School District No. 3 v. Oellien
| Decision Date | 26 February 1908 |
| Citation | 108 S.W. 529,209 Mo. 464 |
| Parties | SCHOOL DISTRICT NO. 3, TOWNSHIP 45, RANGE 6 EAST, OF ST. LOUIS COUNTY, SCUTTON et al., Directors, Appellants, v. OELLIEN et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Jno. W McElhinney, Judge.
Affirmed.
R. H Stevens for appellants.
(1) The petition is in the words of the statute, so far as the allegation complained of is concerned, and is sufficient. Sec. 9772, R. S. 1899. (2) "A majority of the qualified voters and taxpayers of any school district, at any annual meeting," means a majority of the qualified voters and taxpayers of any school district present and voting at any annual meeting, and not a majority of the qualified voters and taxpayers of the district, as contended for by respondent. Richardson v. McReynolds, 114 Mo. 641; Walker v. Oswoold, 68 Md. 146; Richer v Comm'rs of Town of Beaufort, 70 N.C. 110; State ex rel. v. St. Joseph, 37 Mo. 270; State v. Binder, 38 Mo. 450; Russie v. Brazzell, 128 Mo. 109; Vance v. Austell, 45 Ark. 400; Peoples v. Wiant, 48 Ill. 263; In re County Seat of Linn County, 15 Kan. 500; Railroad v. Davidson County Court, 33 Tenn. 637. The case of Richardson v. McReynolds, supra, is practically decisive of the point at issue.
Wm. F. Broadhead for respondents.
(1) That portion of plaintiffs' petition, referred to in the motion to make more definite and certain, is vague, uncertain, and susceptible of two constructions. It may mean to allege that a majority of the qualified voters and taxpayers were at said annual meeting, and such majority voted in favor of said proposition; but from the language used, and the connection in which it is used, it is by no means certain that it is intended to aver that a majority of the qualified voters and taxpayers of the district determined by their vote that it was necessary to have additional grounds; and we are forced to the conclusion that such was not the intent of the averment, from the labored argument of counsel for appellant, to sustain the proposition that it only requires, under the statute and decisions, a majority of those voting at the meeting. Or that portion of the petition may mean to aver that a majority of the voters and taxpayers, who were at the meeting and voting, determined by their vote that it was necessary to have additional grounds, and this seems more likely the intent of the averment, because the burden of the argument of counsel was to sustain this proposition, and the language and connection point rather to this intent than to the intent first suggested. But it is manifestly uncertain and not clearly shown, upon the face of the averments, which proposition the pleader meant to assert and rely on. This, the defendants were entitled to know, so as to have the privilege, before their property is taken, to raise such questions of law or fact, upon the pleadings, as might be necessary to protect their interests. Sec. 610, R. S. 1899; MacAdam v. Scudder, 127 Mo. 345. (2) Section 9772, Revised Statutes 1899, under which this proceeding was commenced, requires that only a majority of all the qualified voters and taxpayers of the district have the power to determine whether it is necessary to have additional grounds for school purposes; and this determination may be manifested at the annual meeting or at a special meeting called for that purpose. This section is perfectly plain in its terms. State ex rel. v. Francis, 95 Mo. 50; State ex rel. v. Harris, 96 Mo. 29; Webb v. Lafayette Co., 67 Mo. 353; Ranney v. Bader, 67 Mo. 476; State ex rel. v. Walker, 85 Mo. 41; State ex rel. v. White, 162 Mo. 533. (3) The exercise of the right of eminent domain must be construed with the utmost strictness. State ex rel. v. School Dist., 79 Mo.App. 109.
This action is one brought by a school district in St. Louis county, being joined therein by its board of directors, the purpose of which is to condemn for school purposes a small tract of land adjoining the present schoolhouse site. The petition recites the various steps taken to get an expression of the qualified voters and taxpayers of the district upon the proposition of acquiring this additional land. The proposition was submitted and voted upon at the annual school meeting. The petition then contains the following averment:
"Plaintiffs further state that the clerk of said district posted notices containing said proposition in five public places in said district on the 18th day of March, 1905, being fifteen days before said annual meeting held on April 4, 1905, at the school house in said district, and a majority of the qualified voters and taxpayers of said school district, at said annual meeting, voting by ballot, voted in favor of said proposition and the said proposition was announced by the chairman of said annual meeting as carried."
The petition then concludes with other proper allegations, and no part thereof is challenged except the portion above quoted.
To this petition, the defendants filed a motion to require plaintiffs to make their petition more definite and certain, which motion is thus stated:
"Now come Johanna C. C. Helmring, Lizzie Oellien, John Oellien, Henry Oellien and Fred Oellien, defendants, by their attorney, and move the court to require the plaintiffs to make more definite and certain the following portion of plaintiffs' amended petition, on the second page thereof, and eighth line, to-wit: 'And a majority of the qualified voters and taxpayers of said school district, at said annual meeting, voting by ballot, voted in favor of said proposition (meaning the proposition to acquire additional grounds as necessary for school purposes), and the said proposition was announced by the chairman of said annual meeting as carried,' for the reason that said words and portion of said petition are indefinite and uncertain in meaning, and defendants are unable to know or understand from said clause whether it is intended thereby to aver that a majority of the qualified voters and taxpayers of said district, actually and only voting at said meeting, voted in favor of said proposition, or whether it is intended thereby to aver that the said qualified voters and taxpayers voting at said meeting for said proposition, constituted, and were in fact a majority of all the qualified voters and taxpayers of said school district whether voting or not."
The foregoing motion was by the trial court sustained and the plaintiffs refusing to plead further, the court dismissed plaintiffs' petition, refused to appoint commissioners and entered judgment for the defendants. After timely but unsuccessful motion for a new trial, plaintiffs in due course of time perfected their appeal. Such is the case for determination here.
This action is bottomed upon the last clause of section 9772, Revised Statutes 1899, which reads:
"And whenever a majority of the qualified voters and taxpayers of any school district, at any annual or special meeting called for that purpose, shall determine that it is necessary to have additional grounds for school purposes, then the board of directors may proceed to condemn and pay for any amount of land adjacent to the schoolhouse site, as provided in this section."
In fact there is no authority in law for the condemnation of additional land adjoining a schoolhouse site, other than the statute hereinabove set out. The numerous allegations of the petition in question show an attempt, at least, to comply with the statute. The first and vital question to be determined is the meaning of the words "majority of the qualified voters and taxpayers of any school district," in the connection in which it is used. Do these words in this connection mean a majority of all the qualified voters and taxpayers of the district, whether present or absent at the time the vote is taken, or do they mean a mere majority of such qualified voters and taxpayers as are present at the time or meeting where the proposition is voted upon and determined? We think these words in the connection used...
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