The opinion
BLACKBIRD, Justice
(dissenting) :
I dissent to the Majority Opinion for the reason that under the facts and record I think the opinion should be written as herein stated.
Previous to this litigation, one school district, hereinafter referred to as “D. S3”, had been annexed to a second school district, hereinafter referred to as “D. 12”, forming a new school district I will refer to as “I. 53”, when the County Superintendent made an order annexing D. 12 to a third district, hereinafter referred to as “I. 128”, pursuant to a petition filed before, and an election held after, the formation of I. 53, by the first annexation.
It is argued, on behalf of I. 53, that this second annexation, mandated in the election held the next day after expiration of the 10-day period within which an appeal to the District Court could have been (but was not) taken from the first annexation order, was in violation of 70 O.S.1963 Supp., § 7-1, which statutory provision was dealt with in Caddo Independent School District No. I-5 v. Sampson, Okl., 447 P.2d 765 . The first arguments advanced for I. 128, in answer to this argument, are that I. 53 took no such position in the trial of the case and is therefore precluded from taking it here. The next answering argument is that in the first annexation, D. 12 was the district being annexed to, rather than the one being annexed, and therefore was not the “area affected”, as that term is used in the cited Statute, thus rendering said Statute applicable to the second annexation neither under the above cited case, nor Independent Sch. Dist. Etc. v. Ind. Sch. Dist. Etc., Okl., 363 P.2d 835 . The tenor of I. 128’s further argument is that since D. 53’s annexation to D. 12 had not yet been voted on, when the petition for D. 12’s annexation to D. 128 was filed with the County Superintendent, there was nothing about the first annexation proceedings to interfere with, or preclude, the second annexation, i. e., the annexation of D. 12 to I. 128. Assuming, without deciding, this to be true, the record shows that the election for the latter annexation did not occur until the 10-day period for filing an appeal from the first annexation order had expired. Since no appeal was commenced during that period —which is just the opposite of the situation in Independent Sch. Dist. Etc. v. Ind. Sch. Dist. Etc., supra — nothing said in our opinion in that case casts any doubt upon the conclusion here, that, when on May 17,1969, the election was held to annex D. 12 to I. 128, D. 12 had already become a part of the larger combined district (later designated "I. 53”) under the first annexation order of May 6th, which was then final, by reason of no appeal having been taken therefrom. And this conclusion constituted a sound basis for I. 53’s position, at the trial, that since D. 12 was not then "an entire school districf’, the disputed funds belonged to it under Title 70 O.S.1961, § 7-4(c). As that term is used in the cited Statute, D. 12 was the “area affected” in its annexation to D. 128. Said Statute reads:
“In case the area affected is not an entire school district, the district to which the annexation is made shall not acquire any of the property or assets of the district from which the area affected is detached.” (Emphasis added)
At the close of the trial, the court rendered judgment to the effect that the subject funds belong to I. 128, after finding that I. 53 had never acquired any interest in them, and that, following its annexation to D. 128, D. 12 had transferred to the new combined district, I. 128, all of its real estate, together with improvements thereon, including its school building, with furniture, fixtures, and equipment, as well as buses and school records, and that everything necessary to annex D. 12 to D. 128 “was completed”. In his findings, the trial court specifically recognized that the second annexation attached to D. 128 only the territory that previously had been D. 12, but he further found that I. 53 had “sat idly by without making any attempt to appeal” said annexation. In his said judgment, the • court also found that to construe the Okla *647 homa Statutes as requested by I. 53 would reach a result that he refused to presume the Legislature ever intended.
I would uphold I. 53‘s position in its present appeal from said judgment. There has been no suggestion made here that the above quoted Statute is ambiguous or its meaning doubtful. It is only where a statute is ambiguous and its meaning is not clear, so that it is amenable to more than one interpretation or construction, that it is subject to interpretation by the courts. Hines v. Winters, Okl., 320 P.2d 1114 (2nd syll.). Even when a statute’s constitutionality is challenged, it is not the court’s function or prerogative to consider its propriety, desirability, wisdom, or practicality as a working proposition. See Breeden v. Nigh, Okl., 441 P.2d 981, 986 , quoting Spearman v. Williams, Okl., 415 P.2d 597 , and Application of Oklahoma Capitol Improvement Auth., Okl., 355 P.2d 1028 .
In the brief filed on behalf of I. 128, it is claimed that it will suffer financial loss if not allowed to recoup from the D. 12 surplus funds the expenses it has incurred in schooling that former District’s students since said District was annexed to it; but no suggestion is made that Section 7-4(c), supra, is unconstitutional or that it conflicts with any other statute. Therefore, I can only conclude that the trial court erred in rendering a judgment precluding said Statute’s application to the facts of this case, even though it was his opinion that such application would bring about an inequitable or improper result. Said judgment should be reversed, and this cause remanded to the trial court with directions to set it aside and render a new judgment holding that the property and assets of the former Eureka Dependent School District No. 12 in Texas County (“D. 12”) belong to, and are the property and assets of, the plaintiff in error herein, Independent School District Number 53 (“I. 53”) of said County.
For the reasons above stated, I dissent.
I am authorized to state that LAVENDER, J., concurs in the foregoing views.