Horsefall v. School District, City of Salem

Decision Date02 May 1910
Citation128 S.W. 33,143 Mo.App. 541
PartiesJ. H. HORSEFALL et al., Plaintiffs in Error, v. SCHOOL DISTRICT, CITY OF SALEM, Defendant in Error
CourtMissouri Court of Appeals

Writ of error to Dent Circuit Court.--Hon. L. B. Woodside, Judge.

AFFIRMED.

Judgment affirmed.

A. J Arthur and Lamar & Lamar for plaintiff in error.

(1) The election was also illegal because the ballots were illegal and did not have printed thereon the language expressly provided by the statute. R. S. 1899, sec. 9752; People ex rel. v. Hanson, 36 N.E. 998; Union Co. v Ussery, 35 N.E. 618. (2) Provisions of the statute prescribing the kind of ticket to be used by the voter are mandatory. Hope v. Flentge, 140 Mo. 402; McCay v. Minner, 154 Mo. 616; West v. Ross, 53 Mo 350; Ledbetter v. Hall, 62 Mo. 432. (3) The school board has no authority to establish or create a high school until it has first provided buildings and accommodations for the primary and common school grades to meet the demands of all children of the district of that class. R. S. 1899, sec. 9865; State ex rel. v. Jones, 154 Mo. 575.

Wm. P. Elmer for defendants in error.

(1) The Australian Ballot Law does not apply to school elections. R. S. 1899, sec. 7116; State ex rel. v. Tarkio, 116 Mo. 418; Donnell v. Lee, 101 Mo.App. 191. (2) The failure of the judges to endorse the number and their initials on the ballots did not prevent the judges from rightfully counting them. R. S. 1899, sec. 7104; Hehl v. Guion, 155 Mo. 84; Lankford v. Gebhart, 130 Mo. 630; Bowers v. Smith, 111 Mo. 61; Donnell v. Lee, 101 Mo.App. 191. (3) The technical defects in the form of the ballot are to be disregarded, unless the ballot was confusing, misleading, or affected the actual merits of the election. Payne on Elections, sec. 528; 10 Am. and Eng. Ency. Law, 709, 722; 5 Ency. Evidence, 59; State v. Swearingen, 128 Mo.App. 605; Sanders v. Lack, 142 Mo. 255; Bowers v. Smith, 111 Mo. 61. (4) The board of directors has the authority to establish a high school, select a site, erect a house and furnish the same. R. S. 1899, sec. 9865; State ex rel. v. Jones, 155 Mo. 570; Burnham v. Rogers, 167 Mo. 17; Martin v. Bennett, 122 S.W. 779; 3 Words and Phrases, 2469-2472.

OPINION

COX, J.

Action by injunction to restrain defendants who are the board of directors of the school district of Salem from issuing bonds of the district in the sum of twenty-five thousand dollars. A temporary writ was issued, and, on trial, this was dissolved and the issues found for defendants. Plaintiff brings the case here by writ of error.

A special election was held in the district on May 8, 1909. There were two orders of the board calling the election, one to vote on a proposition to issue bonds of the district in the sum of twenty-five thousand dollars for the purpose of erecting a high school building therein; another order of the board was made calling an election to be held on the same day to vote on two sites for the location of the high school building--one known as the McMurtrey site, and the other as the Douglass site. The clerk was directed to post notices as required by law for each one of these elections. The notices posted, however, as preserved in this record, apply only to the question of the loan and said nothing about site. The ballots used at the election on the question of the loan were in this form: "For the loan, Yes. For the loan, no." The result of the election as certified by the judges and clerks was that, "For the loan, Yes," had 268 votes, and "For the loan, No," had 83 votes. On the question of site the forms of the ballots were: "For the McMurtrey site, Yes. For the Douglass site, yes," and the returns showed that the McMurtrey site had 229 votes, and the Douglass site had 111 votes. The evidence further tended to show that there were three judges and two clerks; that ballots for the use of the voters, in the forms above set out, were furnished at the voting places, and that in the early part of the day, until about one hundred votes had been cast, the voters who voted on both propositions, folded their two ballots together, and the receiving judge, in numbering the ballots placed one number only which would be on the outer ballot of the two. The foregoing are substantially the facts developed at the trial.

Plaintiffs in their petition, allege that the election for the purpose of authorizing the board to issue the bonds of the district was void and assigns therefor ten reasons. Several of these relate to the use which the board is proposing to make of the money realized from the sale of the bonds and to the action of the board and the conduct of the election in relation to the question of a site on which to build a new high school building. As to the intended use of the money, it is sufficient to say that the order of the board providing for the election and the notice of election provide only for the issuing of bonds in the sum of twenty-five thousand dollars for the purpose of erecting a high school building, and the board of directors have no authority to use any of the money they realize from the sale of these bonds for any other purpose. The notice of election notified the voters that this money was to be used for the purpose of erecting a high school building, and they, having voted upon that proposition, the hands of the board are tied, and they cannot use any part of it for the purpose of purchasing a site, nor for paying existing indebtedness, nor for any purpose except that for which it was voted, which is the erection of a high school building. The evidence, however, that the board was attempting to divert any part of this money from the purpose for which it was voted is not very satisfactory, and we assume that on this issue the finding of the court was for the...

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