Montgomery v. Reorganized School District No. 1

339 S.W.2d 831, 90 A.L.R. 2d 1201
CourtSupreme Court of Missouri
DecidedNovember 14, 1960
DocketNo. 4-8000
StatusPublished
Cited by3 cases

This text of 339 S.W.2d 831 (Montgomery v. Reorganized School District No. 1) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Montgomery v. Reorganized School District No. 1, 339 S.W.2d 831, 90 A.L.R. 2d 1201 (Mo. 1960).

Opinion

STOCKARD, Commissioner.

Appellants have appealed from the judgment of the Circuit Court of Dade County denying their petition to enjoin the Reorganized School District No. 1, Dade County, Missouri (hereafter referred to as the “school district”), the members of its board of directors and the State Auditor from issuing, registering and negotiating bonds which were approved by more than two-thirds of those voting at a special election held on July 23, 1959. On this appeal appellants contend that the election was void because the notice of election was insufficient in that the required number of notices were not posted in five public places, and also that the election was fraudulent and void because of certain conduct of the board of directors.

The school district comprises approximately the western one third of Dade County. It is twenty miles in length north and south, and nine to fourteen miles in width. The high school and a grade school are located in the Town of Lockwood near the center of the district, and a second grade school is located in the northern part of the district in an area known as Syl-vania. On July 2, 1959, the board of directors of the school district called a special election to be held on July 23, 1959 to submit to the voters the proposition of whether the school district should be authorized to borrow the sum of $295,000 [833]*833and to issue its negotiable bonds therefor for the purpose of purchasing a site and constructing a new school building. There is no challenge concerning the call of the election, the substance of the notices or the period of posting. The challenge is limited to the contention that the required number of notices were not posted in “five public places” as required by § 165.040 Laws of Missouri 1953, p. 509, V.A.M.S. pocket parts. The notices were posted in the following places:

“One on the front door of the Lockwood Highschool building, facing south.
“One on the front door of the Lockwood Highschool music room, facing north.
“One on the door of the Sylvania school building, facing west.
“One on the front window of the Lockwood Luminary office, facing east.
“One on the front door of the former Freedom school house, facing south.
“One on the window of Haubein’s General Store, facing east, in Meinert, Missouri.”

In the points of their brief pertaining to the posting of the required notices appellants challenge only the three notices posted on the school buildings, and their challenge as to them is limited to the contention that these notices were not posted in a public place because they were “inaccessible to individuals of the public who must become trespassers to read the notices.” Appellants rely on § 560.465 RSMo 1949, V.A.M.S., which makes it a misdemeanor for one to injure, deface or destroy a building used as a schoolhouse; to “commit any trespass” by removing or polluting without permission the water kept for the supply of the schoolhouse; and to “trespass upon the premises” of a school-house in any manner. They cite Mawson v. Vess Beverage Company, Mo.App., 173 S.W.2d 606, and Houck v. L. A. Tucker Truck Lines, Mo.App., 131 S.W.2d 366. The effect of the Mawson case insofar as material is that every unauthorized entry upon land may constitute a trespass (but see City of Cape Girardeau v. Pankey, Mo.App., 224 S.W.2d 588), and the Houck case holds that in civil actions for trespass the intent of the party committing the trespass is immaterial. Appellants have made no effort to demonstrate why an entry upon the school grounds to read the notices of election would be unauthorized, and an authorized entry does not constitute a trespass. See 87 C.J.S. Trespass .§ 73. We find no merit to this contention.

Appellants also contend that the trial court erred “in admitting into evidence * * * an affidavit of posting amending the original report of posting by adding the posting of a notice of the Haubein Store in Meinert, Missouri.” Apparently at or sometime subsequent to the time the clerk posted the notices he made a report to the school board in the form of an affidavit that he had posted five notices. This affidavit did not mention the notice of election posted on the Haubein. Store. Appellants objected to the introduction in evidence of an amended affidavit in which the clerk reported that he posted six notices at the places previously stated. They do not contend that the notice at the Haubein Store was not in fact posted.

We find no statute requiring an affidavit of posting by the clerk. If no affidavit had been made by him the school board could have shown that the notice at the Haubein Store and the other notices had in fact been posted. Also, if the original affidavit had included a reference to this notice, appellants would not have been bound thereby and could have shown that it had not in fact been posted. In any event, regardless of the purpose of this affidavit the clerk could amend it to recite the true and correct facts. Lake v. Riutcel, Mo.Sup., 249 S.W.2d 450; [834]*834Beauchamp v. Consolidated School District No. 4, 297 Mo. 64, 247 S.W. 1004, 1006; State ex rel. School Dist. of Affton v. Smith, 336 Mo. 703, 80 S.W.2d 858. This notice at the Haubein Store with the other five notices make a total of six, and § 165.040, supra, requires only the posting of five. We subsequently rule that all the notices were posted in a public place. Therefore, we need not rule appellants’ further contention that the two notices posted on the school buildings in Lockwood constituted but a single posting.

Appellants advance additional reasons in the argument portion of their brief in support of their contention that the notices were not posted in public places. They assert that the notice posted on the front door of the high school was 73 feet from the street, the one posted on the front door of the music room was 39 feet from the street, and the one posted on the front door of the Sylvania School was 166 feet from the road. There is no requirement that these notices of election be posted in or next to a public street. The distance a notice is posted from a public street or road becomes important only when the actual place of pósting depends upon the proximity of the public street or road in order to constitute a public place. See for example Wann v.' Reorganized School District No. 6 of St. Francois Comity, Mo.Sup., 293 S.W.2d 408, 413-414, and Lake v. Riutcel, supra. We subsequently rule that these notices were posted in public places for reasons other than nearness to a public street 'or road.'

Appellants also argue that ‘‘posting of notices on school buildings does not give publicity and attract attention of the general public” and is an “extremely poor place” to attract attention. “ ‘A public place’ within the meaning of the statute [§ 165.0ft0] is a relative and not an absolute term, and the determination of what is a ‘public place’ is a question partly of fact and partly of law. Lake v. Riutcel, Mo.Sup.,.249 S.W.2d 450; People v. Simcox, 379 Ill.

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Bluebook (online)
339 S.W.2d 831, 90 A.L.R. 2d 1201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-v-reorganized-school-district-no-1-mo-1960.