
    STATE ex rel WOODCOCK, Respondent, v. CHITTY et al, Appellants.
    (166 N. W. 633.)
    (File No. 4182.
    Opinion filed March 8, 1918.)
    1. Schools — School Districts, Formation — Congressional Township District — Which Statute Applies — Repeal.
    Where, in a school district embracing two congressional townships, two petitions to county commissioners, one from each township, to create a separate school district in each township, were filed with county auditor; no action being taken by the commissioners, hut upon hearing before a joint meeting of the hoard and the county superintendent, an order was made declaring each congressional township a separate school district, hold., that said proceedings were intended 'to be had under Laws 1909, Ch. 242, providing that upon petition of two-thirds of the electors of a congressional township forming part of a school district, to create a separate school district comprised of such township, filed with county auditor, county commissioners together with county superintendent shall declara such township a separata school, and not under Laws 1907, Oh. 135, Sec. 69, as amended by Laws 1915, Ch. 171; since the repealing clause in the 19 07 act, repealing all acts inconsistent with the provisions thereof, did not in effect repeal the 1909 law; the title to the latter act embracing said authority to create school districts out of congressional townships “where two-thirds of electors of said congressional township petition therefor;” and said act of 19 09 is not one amending any then existing section of the Educational Code, while it is limited to certain specific conditions, and was independent of the 19 07 law; nor was said act of 1909 repealed by Laws 1915, Ch. 171, containing a clause repealing acts inconsistent therewith, and whose title is confined to the subject of amendment of Sec. :619 of said 1907 law, which latter section relatee to division of school districts in general, and upon a different plan from thai; provided in the 1909 act; while said proceedings were not within Laws 1901, Ch. 113, providing among other things that townships not organized into civil townships should remain school district corporations, and that petitions for division of school districts should be signed by at least one-third of the electors therein; such 1901 law having been reenacted as Ch. 22, Pol. Code 1903.
    2. Certiorari — Review of IiTegularities, Jurisdiction.
    A writ of certiorari is not the proper remedy for review of errors or irregularities in attempted exercise of jurisdiction or authority conferred upon public officers or hoards.
    3. Public Officers — Joint Official Board — County Commissioners, County Superintendent — Joint, or Separate, Vote? — Regality.
    The members of board of county commissioners, and county superintendent, constitute a joint board, under Raws 1909, Ch. 242, providing that in a proceeding to create separate school districts comprising more than one congressional township, the board of county commissioners, together with such superintendent, may declare such separation, and a majority thereof may act; construing Civ. Code, Sec. 2474, providing that words giving joint authority to three or more public officers, etc., are construed as giving such authority to a majority of them, unless otherwise expressed in the act.
    Appeal from Circuit Court, Custer County. Hon. Devi McGee, Judge.
    Petition by the State of South Dakota on the relation of P>ert Woodcock, against John Ohitty, A. Montgomery and! D. Carrigan, as ¡the Board of County Commissioners' of Custer County, South Dakota, Norma Connor .as County Superintendent of Schools of said county, and W. E. Eink as County Auditor of said county, for a writ of certiorari directed to' said board, said county supermtendtenit, and said oou'nty auditor, ■commanding them to certify certain proceedings, for creation of separate school districts, to the Circuit Count of Custer County, etc.; from a judgment of winch court, following an order finding that said commissioners and superintendent had exceeded their authority, andi that s’aiid1 proceedings were without legal effect, defendants appeal.
    Order and judgment reversed, with directions to 'dismiss the writ.
    ' Percy Plelm, State’s Attorney, and Martin & Mason, for Appellants.
    
      Postman & Postman, for Respondent
    • (2) To point two of the opinion, Appellants cited: Civil Ood'e, Secs. 754, 760; State Eix. Rel. Express Co. v. State Board 3 S. D. 33S.
    (3) To point three of the opinion, Appellants cited: Jacobs v. Board’, 100 Gal. 121-123; 34 Bac. 630-633:
   SMITH, J.

