State v. Bourne

• Decision Date: 10 November 1910
• Citation: 131 S.W. 896,151 Mo. App. 104
• Parties: STATE ex rel. FIRST NAT. BANK OF CARTERVILLE v. BOURNE et al.
• Court: Missouri Court of Appeals

131 S.W. 896

151 Mo. App. 104

STATE ex rel. FIRST NAT. BANK OF CARTERVILLE v. BOURNE et al.

Springfield Court of Appeals. Missouri.

November 10, 1910.

1. MANDAMUS (§§ 154, 160)—PLEADINGS—AMENDMENTS.

Under Rev. St. 1899, § 657 (Ann. St. 1906, p. 674), authorizing amendments to pleadings in furtherance of justice, and section 675 (page 691), making the provision applicable to all actions including mandamus, the court in mandamus may allow amendments to the petition and the alternative writ.

2. PLEADING (§ 248)—AMENDMENTS—DISCRETION OF COURT—NEW CAUSE OF ACTION.

Under Rev. St. 1899, § 657 (Ann. St. 1906, p. 674), authorizing the allowance of amendments in furtherance of justice, the court has a large discretion in allowing amendments to pleadings, so long as the amendment does not set forth a new cause of action, and an amendment which merely sets forth the same matter relied on in the original petition more fully or differently to meet the possible scope of the testimony does not change the cause of action and is properly allowed.

3. PLEADING (§ 248)—AMENDMENTS—MANDAMUS.

Where the original petition for mandamus and the alternative writ charged that the members of a school board had accepted the bid of a bank as depositary of school funds, though the bid was lower than the bid of relator, an amended petition and writ adding a charge of fraud on the part of the board, and stating that the bank awarded the funds, did not change the cause of action and was properly allowed.

4. APPEARANCE (§ 18)—MANDAMUS—GENERAL APPEARANCE—EFFECT.

Where defendants in mandamus entered a general and voluntary appearance after the allowance of an amendment to the petition and alternative writ, instead of entering a special appearance and protecting their rights based on the fact that the amendment was improperly allowed because stating a new cause of action, they conferred on the court jurisdiction of the action under Rev. St. 1899, § 566 (Ann. St. 1906, p. 595), authorizing the institution of suits by the voluntary appearance of the adverse party thereunto.

5. MANDAMUS (§ 72)—CONTROLLING JUDGMENT OF PUBLIC OFFICERS—DISCRETION.

Mandamus does not lie to control the exercise of a reasonable discretion of a public officer, but only to require the performance of a plain ministerial duty.

6. MANDAMUS (§ 79)—CONTROLLING JUDGMENT OF PUBLIC OFFICERS—DISCRETION.

The act of the board of a school district in selecting a depositary for school funds is an act in the administration of the financial affairs of the district and involves the exercise of a ministerial or executive function conferred by law, and, where the board awards the funds to the lowest bidder pursuant to capricious and arbitrary action and from personal favoritism, mandamus may be resorted to to compel the selection of the highest qualified bidder as a depositary.

7. MANDAMUS (§ 1)—NATURE OF PROCEEDING—CIVIL ACTION.

Mandamus is a proceeding having the nature and attributes of a civil action.

8. MANDAMUS (§ 187)—FINDINGS—CONCLUSIVENESS.

The findings of the trial court in mandamus cannot be disturbed by the appellate court when they are supported by the evidence.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Mandamus by the State, on the relation of the First National Bank of Carterville, against E. A. Bourne and others. From a judgment granting relief, defendants appeal. Affirmed.

