Friesen v. Clark

220 N.W.2d 12, 192 Neb. 227, 1974 Neb. LEXIS 680
CourtNebraska Supreme Court
DecidedJuly 5, 1974
Docket39326
StatusPublished
Cited by11 cases

This text of 220 N.W.2d 12 (Friesen v. Clark) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Friesen v. Clark, 220 N.W.2d 12, 192 Neb. 227, 1974 Neb. LEXIS 680 (Neb. 1974).

Opinions

Brodkey, J.

A freeholder’s petition was filed by appellant, Walter A. Friesen, pursuant to section 79-403 (1), R. R. S. 1943, requesting that an 80 acre tract of land be set off from McCool School District No. 83, York County, and attached to Henderson School District No. 95, York County, Nebraska. Objections to the petition were filed by appellee, Regina D. Clark. Thereafter a board consisting of the county superintendent, county clerk, and the county treasurer of York County, appointed pursuant to the requirements of section 79-403 (1), R. R. S. 1943, held a hearing and authorized a transfer of the tract in question from the McCool School District to the Henderson School District. Appeal was then taken to the District Court for York County, which court, after hearing, entered a judgment denying the change of boundaries sought by the appellant. Appellant then appealed to this court. We reverse the judgment of the District [229]*229Court, and remand the cause with instructions to grant the requested transfer.

We have previously held that the action of the board under section 79-403, R. R. S'. 1943, is an exercise of a quasi-judicial power, equitable in character, and upon appeal therefrom to the District Court the cause is triable de novo as though it had been originally instituted in such court, and upon appeal from the District Court to this court it is triable de novo as in any other equitable action. Roy v. Bladen School Dist. No. R-31, 165 Neb. 170, 84 N. W. 2d 119 (1957); McDonald v. Rentfrow, 176 Neb. 796, 127 N. W. 2d 480 (1964).

The requirements for transferring and attaching the property in question as requested in the freeholder’s petition are set out in section 79-403, R. R. S. 1943. We shall not recite these requirements in detail at this point. Suffice it to say the parties concede that all the statutory prerequisites for maintaining this action have been satisfied and that the only issue involved in this appeal is whether or not there was sufficient showing under the foregoing statute that the transfer would be in the best educative interests of the petitioner. The part of the foregoing statute directly involved in this endeavor to change the school district boundaries provides as follows: “The board may, after a public hearing on the petition, thereupon change the boundaries of the districts so as to set off the land described in the petition and attach it to such adjoining district as is called for in the petition whenever they deem it just and proper and for the best interest of the petitioner or petitioners so to do.” (Emphasis supplied.) This court has on prior occasions defined the phrase “the best interest of the petitioner or petitioners,” as used in the foregoing statute, to mean the best educative interest of petitioner or petitioners and not the best noneducative interest of petitioner or petitioners. Roy v. Bladen School Dist. No. R-31, supra; McDonald v. Rentfrow, supra. The cases have made it clear that the [230]*230board in making such determinations should predicate its decision upon the educative interest of the petitioner or petitioners and not on their mere personal preference or convenience based upon noneducational reasons. This court has indicated certain matters which we deemed not to be in the best educative interest of the petitioners. For example in Roy v. Bladen School Dist. No. R-31, supra, the court stated: “* * * we conclude that the Legislature did not intend, in this modern highway and transportation age, to enact a statute concerned with schools, distances, and education of pupils for the sole purpose of making convenient allocations of land to school districts based upon individual preferences or secular business reasons of owners having nothing to do with educational efficiency.” See, also, McDonald v. Rentfrow, supra.

It is true that in the trial of this matter in the District Court, evidence was adduced and received with reference to certain matters which were clearly not connected with the educative interests of the petitioner. This evidence will not be considered in this appeal. We must, however, determine the positive aspects of the problem, that is to say, what facts or elements may and should be considered in making the final determination in that regard. Of course, whether or not the respective schools are accredited is a relevant factor. Pribil v. French, 179 Neb. 602, 139 N. W. 2d 356 (1966); § 79-1108, R. R. S. 1943. However, it appears from the record that both the Henderson School District and the McCool School District are fully accredited, and thus this element is not determinative in this case.

In Roy v. Bladen School Dist. No. R-31, supra, the court indicated that “educational efficiency” is a matter to be considered; and the court made special note of the fact that none of the witnesses had “criticized the leadership, management, curricula, or efficiency of the Bladen Schools.” In Johnson v. School Dist. of Wakefield, 181 Neb. 372, 148 N. W. 2d 592 (1967), the court specifically [231]*231held that: “* * * the size of a school or minor differences in extracurricular activities are not important considerations” and the court further emphasized that the evidence demonstrated “that both schools are good schools of equal class, with equal accreditation, and with practically the same curricula, and that no valid complaint can be made of the educational efficiency of either school.” It appears therefore that so far as we are given any help or guidance by the cases referred to above, a freeholder’s petition under section 79-403, R. R. S. .1943, must be supported by an adequate showing that the purposed transfer of land is justified in relation to the controlling educational factors regarding the convenience, necessity, or welfare of the pupil or pupils involved. Such a showing must include a demonstration of significant differences in the class, accreditation, leadership, management, curricula, and/or efficiency of the schools involved. Other factors such as the size of the schools involved or minor differences in extracurricular activities offered, although they may properly be considered in ruling on such a petition, are not alone enough to justify a transfer of land under that statute.

A review of the record in this case reveals that although both school districts offer a reasonably good program of education, there are certain considerations which lead us to the conclusion that the appellant should prevail on his petition and that the transfer of land sought by him should be granted.

In support of his petition appellant points out the fact that the Henderson School District offers a 4-year course of education in vocational agriculture, whereas the McCool School District offers no such course, and he argues that such a difference in the curricula of the two schools relates significantly to the educative interests of the child of school age residing on the land in question. Appellee argues on the other hand that it is speculative to suppose that the student involved, who is presently too young to enroll in the vocational agri[232]*232culture course, will in the future have any interest in that course; and she further suggests that by the time the student involved is old enough to enroll in vocational agriculture, the McCool School District may possibly offer that course. We are not convinced by the arguments of the appellee. The fact that the student involved is not presently ready to take the course in vocational agriculture is not significant.

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Friesen v. Clark
220 N.W.2d 12 (Nebraska Supreme Court, 1974)

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Bluebook (online)
220 N.W.2d 12, 192 Neb. 227, 1974 Neb. LEXIS 680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friesen-v-clark-neb-1974.