Crum v. Hathaway

• Decision Date: 10 December 1888
• Parties: THOMAS CRUM et al., Appellants, v. W. S. HATHAWAY et al., Respondents.
• Court: Kansas Court of Appeals

32 Mo.App. 555

THOMAS CRUM et al., Appellants, v. W. S. HATHAWAY et al., Respondents.

Court of Appeals of Missouri, Kansas City.

December 10, 1888

Appeal from Audrain Circuit Court. --HON. E. M. HUGHES, Judge.

AFFIRMED.

Statement of case by the court.

A schoolhouse was built in the Eller school district and was used exclusively for school purposes for thirteen years or more, when it was torn down or moved away and a new schoolhouse built in the west end of the district further from the center and beyond the easy reach of the children living in the east end. At an annual school meeting held in April, 1882, a vote was taken under a notice previously given for locating a school-house site in said district; less than one-half of the voters of said district voted in favor of locating a site, but a majority of those present did vote therefor, fixing the site where the new schoolhouse was afterwards built. At the annual meeting there were promises of some kind made by the citizens living in the neighborhood of the place where the new schoolhouse was built by which some of those in attendance were induced to vote for the proposition. The new schoolhouse was built by certain citizens living in the neighborhood thereof at their own expense, and the title taken to the district for one acre of land so long as it should be used for school purposes; the deed providing that in case the land should cease to be used for school purposes it should become the property of the persons who built the house, free from any claim of the district. The new schoolhouse was built in the spring of 1883. The citizens who could receive no advantage of the school fund or taxes collected from the district, finding that no provision would be made for them, became dissatisfied, and at the annual meetings held in 1883, 1884 1885, 1886 and 1887, made efforts to have the schoolhouse rebuilt on the old site, and to have a new site fixed upon. They attended all the school meetings, knew schools were held in the new schoolhouse, and paid their taxes regularly from the time the house was removed. Plaintiffs commenced their suit September 12, 1887, to enjoin the directors from having school taught in that house, and from paying the teacher out of the public funds of the district. Upon final hearing, the court held, that while the new schoolhouse was built without authority of law, plaintiffs were not entitled to relief on account of the length of time they had delayed instituting their suit. Plaintiffs' bill was dismissed, and after an unsuccessful motion for a new trial, they appealed to this court.

G B. Macfarlane, for the appellants.

(1) The action of the school meeting was not in conformity to the law. There is no provision for locating a schoolhouse except in districts newly formed, or where a school-house site has not been selected. Laws of Mo. 1881, p. 199. If the district has a schoolhouse, then the action of the meeting must be to remove the school-house site, and notice of the intention to do so must be given. A majority vote is sufficient to select a school-house site, but two-thirds of the voters of the district must vote to change the site further from the center of the district. Acts of 1881, p. 209. The requirements of the statute were not complied with and the action of the meeting was void. State v. Riley, 85 Mo. 156; Schmetzler v. Young, 84 Mo. 90; Shattock v Phillips, 78 Mo. 80; Seibert v. Botts, 57 Mo 430. (2) There was no such delay in commencing the suit as should, in equity, deprive appellants of relief. There was no acquiescence in the action of the board; on the contrary, at every annual meeting efforts were made to obtain relief from the district; and they apply to the court as soon as they find other means unavailing. The payment of taxes and attending the school meetings could not be construed into an approval of the action of the board. That was simply performing a public duty and not recognizing the location of the schoolhouse (3) There is no analogy between the facts in this case and the case of Stamper v. Roberts, 90 Mo 686, upon the authority of which the case was decided in the circuit court. In that case a new district had been formed. The records kept by the county clerk (sec. 7021) had been made to conform to the new order; the lines of the other districts had necessarily been changed. The rights of the people to the school fund, and the benefits of the public schools depended upon maintaining the validity of the proceedings organizing the new district. In the case at bar no one is injuriously affected by annulling the illegal and selfish action of the board in removing the schoolhouse to their own neighborhood and for their private convenience. According to the terms of their deed the house reverts to them when not used for public school purposes. (4) The old house was not removed nor the new one built until the spring of 1883, and this suit was commenced in September, 1887, less than five years thereafter. Nothing short of the legal bar of the statute of limitations should...