For years prior :to May 31, 1916, Eden Valley school district N'o. 8 in Custer oounty embraced- two oomgressicoal • townships. On April 15, 1916, two petitions were filed with the county auditor. One petition was. signed by miolre than twortbirdsi of the qualified electors of one of the congressional townships, petitioning the board of -county commissioners to create a separate school district comprising their congressional township. The other was a similar petition asking the creation of a separate district comprising the other congressional township. Both petitions were certified1 by the -county superintendent of schools under -date of April 4, 1916, to contain a majority of voters of the respective congressional townships. O'n May 2, 1916, .a number of persons who bad signed the last-named petition filed with the auditor a written request that their names be withdrawn from the petition which, if granted, wo-uld have left the petition with leas than a majority of tibe qualified electors of that congressional township. No formal action was taken by the county -commis-slioniers upon this request. The petitions oarne' on for hearing before a joint meeting of the board c¡f -county commissioners and county superintendent on May 3,1, i'916. On that date an order was- made -creating and declaring each of said congressional- town ships1 'a separate school district. Each of the three -county commissioners voted in favor of1 this a-cfion; the -county superintendent voted against it.

In June, 1916, ibhe respondents herein obtained from the circuit court of Custer county a writ of certiorari directed to -the board of county -commissioners, the -county superintendent, and the county auditor, commanding them -to certify the foregoing proceedings to tih-e -circuit court of Cuslter county, and commanding them to desist from further proceedings in the matter of creating separate school districts. On March 1, 1917, that court entered its decision finding that the commissioners and superintendent of schools had exceeded their authority, and that the proceedings creating separate congressional dlistriot schools be deoreed to be without legal force or -effect. Judgment was entered accordingly, and defendant perfected this appeal. It -i-s appellants’ contention that the proceedings complained of were authorized by .and in compliance with chapter 242, Laws of 1909, which provides that:

“Wherever two-thirds of the qualified electors of any congressional township in this state which is nlow a part of some school district comprising more than one such congressional township shall petition the 'board of county commissioners of their icounty to create a separate school district comprised of tihleir congressional township and have filed such petition with the counity auditor, it shall be the duty of said1 board of county commissioners, together with the superintendent of schools of said county, at the first regular or special meeting of said board of county ‘commissioners, to declare said congressional township a separate school district, and -the county superintendent shall appoint the necessary officers * * * who shall hold office until the election. * * *”

It appears tor be respondents’ contention that these proceedings were had pursuant to section 69, art. 2, of chapter 135, Laws of 1907, as amended by chapter 171, Laws of 1915. This contention is based upon the supposed effect of the repealing clause contained in the latter act, which declares that:

“All acts and parts of acts inconsistent with the provisions of this act are hereby repealed.”

The title of the act is as follows:

“An act entitled an act to amend sec. 69 of chap. 135 of the Session Laws of 1907, relating to the ¡division of school districts.”

It is entirely clear from the recital's contained 'in both petitions filed with the county auditor, and from the action of the joint board in creating new districts embracing congressiloimal townships, that the petitions were filed, ¡and proceedings were intended to be bad, under chapter 242, Laws of 1909, and nlot under the provisions of section 69, c. 135, Laws of 1907, as amended by chapter 171, Laws of 1915.

The first question to be determined is whether .the act of 1909 is inconsistent with, and therefore repealed by, chapter 171, Laws of 1915. A very brief review of past school legislation will throw some l-ighit on this- question.

In 1901 (chapter 113, Laws 1901) the Legislature enacted a codification of the school laws of the 'State, and repealed all acts and parts of acts relating to education passed prior to January 1, 1901, except special acts relating to schools in cities, 'towhs, and villages, and independent school districts created by special acts. This lact provided that existing districts should remain school corporations, and that existing boundary lines were not changed, but that each township not organized into a civil township, should be and -remain a school district corporation until -changed ,as pnohdd'edf in it he act, anld that as- to counties thereafter ¡organized, upon the formation of -school districts therein, the boundary lines of congressional townships should-be made -the boundaries of school districts-. Them followed provisions for dividing school districts, requiring a petition signed by at least -o-nle-thlird of the qualified electors of -the school district iand -a maj oirity. vote of the electors. Upon -such vote it w:as -made the duty of the board of commissioners and county superintendent td divide the district as petitioneed for. Section 6 of -chapiter 3 of the a-clt then provided that:

“After the boundary limes' of the islevaral -school districts in the county are established, such boundaries at any regular meeting may be -changed, by the board of county commissioners and the county superintendent of school's upon a petition for such change signed by ten ilegal vdte'rs residing in the 'district to -be affected by the chlanige- * * * If in the judgment of the -commissioners -and the superintendent -s'u-oh change is for the best interests of the patinóte of the schools.”

