England v. Eckley

• Decision Date: 14 December 1959
• Docket Number: A,No. 47608,No. 2,2,47608
• Citation: 330 S.W.2d 738
• Parties: Lester ENGLAND et al., Appellants, v. Leonard ECKLEY, Clerk of Consolidated School Districtudrain County, Missouri, et al., Respondents, Herbert BEAMER et al., Appellants, v. Leonard ECKLEY, Clerk of Consolidated School Districtudrain County, Missouri, et al., Respondents.
• Court: Missouri Supreme Court

Page 738

330 S.W.2d 738

Lester ENGLAND et al., Appellants, v. Leonard ECKLEY, Clerk of Consolidated School District No. 2, Audrain County, Missouri, et al., Respondents, Herbert BEAMER et al., Appellants, v. Leonard ECKLEY, Clerk of Consolidated School District No. 2, Audrain County, Missouri, et al., Respondents.

No. 47608.

Supreme Court of Missouri, En Banc.

Dec. 14, 1959.

Rehearing Denied Jan. 11, 1960.

Ralph L. Alexander, Warren D. Welliver, Columbia, Alexander, Welliver & Wayland, Columbia, of counsel, for appellants.

Latney Barnes, William W. Van Matre, Jr., Mexico, Barnes and Barnes, Mexico, Van Matre and Van Matre, Mexico, of counsel, for respondents.

John M. Dalton, Atty. Gen., John W. Inglish, Asst. Atty. Gen., for State Board of Education amicus curiae.

Brown, Douglas & Brown, R. A. Brown, St. Joseph, for King City School Dist. R-I, amicus curiae.

Don C. Carter, Sturgeon, for Sturgeon School Dist. R-V.

EAGER, Judge.

These cases were transferred here from the St. Louis Court of Appeals by order of this court. The opinion of the Court of Appeals appears at 322 S.W.2d 146. It contains an excellent digest of the facts and the issues, and we shall not relate the facts again in detail. The two proceedings in mandamus were consolidated for trial and on appeal and have been considered together throughout. Alternative writs were issued in the trial court, but were quashed after trial. The Court of Appeals affirmed.

We note first that both proceedings were prosecuted by interested individuals as 'Petitioners.' The usual mode of instituting a proceeding in mandamus is in the name of the State at the relation of the interested party or parties. State ex rel. Wolfe v. Bronson, 115 Mo. 271 21 S.W. 1125, 1127; State ex rel. Kelleher v. Board of President & Directors of St. Louis Public Schools, 134 Mo. 296, 35 S.W. 617, 619: State ex rel. Townsend v. Holtcamp, Banc, 330 Mo. 1101, 55 S.W.2d 428. Such has been the universal practice in this state, though not specifically required by Ch. 529, RSMo 1949, governing such proceedings. No objection was made on this ground in the pleadings, but the point was raised at the trial upon objection to the admission of evidence. The trial court thought that the defect was not a material one, and the point has not been briefed here. We shall pass on to the merits, but we mention the question in order that the bar may not be misled in noting the titles of these cases.

Two different groups of citizens and taxpayers of Consolidated School District C-2 of Audrain County filed these proceedings to compel the directors of that district to advertise and conduct elections upon proposals for changes of boundaries as requested in their respective petitions filed pursuant to section 165.294 Mo.Cum.Supp.1957 (statutory references are to RSMo 1949 and V.A.M.S. unless otherwise noted). The principal issue is whether the changes sought were permissible and proper under section 165.294, governing changes of boundaries, or whether petitioners should have proceeded under the annexation statute, section 165.300. District C-2 (which will be referred to as C-2) is located in the western part of Audrain County; its shape is roughly that of a figure '7,' but with the shank extending straight down (south). The Centralia Reorganized District No. 6 of Boone County adjoins C-2 on the south and west, along its two inner sides. The topography may be better understood by reference to the diagram shown at 322 S.W.2d loc. cit. 148. The England petition sought to remove from the western end or tip of C-2 and to add to Centralia No. 6 (which we shall refer to as Centralia) an area of 43 square miles constituting 24% of C-2; one small segment of this area lay in Monroe County, immediately north of the county line. The Beamer petition likewise sought to remove from C-2 and to add to Centralia an area of 80 square miles lying generally east of the area covered by the England petition, and constituting 45% of the district. The remaining area comprises 55 square miles and 31% of the district. The respective valuations of real estate in the three areas were $902,240, $1,728,350, and $956,530. The Centralia Board submitted both proposals to its voters and each was approved; the Board of C-2 declined to submit either proposal to its voters, apparently regarding both as illegal and void. Several other petitions were filed subsequent to these, each seeking to remove all or part of the remaining area from C-2 and to attach it to some other district, but such references to these as are deemed appropriate will be made in the body of the opinion. There is no question here concerning the status of the respective petitioners as bona fide voters and taxpayers, or concerning the genuineness of the signatures on the petitions.

