Opinion
No. 29703.
October 7, 1941. Rehearing Denied October 28, 1941. Application for Leave to File Second Petition for Rehearing Denied December 9, 1941.
(Syllabus.)
1. SCHOOLS AND SCHOOL DISTRICTS — Authority of county superintendent in designation of separate school in district.
By virtue of the provisions of section 7035, O. S. 1931, 70 Okla. St. Ann. § 453, the county superintendent of public instruction of each county has the authority to designate which school or schools in each district shall be the separate school and which class of children, either white or colored, shall have the privilege of attending such separate school or schools in said district.
2. SAME — Where colored persons illegally assume to act as school directors there is a vacancy to be filled by county superintendent.
Where the district school is designated by the superintendent of public instruction for children of the white race, the board of school directors of such school district cannot legally be of the colored race, and where persons of the colored race assume to be such directors, such assumption is a nullity and there is a vacancy in such board of directors as a matter of law, and the said county superintendent has the authority to fill such vacancies by the appointment of persons of the white race having the qualifications required by law. Jelsma, Co. Treas., et al. v. Butler, 80 Okla. 46, 194 P. 436.
Appeal from District Court, Pottawatomie County; Kenneth Jarrett, Judge.
C.E. Ervin and E.L. Chestnut appealed to the District Court of Pottawatomie County from an order made by Arguyle Seikel, Superintendent of Public Instruction, removing them from office as members of the school board after creation of a separate school in a district where one theretofore had not existed, and from the judgment of said court affirming such action they prosecute this appeal. Affirmed.
Kenneth B. Kienzle, of Shawnee, for plaintiffs in error.
Wyatt, Wyatt Green, of Shawnee, for defendant in error.
The defendant in error, superintendent of public instruction of Pottawatomie county, established a school for children of the white race in school district No. 6 in said county where the sole previously existing school was one for the children of the colored race, and designated the school so created for the children of the white race as the district school and the school for the children of the colored race as the separate school and declared the offices which the plaintiffs in error had theretofore held as members of the board of the prior existing district school to be vacant and appointed members of the white race to fill the vacancies which had resulted from the creation of said district and separate schools. The plaintiffs in error appealed to the district court of said county, and from a judgment of said court sustaining the action of the defendant in error as superintendent of public instruction have prosecuted this appeal.
The plaintiffs in error assign twelve specifications of error and argue the same generally under the theory that judgment is contrary to the evidence and contrary to law. The sole citation of authority is to section 7035, O. S. 1931, 70 Okla. St. Ann. § 453, which is authority for the action taken by the defendant and which wholly fails to sustain any of the contentions advanced by the plaintiffs in error. As said in Jelsma, Co. Treas., v. Butler, 80 Okla. 46, 194 P. 436:
"Where the district school is designated by the superintendent of public instruction for children of the white race, the board of school directors of such school district cannot legally be of the colored race, and where persons of the colored race assume to be such directors, such assumption is a nullity and there is a vacancy in such board of directors as a matter of law, and the said county superintendent has the authority to fill such vacancies by the appointment of persons of the white race having the qualifications required by law."
See, also, Jumper v. Lyles, 77 Okla. 57, 185 P. 1084 and State ex rel. Gumm. v. Albritton, 98 Okla. 158, 224 P. 511.
An examination of the record fails to disclose any apparent fundamental error, and this being the case, the judgment brought will not be disturbed.
Judgment affirmed.
CORN, V. C. J., and OSBORN, BAYLESS, GIBSON, HURST, DAVISON, and ARNOLD, JJ., concur. WELCH, C. J., and RILEY, J., absent.