The Educational Code of 1901, with certain changes not material- here, was re-enacted as chapter 22 of the Political Code of 1903. In 1907 the Legislature (chapter 135, Laws 1907) enacted a recOdification -of the entire school laws of the state, repealing all former laws on the subject. In 1909 (chapter 242, Laws 1909) the Legislature passed an act entitled':

“An- act ito empower county -commissioners and county superintendents to create school districts out of congressional townships where tw-o-thirds of electors of said congressional 'townships petition therefor.”

The provisions- of this -act are hereinbefore quoted. It will •be observad! that this -act is mot, and does not purport to be, an amendment of -a'ny then existing section -of -the Educational Oode. It is in line, however, with preceding legislation requiring tine boundary lines- of school dlsitri-ots in newly organized counties iand newly organized districts to conform -roi the boundary lines of congressional townships whenever practicable. T'he act conf'elrs upon t'he qualified electors of any ■congressional township already a part of some school district comprising more than one •congressional township (the right, upon .petition signed by two-thirds of the qualified voters of s'uoh congressional' district, to- require itihe county superintendent and the board of county Commissioners to declare such congressional township a separate -school .district, aind the county -superintendent to appoint the necessary officers thereof. The act 'also provides that no such district shall be formed where the -remaining portion of the former district shall -be thereby left without -reasonable school privileges, or in such shape as to render it impracticable for 'district purposes. Nlo question is presented upon this appeal arising under this pnclviso .of the aot . W'e -are of the view that this enactment, limited as it is to certain specific conditions, wias independent of, and did not repeal -or amend, section 69 of chapter 135, Laws of 1907, nor is it modified or repealed by chapter 171, Laws of 1915.

We .are therefore of the view that the joint board' acted within iits authority under the statute of 1909 -in creating a separate school district with boundaries corresponding with the congressional township upon !bhe petition signed by two-thirds or more of the electors of such congressional township.

A writ of certiorari is not the proper remedy for a mere review of errors of -irregularities io the attempted exercise of jurisdiction -or ‘authority conferred upon -public officers -or boards. The joint board having acted within, the -authority conferred by the statute, it Is unnecessary to 00‘msi'd'er whether an appeal would lie fsrfom the '-action of the joint board. Section 760, Civil Code; State ex rel. v. Olson, 30 S. D. 573, at page 585, 139 N. W. 336; State ev rel, Clark v. Stakke, 22 S. D. 228, 117 N. W. 129.

Another question -raised by .appellant perhaps requires consideration. It is respondents’ contention that 'the board of county commissioners as a body, andl the county superintendent Constitute a joint board, the validity of whose action requires the vote as a unit of the 'board of county commissioners or a major! ty thereof, together with the vote of County superintendent. We think, 'however, that the correct rule is stated ini McQuillin, Munic. Corp. vol. 2, § 600, where it is saidi:

“In arder Ito constitute a legal meeting for ithe (transaction of 'business of a badly composed! of twld or more definite bodies, it is necessary th'alt a majority of each of the ’separate bodies should be present. When 'the meeting has once been duly organized thie identity of the component bodies forming it, in legal contemplation, disappears, and the vote of the majority of those constituting 'the j'oli'nt body wiho are present 'Controls, even though one of the body should leave befare the vote is .taken.”

The members of the board of oou-nlty .commissioners and the county superintendent constitute a joint board, and a majority thereof may act. Civil Code, § 2474, provides:

“Words giving ¡a joint authority to three or mlcire public officers loir other persioms are 'construed as giving’ such authority •to a majority of' them, untess it is otherwise expressed in the act giving thie authority.”

In thie statute which confers authority icin the board of aaumty commisslioners anid Ithe county sluperintendeimt to adt as a joint body in the flormaltion of school districts it is not “otherwise expressed.”

The order and judgment of the trial oau-nt are reversed, with directions to dismiss the writ.  