The opinion
John A. Fogleman, Justice, dissenting. County School District No. 1 of Carroll County came into being by operation of Section 1 of Initiated Act No. 1 of 1948 [Ark. Stat. Ann. § 80-426 (Repl. I960)]. It is clear to me that the trial court was in error in holding that the County Board of Education had no power to annex territory from the district to other districts under the provisions of this act (Ark. Stat. Ann. § § 80-426 to 80-429). This authority could be exercised at any time after June 1, 1949. Appellees’ contention that this could not be done after this election of directors in the district is contrary to the act itself. Section 3 (Ark. Stat. Ann. § 80-428) clearly indicates that a county board of education may annex all or a portion of the territory of such a district to other districts in order to provide each child access to accredited schools as close to his home as possible. The act distinctly made the provision of such access the duty of the board of the district and the county board. Consequently, there is nothing in the act to limit the action of a county board to the period prior to election of a district board. This question was reserved in Stroud v. Fryar, 216 Ark. 250 , 225 S. W. 2d 23 . I do not find where it has arisen subsequently.
It then becomes important to determine the scope of appellate review by the circuit court. Appeal within thirty days is provided for by Ark. Stat. Ann. § 80-428. This section does not provide any procedure for appeal or limitation on the scope of review. I take it that § 80-236 governs appeals by any person feeling aggrieved by any final order or decision of a county board of education. It has been specifically held that the circuit court should conduct a trial de novo on an appeal so taken. I think that the circuit court properly tried the case de novo. School District No. 26 v. School District No. 32, 177 Ark. 497 , 6 S. W. 2d 826 . Cases cited by appellant holding that the circuit court can only disturb orders of a county board of education when it is clear that a board has acted arbitrarily, unreasonably, or discriminatorily, relate either to proceedings under other statutes specifically limiting the scope of review or to mandamus, certiorari or equitable proceedings. I am not unaware of cases holding that in matters of formation or consolidation of school districts the action of a county board will not be disturbed unless testimony shows it to be arbitrary and unreasonable. See Bledsoe v. McKeowen, 181 Ark. 584 , 26 S. W. 2d 900 ; Priest v. Moore, 183 Ark. 999 , 39 S. W. 2d 710 ; Milsap v. Holland, 184 Ark. 996 , 44 S. W. 2d 662 ; Perry v. Gill, 184 Ark. 1099 , 44 S. W. 2d 1084 ; School District No. 26 v. Baxter County Board of Education, 183 Ark. 295 , 35 S. W. 2d 1013 . These decisions are based on a statute providing that such action be taken where, in the judgment of the county board of education, it would be for the best interest of all parties affected. It was pointed out in the Baxter County case that this meant the hoard had a discretion in the matter, but the court did not. No such language appears in the statute involved here and the provision for appeal is in the same section as the provision for board action. I feel that trial de novo under the authority above cited was proper here. However, I find nothing to indicate that either the Green Forest District or the Berryville District, to which the territory of School District No. 1 was annexed, has consented to the annexations. This is necessary to the annexation (§ 80-428). I would reverse and remand for a new trial in the circuit court.