This suit grew out of the letting of the school funds of the Carterville school district to the Miners' Bank of Carterville. The relator, the First National Bank, filed a petition for an alternative writ of mandamus in the circuit court of Jasper county, in which it complained that the school funds were advertised to be let to the best and highest bidder, and that at such letting it submitted its bid, which was the highest, and that the same was not accepted, but that the funds were let to the appellant the Miners' Bank of Carterville, which was the lowest bidder, and that the failure of the school board to accept said bid was prompted by improper motives, and that the acceptance of the other bid was the result of fraud, corruption, and favoritism. Six of the defendants were members of the school board. The other defendant, the Miners' Bank, was the successful bidder. The acceptance of the lowest bid by the majority of the school board is admitted by the defendants. Two of the defendants, members of the school board, were in favor of awarding the depositary to the relator and appeared in the suit and asked that the remedy prayed for by the relator be granted. The majority of the members of the school board entered a plea of confession and avoidance, in which they stated that they accepted the lowest bid; that they honestly, fairly, and without favoritism awarded the funds to the Miners' Bank of Carterville; that such awarding was within the discretion of the majority of said board; that they had the right to make such award of said funds, taking into consideration their personal knowledge of the conditions and surroundings and the safety of the funds and the convenience of transacting the business made necessary by creating the depositary; that their action was in good faith and with the honest purpose of doing their duty and was for the best interests of the school district and taxpayers generally.

At the conclusion of the trial, the court found the issues for the relator and entered judgment in its favor, the substance of the judgment being: That the relator, the First National Bank of Carterville, in good faith filed its bid, together with a certified check for $200, with the president of the board of education as required by the advertisement, and the relator offered to pay on daily balances for the school funds of said district 4.76 per cent. interest; and further that the relator was ready and willing to furnish a bond to secure said deposit as required by law. "The court further finds that the Miners' Bank of Carterville, one of the defendants herein, also filed with the said president, in due time, according to the terms of said advertisement, its certified check and bid, agreeing to pay 3.50 per cent. on the daily balances of the school fund, to the treasurer of said school district. The court further finds from the evidence that each of said institutions bidding for said funds is a reliable institution, each capable of making a bond, and one as convenient as the other for the transaction of business. And the court cloth further find that the majority of the members of said board of education, to wit, W. A. Dumbauld, J. C. Sanders, W. M. Jarred, and Charles Earle, intentionally, wrongfully, in bad faith, and without any excuse or justification in law or in fact, made said award and election of depositary to the Miners' Bank of Carterville, and by so doing their act constituted a fraud on the relator, First National Bank of Carterville, and on the citizens of Carterville school district. The court doth further find that the relator, by reason of the bad faith and illegal action on the part of the board of education, is entitled to the relief prayed, and that the act of the board of education in selecting a depositary as aforesaid is without authority of law, and is fraudulent, and that the contract entered into by the defendant Miners' Bank, with the said board of education, is, under the law and the facts in this case, a fraud on the relator herein and the taxpayers of said school district." It was further ordered in said judgment that the order of the school board awarding and designating the Miners' Bank as depositary be set aside and held for naught; that the board of education of the school district of Carterville select and designate the First National Bank of Carterville as the depositary for the school funds, in pursuance of its bid to pay 4.76 per cent. on the daily balances on all money belonging to the said district; that it accept from the said First National Bank of Carterville and approve a good and sufficient bond in the amount required by said board for the faithful performance of its duties as depositary for said school district, with proper conditions; and that, upon compliance with the judgment herein, the funds of said district be immediately paid over and deposited in the First National Bank of Carterville as the depositary for the funds of said district. It was further ordered that the defendant the Miners' Bank of Carterville transfer said funds in its possession to the treasurer of said school district, or, upon the order of the board of education of the said district, to the said First National Bank immediately after the execution and approval of said bond. And it was further ordered by the court that a peremptory writ of mandamus issue herein to carry out and enforce the orders and decrees of the court, that the costs of the proceeding be taxed against the defendants, and that execution issue.

Subsequently, a motion for a new trial being filed and overruled, an appeal from the judgment was perfected by the defendants.

The alternative writ of mandamus is as follows:

"Whereas, it appears to this court by a petition of the First National Bank of Carterville, on file in the office of the clerk of our said court: That, under the laws of the state of Missouri, the directors of the Carterville school district, Jasper county, Mo., are required to advertise for bids for depositary of the school funds of said district and to award the funds to said school district to the depositary complying with the requirements of the law and paying the largest rate of interest per annum on daily balance for said funds. That, in compliance with the requirements of the law, the directors of the school district of Carterville, Jasper county, Mo., did, on the 13th day of August, 1909, and thereafter for a period of twenty (20) days, publish in the Evening Record, a daily newspaper published in the city of Carterville, Jasper county, Mo., notice that...