Consolidated School Dist. No. 2 of Pike County v. Cooper

• Decision Date: 03 June 1930
• Docket Number: No. 21199.,21199.
• Citation: 28 S.W.2d 384
• Parties: CONSOLIDATED SCHOOL DIST. NO. 2 OF PIKE COUNTY v. COOPER et al.
• Court: Missouri Court of Appeals

28 S.W.2d 384

CONSOLIDATED SCHOOL DIST. NO. 2 OF PIKE COUNTY v.COOPER et al.

No. 21199.

St. Louis Court of Appeals. Missouri.

June 3, 1930.

As Modified on Denial of Rehearing. June 18, 1930.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by the Consolidated School DistrictNo. 2 of Pike County, against Lucy M. Cooper, executrix of the will of T. A. Cooper deceased, and the Consolidated School DistrictNo. 4 of Pike County.From an adverse judgment, the plaintiff and the last-named defendant appeal.

Affirmed in part, and reversed in part.

Ras Pearson, May & May, and Andrew J. Murphy, Jr., all of Louisiana, Mo., for appellant SchoolDist. No. 2 of Pike County.

Frank J. Duvall, of Clarksville, and Hostetter & Haley, of Bowling Green, for respondent Cooper and appellantConsolidated SchoolDist. No. 4 of Pike County.

BENNICK, C.

This is an action brought by Consolidated School DistrictNo. 2 of Pike county, Mo., against Lucy M. Cooper, executrix of the estate of T. A. Cooper, deceased, and Consolidated School DistrictNo. 4 of Pike county, Mo., to recover the sum of $6,460.28, with interest, which money, in January, 1925, was in the custody of T. A. Cooper, treasurer of Pike county, to the credit of plaintiff district, and by him, as plaintiff contends, wrongfully paid out to Consolidated DistrictNo. 4.There is no controversy about the fact that the payments were made as alleged, the sum of $5,995.28 being paid on February 5, 1925, and the sum of $465 on July 13, 1925.

Plaintiff district was organized in 1914, and defendant district two years later, the two districts being contiguous, and having functioned as consolidated school districts from the time of their organization up to and including the year 1924.Prior to the annual school election of that year, a move was instituted by certain interested parties whereby, under the guise of a change of boundary lines, it was proposed that Consolidated DistrictNo. 4 should annex and take over the whole of the territory of Consolidated DistrictNo. 2.In due course the proposition was put to a vote, defendant district voting in favor of the change, and plaintiff district against it.The matter was thereupon referred by appeal to the county superintendent of schools, who, in accordance with the provisions of section 11201, Rev. St. 1919, caused a board of arbitration to be assembled, which, on April 24, 1924, sustained the contention of defendant district, and approved the so-called change in the boundary lines of the two districts.

Thereupon defendant district, together with certain citizens and taxpayers, sued out a writ of certiorari from the circuit court of Pike county, to try out the question of the legality of the change of boundary lines of the two districts in the manner and form attempted.A trial was had, and on July 25, 1924, the circuit court entered its judgment quashing the writ, from which judgment an appeal was perfected to the Supreme Court, upon the theory that the respondent county superintendent of schools was a "state officer," so as to confer the jurisdiction on that court.The Supreme Court found sua sponte that it had no jurisdiction, however, and ordered the case to be transferred here (State ex rel. v. Ingram, 317 Mo. 1141, 298 S. W. 37); and on February 7, 1928, we entered our judgment, reversing the judgment of the circuit court for the reason, as is stated more fully in the opinion filed, that the applicable statutes do not permit one consolidated school district to take over the whole of the territory of another under the pretense of a change of boundaries.State ex rel. v. Ingram(Mo. App.)2 S.W.(2d) 113.

After the decision of the board of arbitration, three of the six directors of plaintiff district refused to continue longer as such, and became directors of Consolidated DistrictNo. 4.The remaining three directors, who were opposed to the merger, and were desirous that their district should retain its identity, being without a quorum to transact business, petitioned the county superintendent of schools to fill the vacancies existing on the board.The county superintendent thereupon sought advice from the state superintendent relative to what action should be taken, and the latter advised her that Consolidated School DistrictNo. 2 no longer existed, and that she therefore had no authority to appoint any directors upon its board.Upon her consequent refusal, a mandamus suit was brought on July 11, 1924, to compel her to make the appointments, which suit was permitted to await our decision in the appeal from the judgment in the certiorari proceeding.Our mandate reached the circuit court on April 30, 1928, following which the county superintendent promptly made the appointments as the three directors holding over had requested.

In 1925, T. A. Cooper, the county treasurer, had in his hands to the credit of plaintiff district the sum of $6,460.28, which had been derived from current and back taxes assessed in 1923 and prior years against property in plaintiff district.Absent a valid merger, the money concededly belonged to Consolidated DistrictNo. 2.Both districts were claiming the money, however, and before any payments were made, Cooper sought the advice of a disinterested attorney, as well as of the county superintendent, both of whom advised him to pay the money over to defendant district, the attorney relying upon his individual investigation as to the legality of the merger, and the county superintendent upon the advice received from the state superintendent.After the taking of an indemnifying bond, payments were made to defendant district at the times and in the amounts heretofore stated; and it is to recover such payments that the present action was brought.

The petition alleged, in substance, that Cooper made the payments to Consolidated School DistrictNo. 4 without right or warrant of law; that said district received, held, and appropriated the money to its own use, all without right or authority of law; and that plaintiff district had demanded of defendants that the money be returned and paid back to it, and restored to its treasurer, but that defendants had failed and refused to accede to its demand.

Separate answers were filed by the defendants, each setting up that the payments had been honestly made by Cooper under a mistake of law, and honestly expended by defendant district under a mistake of law, and further, that defendant district had received the money for school purposes, and had so expended it; that plaintiff district had received the full benefit of such expenditures; and that it was therefore estopped from claiming the money in this action.

Such affirmative defenses were duly put at issue by the reply which plaintiff filed to each answer.

A jury was waived and the cause tried before the...