Our principal question concerns the propriety of seeking these changes under section 165.294. Respondents urge that this was, in substance and effect, an attempt to annex the major parts of C-2 to Centralia and to evade the positive requirement of an affirmative vote in C-2 on both propositions. This necessitates a somewhat detailed review of our statutory provisions. Since 1874 we have had a statute (Laws 1874, p. 151, Sec. 18) permitting changes of district boundaries and containing the essentials of our present section 165.170. In 1887 this was amended to a form very similar to our present section 165.170 (R.S.1889, Sec. 7972). Thus, section 165.170 and its predecessors (applicable to common school districts) have, in substance, authorized: the formation of a new district from two or more districts (or parts thereof), the division of a district into two districts, and changes in the boundary lines between two or more districts. This procedure has always required a vote of the citizens of the districts involved, after petition filed, and some form of arbitration in the event of disagreement between the districts. In recent years (until 1955) the board of arbitration has consisted of four disinterested residents appointed by the county superintendent and the superintendent himself. Section 11201, R.S.1919; Section 165.170, RSMo1949. Since 1955, and where the land lies in more than one county, the membership of the board has been enlarged somewhat. See section 165.170, Cum.Supp.1957, for Common School Districts; Section 165.294, Cum.Supp.1957, for six-director districts; and see House Bill 223, Laws 1959, p. ___. Until 1955 we had a section which expressly extended the Common School District change of boundary provisions of section 165.170 and its predecessors (but not the provisions therein for the formation or division of districts) to Town, City and Consolidated Districts (Sec. 11253, R.S.1919; Section 165.293 RSMo 1949). This was repealed in 1955 (Laws 1955, p. 536). At the same time a new section was enacted, section 165.294 (the one directly in controversy here), providing that in any six-director elementary or high school district a change of boundaries might be had in proceedings to be instituted by petition, and providing further for a submission of the proposal to the voters of the districts affected and for arbitration in case of disagreement. This section contains specific provisions covering those situations where the land lies in more than one county. Section 165.170 (the Common School Districts Statute) which remains on the statute books, contained for many years a provision that no district shall be left (after a change of boundaries) containing less than 20 persons of school age. The amendment thereof in 1955 omitted certain wording which leaves that question in some doubt. The new section involved here, section 165.294 (six-director districts), contains no such provision, nor does it contain any expressed limitation whatever upon the extent of the boundary changes which may be made thereunder. It does not contain the provisions of section 165.170 concerning the formation or division of districts, but is limited solely to changes of boundaries. This section was further amended in 1959 (House Bill 223, 1959 Laws, p. ___) so as to make it applicable also to a change of boundaries between a six-director district and a common school district, to require 10% of the qualified taxpayer voters on a petition for such change, and expressly to permit such changes of boundaries between districts lying in three or more counties; this amended section also provides (subsection 3): 'If the districts affected lie in three or more counties, the presidents of the county boards of education of the two counties containing the greatest area affected, together with one member appointed by the state board of education not a resident of the counties affected shall constitute a board of arbitration.' In all of these change of boundary statutes, the principle of arbitration upon disagreement between districts has been preserved.

Our statute on annexation (section 165.300) has been on the statute books in one form or another since 1885 (R.S.1889, Sec. 8097; and compare Laws 1868, pp. 163-164). Such proceedings may be initiated upon petition of voters, but an election is then held in the district to be annexed, or from which territory is to be taken, and a majority of the votes cast there must favor the annexation; there is no arbitration. If the vote be favorable, the board of the annexing district may then accept the area; if the vote is unfavorable, that ends the matter, with a two-year minimum for resubmission. Section 165.300. The crux of the argument in these cases lies in the fact that under section 165.294 a change of boundaries may be submitted to arbitration over the dissenting vote of C-2, with at least a possibility of adoption; whereas, under annexation proceedings, a negative vote of C-2 is final. Its directors have here refused to submit these propositions to a vote in proceedings which might thus be determined by arbitration.

We look again, closely, at section 165.294. It is too long...