#### State, ex rel. John Diemer, appellant, v. Theo. A. Frye et al., appellees.

Filed November 17, 1916.

No. 19496.

Schools and School Districts: Organization of Districts: Authority of County Superintendent. The proviso to the third subdivision of sec. 6703, Rev. St. 1913, is not in conflict with the preceding portion of the subdivision, and confers authority upon the county superintendent of schools in a county in which territory lies which was not then a part of any school district to organize such territory into new districts or to attach the same to adjoining districts without petition or notice.

Appeal from the district court for Grant county: James R. Hanna, Judge.

*Affirmed.*

*Daniel F.*Osgood, for appellant.

*A. D.*Fetternian, *contra.*

Letton, J.

The purpose of this action is to detach from school district No. 3 of Grant county certain territory annexed thereto by the county superintendent of schools in January, 1910. The relator insists that the addition of this territory to the district was made without jurisdiction or authority on the part of the county superintendent, for the reason that no petition was presented to change the boundaries of the district, or to attach any portion of the territory thereto; that no notice of any hind was ever given containing a statement of what changes were proposed in the district boundaries, and of the time and place where the petition would be presented to the county superintendent; that the petitioner is a heavy taxpayer in the district, and that the district board are threatening to spend moneys of the district within the territory so attempted to be attached; that a petition and notice were necessary to authorize the county superintendent to attach unorganized territory to the district. It is admitted *365that no petition praying for the annexation of the. disputed territory to the district was presented, and that no notice was given.

The relator relies upon the case of *State v. Compton,*28 Neb. 485, which holds that a county superintendent of schools has no jurisdiction to detach the property of a part of a school district and attach it to an adjoining district without a petition in writing, and without notice being given of the time and place where a hearing should be had in the matter. At the time the facts in that case arose, section 4, subd. 1, ch. 79, Comp. St. 1887, was in force. The third subdivision of this section provided: “The county superintendent shall not refuse to change the boundary line of any district, or to organize a new district when he shall be asked to do so by a petition from each district affected, signed by two-thirds of all the legal voters in such district.” It also required that notice be given of the contents of the petition and when it would be presented to the county superintendent. Afterwards a provision was added that he should not refuse to annex unorganized territory to an existing district on petition signed by two-thirds of the district and of the territory proposed to be attached, and notice of this was required. At the legislative session of 1909 this section was amended by adding the following provision: “Provided that on January 2, 1910, any territory which is not then a part of any school district shall, by the county superintendent of the county in which such territory lies, either be organized into new district's, or attached to one or more adjoining districts.” Laws 1909, ch. 117, subd. 3. The relator contends that this proviso does not operate to affect the third subdivision requiring petition and notice, citing the decision in *School District v. Coleman,*39 Neb. 391, to the effect that a proviso should be considered as referring to that which immediately precedes it only. Conceding this, the proviso in the amendment of 1909 immediately follows that part of the third subdivision of the section which provides that the county superintendent shall not refuse “to *366annex to an existing district any territory not organized into districts when asked to do so by petitions signed by two-thirds of the legal voters of the'existing district and the territory proposed to be attached,” and providing for a notice. Laws 1909, ch. 117. The proviso affected that portion of the law immediately preceding it.

There is no inconsistency between it and the remainder of the section. The proviso did not become effective until January *2,*1910. The statute went into effect July, 1909. The legislative purpose evidently was to allow about six months during which the residents of unorganized territory might present petitions to the county superintendent either asking the formation of a new district or indicating the district to which they desired to be attached. If at the end of that time they had indicated no preference, the county superintendent was directed to proceed upon his own initiative and either organize the territory into new districts or attach it to one or more of the adjoining dis-. tricts. This is what was done in Grant county. The statement of facts shows that five similar annexations of unorganized territory to other districts were made and one new district was created upon the same day, thereby placing within organized districts all the previously unorganized territory within the county. The county superintendent being vested with authority to make this annexation, the plaintiff has no cause of action.

The judgment of the district court is

Affirmed-