School District No. 5-52 v. Neal

74 Mo. App. 553, 1898 Mo. App. LEXIS 348

• Court: Missouri Court of Appeals
• Decided: April 12, 1898
• Status: Published

Opinion

Bland, P. J.

statement. — In March, 1897, ten of the qualified voters of school district 3-52-10 and 11 in Audrain county, presented a petition to the clerks of said districts and to the clerks of school districts number 2-52-10, number 2-52 and 53-11, ntimber 4-52-11, and number 3-52-10, asking for the formation of a new district from territory to be detached from all of the above named districts, specifically describing it, and proposing to release all claims by the inhabitants of the proposed new district'in the school property of all the districts, from which the new • one was to be formed. The petitions were received and acted upon by the board of directors of all of the above named districts, and notice of the proposition to form the new district, containing an accurate description of the territory proposed to be taken from each of the four districts, were posted in five public places for fifteen days prior to the first Tuesday in April, 1897, the legal day for annual school elections, on which day the voters in each of said districts assembled in annual meeting in their respective districts and voted on the proposition to form the new district. The vote in district number 4-52-11 was favorable to the proposition, but unfavorable in the other three districts. The matter was then brought before the county school commissioner by appeal, who on April 28, 1897, rendered his decision in favor of the formation of the new district, and adjudged that the same should be formed, to be composed and made up of the territory described in the petition. Notwithstanding this decision of the school commissioner John Neal, as clerk of school district number 3-52-10 and 11, and the other defendants as directors of said district, failed and refused to comply with section 7999, Revised Statutes 1889, by making out a correct plat of said district as changed by the formation of the new district and record the same in the record book of his district, and to send a copy of such plat to the county clerk of Audrain county, and to give official information to the county clerk and county commissioner of the changes made in his district by the formation of the new one. The petition in this case is for a writ of mandamus against the defendants to enforce the performance of this duty.

To the alternative writ which was issued on the petition the appellants made the following return: “In the matter of the School District No. 5, township 52, range 10 and 11, now come John Neal, James Walker and Abe F. Stewart as defendants herein, and for their return to the alternative writ of manclamus say that it is true that at the four districts named in said petition and on the day for the annual election thereof, a proposition was submitted to the voters of each school district assembled in their respective districts proposing that certain territory be detached from each of the four said districts which detached territory, put together, would form a new district, and defendants say that all of the petitions presented to the several directors of the several districts were identical in form, except as to the territory to be detached, and said petitions presented the same propositions, except as last aforesaid, and at the said several elections the propositions as contained in said petitions were submitted and voted upon except in district number 3-52-10 and 11; and in all of the districts named notices were put up in said districts as required by law notifying the voters of the propositions for the division of said districts and forming a new district as above stated; and in all of the petitions above described the proposition was submitted proposing to surrender all claim of the new district, but while said petitions and said propositions submitted to the voters that their interest in the property of the old district should be surrendered by the new district, no notice posted in any of the districts except said last district No. 3, contained said proposition of surrender; therefore No. 3 of the districts is the only one ■•‘of said above named districts that had the same proposition submitted, posted and voted upon. Therefore, said voters of the above districts did not have submitted to them the same propositions, nor did they vote upon the same propositions. At the election some of the districts voted for the formation of said new district, and some voted against, and an appeal was taken to the county school commissioner, and the identical proposition submitted to the voters was submitted and passed upon by the school commissioner, as the school commissioner never considered the proposition for the release of the school property by the new district to the old district. And defendants, having fully made their i*eturn, ask to be discharged.”

On the hearing a peremptory writ of mandamus was awarded against the appellants, from which judgment they duly appealed.

PU™°e fd'etucaL05 The return to the alternative writ of mandamus states the facts as to the contents of the petitions and as to the contents of the notices. The proposition to relinquish was in all the petitions, but in none of the notices, except those posted in district number 3-52-10 and 11, of which appellants are directors. The contention here is that by reason of the difference in the notices posted in district 3 from the notices posted in the other districts on the proposition to relinquish, makes the whole election void. It appears to us that this contention is well grounded. Section 7973 provides that when it is proposed to surrender to the old district all claims of the inhabitants of the new district to their share of the school property in the old district, such fact shall be distinctly stated in the notices posted in the districts to be affected, as required by section 7972. The notices in three of the districts failed to conform to this requirement. The proposition contained in the petition presented to the board of directors in these three districts was not the proposition advertised and voted upon. The authority of the board of directors to act and to give notice of the election was the petition. The proposition in the petition was twofold, to form a new district, and to relinquish property rights in the old ones. There was no authority in any of the school boards with which the petition had been filed, to sever this proposition and to submit it in an emasculated form to the voters. The election as a whole was not on the proposition contained in the petition.

The decision of the county school commissioner fails to pass upon the petition as a whole; it is silent as to that part of the petition proposing the relinquishment. The petition is the foundation stone upon which the new district must be erected, if erected at all. It has not been so built and we reverse the judgment.

All concur.