Consolidated School Dist. No. 2 of Clinton County v. O'Malley

• Citation: 125 S.W.2d 818,343 Mo. 1187
• Decision Date: 08 March 1939
• Docket Number: 35987
• Parties: Consolidated School District No. 2 of Clinton County v. Bessie O'Malley and Patrick J. O'Malley, Her Husband, Appellants
• Court: Missouri Supreme Court

125 S.W.2d 818

343 Mo. 1187

Consolidated School District No. 2 of Clinton County v. Bessie O'Malley and Patrick J. O'Malley, Her Husband, Appellants

No. 35987

Supreme Court of Missouri

March 8, 1939

Rehearing Denied December 20, 1938.

Motion to Transfer to Court in Banc Denied March 8, 1939.

Appeal from Clinton Circuit Court; Hon. R. B. Bridgeman Judge.

Affirmed.

Julian L. O'Malley and V. E. Phillips for appellants.

(1) The trial court erroneously directed the appeal to the Kansas City Court of Appeals. Appellants' objections were to the power of the plaintiff to proceed in condemnation and to the sufficiency of the petition to show a right to condemn real estate until money was on hand. These objections raise points other than the damages and constitute a proceeding in which title to real estate is involved. The cause should be transferred to the Supreme Court. Thompson v. Chicago Santa Fe & California Ry. Co., 110 Mo. 147; Thomas v. Craghead, 332 Mo. 211, 57 S.W.2d 281; St. Louis v. Franklin Bank, 98 S.W.2d 534. (2) City, town and consolidated school districts have only such power to condemn land as is set forth in Section 9333, Revised Statutes 1929. Such statute specifically authorizes boards of education in city, town and consolidated school districts to condemn lands "for such purposes as herein expressed." This section does express purposes for cities having a population of 1000 persons or more. Gower, Missouri, has a population under 1000 inhabitants, consequently the statute fails to express the purposes for which a school district having a city of less than 1000 inhabitants may condemn land, and the plaintiff in this case is without authority to proceed "to enlarge its present school site" as stated in its petition. Sec. 9333, R. S. 1929; Laws 1913, p. 721; Art. IV, Chap. 57, R. S. 1929. (3) Section 9333, Revised Statutes 1929, is defective and fails to give power to boards of education of any town, city or consolidated school district having in it a city of less than 1000 inhabitants to condemn land, but the statute specifically requires that in any proper case of condemnation the board of education shall pay for grounds condemned only "out of the revenues of such school district on hand and provided for such purposes under the Constitution and laws of said State." Sec. 9333, R. S. 1929. (4) The court erred in its instructions concerning damages in its attempted submission of the case to the jury on the matter of damages and particularly in plaintiffs' instructions 1, 2, 3 and 4. State v. Darling, 202 Mo. 165, 100 S.W. 631; State ex rel. Highway Comm. v. Farmer's Estate, 68 S.W.2d 724; 20 C. J., p. 727.

D. F. Bennett for respondent.

(1) Consolidated school district, such as respondent, under the provisions of Section 9215, Revised Statutes 1929, is delegated and clothed with the power of eminent domain for condemnation of lands for school purposes, by authorizing their board of directors to proceed in the same manner prescribed by the statute, Chapter 7, Article II, Revised Statutes 1929, for the condemnation of right of way. Sec. 9215, R. S. 1929; Chap. 7, Art. II, R. S. 1929; State ex rel. Highway Comm. v. Gordon, 36 S.W.2d 105, 327 Mo. 160; Corley v. Montgomery, 46 S.W.2d 288; State ex rel. Highway Comm. v. Huddleson, 52 S.W.2d 33; R. C. L. 10, p. 11; Session Acts 1929, p. 384. (2) Where the question of jurisdiction is based only upon the right to condemn, and determine the incidental damages, the title to real estate is not involved, and this appeal is properly before this appellate court for review. Mo. P. & L. Co. v. Creed, 30 S.W.2d 605, 325 Mo. 1194; Nettleton Bank v. McGauhey's Estate, 2 S.W.2d 771, 318 Mo. 948; State ex rel. Piepmeier v. Camren, 33 S.W.2d 913; State ex rel. Highway Comm. v. Day, 35 S.W.2d 37; State ex rel. Highway Comm. v. Brown, 95 S.W.2d 664; Miller v. Connor, 250 Mo. 677, 157 S.W. 81. (3) The cardinal rule to be followed in the construction of a statute is to arrive at the legislative intent, and rules for the interpretation of a statute are only intended to aid in ascertaining the legislative intent, and not for the purpose of controlling the intention, or of confining the operation of the statute within narrow limits than was intended by the lawmakers. Fischbach Brewing Co. v. St. Louis, 95 S.W.2d 338; Sutherland on Statutory Construction (2 Ed.), secs. 456, 864, 471, 883; Corley v. Montgomery, 56 S.W.2d 283; Wallace v. Woods, 102 S.W.2d 95; Session Act 1929, p. 384; Session Acts 1913, p. 714; State ex rel. v. District, 310 Mo. 258, 274 S.W. 1073.

OPINION

Gantt, J.

Plaintiff is a consolidated school district of Clinton County and the schoolhouse is in the town of Gower, having a population of three hundred seventy-eight. Under Section 9215, Revised Statutes 1929, of the general school law, said district sought to condemn vacant lots one to six, inclusive, block twenty, original town of Gower. The defendant Bessie O'Malley owned said lots. Patrick J. O'Malley is defendant as the husband of Bessie O'Malley. Judgment was entered condemning the lots as additional ground adjacent to the school site and for school purposes. In due course the court appointed commissioners, who filed a report in which they fixed the value of the lots and defendants' damages at $ 635. Plaintiff filed exceptions to the report. Defendants filed answer and also filed exceptions to the report. On a trial the jury fixed the value of the lots and defendants' damages at $ 400. Judgment was entered for defendants for $ 400 and they appealed. In this connection it should be stated that the vacation of the street and alley between the lots and the schoolhouse site is not involved in this suit.

The answer challenged the authority of plaintiff to condemn the lots. It follows that the title to real estate is involved and this court has appellate jurisdiction. [State ex rel. Palmer et al. v. Elliff et al., 58 S.W.2d 283, 284; Richter v. Rodgers et al., 327 Mo. 543, 37 S.W.2d 523; State ex rel. State Highway Commission v. Gordon et al., 327 Mo. 160, 36 S.W.2d 105.]

I. Defendants contend that neither Section 9215 nor any other section of the statutes authorizes plaintiff to condemn the lots as additional grounds for school purposes. Section 9215 follows:

"Whenever any district shall select, at the annual or any special meeting, one or more sites for one or more schoolhouses, or the board of education in city, town or consolidated school district, under the provisions of the statute applicable thereto, shall locate direct and authorize the purchase of sites for schoolhouses, libraries, offices and public parks and playgrounds, or additional grounds adjacent to...