured from the superior court of Pima County a writ of certiorari directed to the superintendent and the supervisors requiring that all records in said proceedings be presented to the court for review. A hearing was had after which the trial court set aside the proceedings for enlargement as being null and void.
From that judgment and order an appeal was taken to this court in the case of Ross v. School District No. 16, 60 Ariz. 9, 130 P.2d 914, hereinafter referred to as the Ross case, and we held that the questioned proceedings were valid as it related to the enlargement of Common School District No. 10 but were invalid as it related to High School District No. 4. The effect of said decision was to enlarge Common School District No. 10 to include a portion of Common School District No. 16 and the approximately 57,500 acres of unorganized territory adjacent thereto and to deny to High School District No. 4 an enlargement of its boundaries so that, if changed, it would be coterminus with Common School District No. 10 as enlarged. No
further attempts were ever made by anyone under any of the provisions of the statute to enlarge High School District No. 4 until the present proceedings were instituted.
Other phases of the case have been befor this court in other causes of action including the case of Martin v. Whiting, 65 Ariz. 391, 181 P.2d 819.
The Whiting case, supra, brought in June, 1946, and decided by us in June 1947, was a taxpayer's action in mandamus to compel the supervisors to issue a warrant to him covering a judgment for taxes paid by him, and others similarly situated, under protest and to compel the superintendent and the supervisors to fix the boundaries of High School District No. 4 as it existed prior to June 17, 1941, in compliance with the decision of this court in the Ross case, supra. The plaintiff prevailed in that action and obtained all the relief sought.
From that judgment and order an appeal was taken to this court. On said appeal, appellant sought, in effect, to collaterally attack the judgment in the Ross case. We held that this could not be done and affirmed the judgment of the lower court.
On June 27, 1947, pursuant to section 54-404, A.C.A.1939, a petition was filed with the superintendent to change the boundaries of High School District No. 4 of that [68 Ariz. 170] County so as to include therein that portion of Common School District No. 16 and the said 57,500 acres of land theretofore brought within the boundaries of Common School District No. 10 and to make the boundary of said high school district coterminus with said District No. 10 of said Pima County, Arizona, as it now exists. The petition was approved by the board of trustees of School District No. 10 and the board of education of High School District No. 4 (being the same persons) who waived notice of hearing thereon. On the same day, said petition was approved by the superintendent and was presented to the supervisors who on said date at a special meeting, approved the same and ordered the boundaries of said high school district changed as prayed for in the petition.
On July 1, 1947, the superintendent, pursuant to section 54-403, A.C.A.1939, filed a transcript of the boundaries of each school district within Pima County with the supervisors including a transcript of the boundaries of High School District No. 4 to conform to the petition relating thereto approved by the superintendent and the supervisors thus making High School District No. 4 coterminus with the present boundaries of Common School District No. 10.
The appellees here whose land was brought into the high school district by the change of said boundaries applied for and were granted a writ of certiorari by the superior court of Pima County for a review of the above proceedings. Upon hearing, the trial court held the proceedings void and again restored the high school district to its territorial and geographical status prior to June 17, 1941.
The questions here presented are:
1. Do the provisions of sections 54-403 and 54-404, A.C.A.1939, apply in the enlargement of the boundaries of a high school district?
2. If so, were the provisions thereof complied with in the instant case?
The appellant claims these questions should be answered affirmatively. The appellee, however, claims:
1. That the above sections have no application here but that appellant should have proceeded under the provisions of section 54-408, A.C.A.1939.
2. That even if section 54-404 is applicable in the enlargement of high school districts, appellant did not comply with the terms thereof in that: (a) No hearing of any kind was held by either the said superintendent or the supervisors and that no notice of such hearing was given to any person either by the superintendent or the supervisors. (b) That the supervisors approved said petition at a special meeting of said board on June 27, 1947, and that such meeting was held without first giving five days written notice thereof as provided by section 17-305, A.C.A.1939. (c) That said notice may not be waived.
[68 Ariz. 171] The primary issue here was squarely presented to us in the Ross case, supra, except that in that case the appellees there ...