Kinney v. Howard

• Decision Date: 17 January 1907
• Parties: EDWARD KINNEY and JAMES TUCKER, Appellants, v. R. G. HOWARD, ADOLPH BERONIK, T. D. WHITE, L. R. HOFFMAN, and H. H. RATH, County Treasurer, Appellees
• Court: Iowa Supreme Court

110 N.W. 282

133 Iowa 94

EDWARD KINNEY and JAMES TUCKER, Appellants, v. R. G. HOWARD, ADOLPH BERONIK, T. D. WHITE, L. R. HOFFMAN, and H. H. RATH, County Treasurer, Appellees

Supreme Court of Iowa, Des Moines

January 17, 1907

Appeal from Cedar District Court.--HON. J. H. PRESTON, Judge.

THIS is a suit in equity to enjoin defendants from erecting a schoolhouse, from collecting a tax claimed to have been voted for that purpose, from paying out any taxes for the building of the schoolhouse, and for other relief. Upon presentation of the petition to one of the judges of the Eighteenth judicial district of Iowa a temporary injunction was issued as prayed. Motion to dissolve the temporary writ was overruled, defendants answered, and the case went to trial upon the merits, resulting in a decree dismissing plaintiff's petition, and plaintiffs appeal.--Affirmed in part, and reversed in part.

Affirmed in part, and reversed in part.

Wright Leech & Wright and M. J. Wade, for appellants.

W. G W. Geiger and Chas. W. Keplar & Son, for appellees.

OPINION

DEEMER, J.

At a regular meeting of the electors of Gower school township, in Cedar county, Iowa held on March 13, 1905, an apparent majority vote was cast in favor of building a new schoolhouse in district No. 1 and levying a tax of $ 800 for the purpose of meeting the cost thereof. It was also voted to locate the house at the corner of sections 3, 4, 9 and 10. There was an old schoolhouse in said district, something like three-quarters of a mile from the place where the new one was to be erected; but the board of directors, the electors concurring therein, proposed to move the site to the new location. The vote whereby these propositions were carried was one hundred for and ninety-six against. This action is to enjoin the removal of the school site and to prevent the building of the new schoolhouse.

At the outset we may as well dispose of the question of the relocation of the schoolhouse site. That was a matter for the school board of the township (Code, sections 2773, 2801), and its action cannot be questioned by injunction. The remedy for one aggrieved thereby is by appeal to the county superintendent and from him to the State Superintendent. Code, sections 2818, 2820. That an injunction will not lie in such cases, see Ind. Dist. v. Gookin, 72 Iowa 387, 34 N.W. 174.

But appellants contend that the proceedings resulting in the determination to build the schoolhouse and levy the tax whereby to raise the money for that purpose were erroneous, illegal, and void, and that the propositions were not carried by a majority of the legal voters of the township. The matters relied upon are so clearly stated in the brief that we quote therefrom as follows: "Plaintiffs say that the proceedings are void and without jurisdiction: (1) Because the proposition submitted was never adopted by the board of directors of said corporation, and was never ordered submitted at the meeting March 13, 1905. (2) The meeting was void, and the proceedings void, because the secretary did not post notices of the meeting as required by law. (3) There were four illegal votes cast at said meeting, more than sufficient to change the result. (4) The ballots used at said meeting were not in the form required by law. (5) There were no proceedings of the board of directors after said meeting authorizing the construction of the schoolhouse, and the board could not delegate its powers. (6) That the entire proceedings are void, because there is no record, and therefore no competent evidence thereof."

The material parts of section 2746 of the Code read as follows: "A meeting of the voters of each school corporation shall be held annually on the second Monday in March for the transaction of the business thereof. Notice in writing of the place, day and hours during which the meeting will be in session specifying . . . such propositions as will be submitted to and be determined by the voters, shall be posted by the secretary of the board in at least five public places in said corporation for not less than ten days next preceding the day of the meeting." And section 2749, paragraph 7, of the Code, provides that the voters assembled at the annual meeting shall have power: "(7) To vote a school tax, not exceeding ten mills on the dollar in any one year, for the purchase of ground, construction of school-houses," etc. This section further provides: "The board may, or, upon the written request of five voters of any rural independent district, or of ten voters of any school township, . . . shall provide in the notice for the annual meeting for submitting any proposition authorized by law to the voters. All propositions shall be voted upon by ballot in substantially the following form: 'Shall a change of textbooks be directed?' (or other question as the case may be) and the voter shall designate his vote by writing the word 'Yes' or 'No' in an appropriate place on the ballot." From these we see that the board may provide in the notice of the annual meeting for the submission of the question of voting a schoolhouse tax for the construction of a schoolhouse, and shall cause a notice in writing of the place, day, and hours of the meeting, specifying the propositions to be submitted to and determined by the voters, which shall be posted by the secretary of the board in at least five public places in the township for not less than ten days preceding the day of the meeting.

It appears from the record of the school board of directors that at a meeting of the board held September 19, 1904, the members all being present, the following proceedings were had: "After some discussion it was decided by a ballot of five (5) to four (4) to strike off from subdistrict No. 1, and add to No. 5, the following described territory: S.E. 1/4 and S. 1/2 W. 1/4, sec. 11, and also all of N.E. 1/4 sec. 11 and sec. 12, included in Gower township. And also build a new schoolhouse in subdistrict 1; said schoolhouse to be located on corner secs. 3, 4, 9, 10, and the cost of building not to be greater than eight hundred dollars ($ 800). Secretary was instructed to give notice of voting tax to build said new schoolhouse at next annual meeting. R. E. Scully, Secy." Thereafter the secretary of the board prepared the following notice upon blanks furnished by the county superintendent: "Notice is hereby given to the qualified electors of the school township of Gower, in the county of Cedar, State of Iowa that the annual meeting of said district will be held at school subdistrict No. 4, second Monday in March, 1905, at nine o'clock a. m., and closing at 12:00 o'clock m. The meeting will be open for the transaction of such business as may legally come before it, and the board has directed that the following propositions shall be submitted to be determined by the voters: Shall a tax of $ 800.00 be levied to build a new schoolhouse in district No. 1; schoolhouse to be located at corner of sections 3, 4, 9 and 10." This notice was signed by the secretary, dated March 1, 1905, and duplicate copies posted in six public places in the township. When the electors met for their regular annual meeting they found prepared for their use the following form of ballot:

"Ballot.

Shall a tax of $ 800.00 (dollars) be levied to build a new schoolhouse in district No. 1, school house to be located at corner NO of sections 3, 4, 9, and 10."

YES []

NO []

These were used, and the result was as above indicated. It appears that upon all ballots cast, save one, the voter indicated his choice by making a cross in the square opposite the word "Yes" or "No," and upon that one the voter wrote the word "Yes" in the square opposite the printed word "Yes." A list of the electors who voted was kept by the secretary, and this showed that 196 votes were cast. The secretary kept the record of the regular corporate March, 1905, meeting upon some blank pieces of paper, which he turned over to his successor. The only record which we find of subsequent proceedings of the board of directors material to our inquiry reads as follows:

March 20th, 1905.

Mr. Howard was authorized to repair schoolhouse in Dist. No. 1 in shape to hold school during spring term.

Whereas, at the annual meeting of the electors of the school township of Gower, held on March 13th, 1905, the voters levied a tax of $ 800 (eight hundred dollars) to build a new schoolhouse in subdistrict No. 1, the board having doubts about said election being legal, on motion of Mr. Lynch, seconded by Mr. Cahill, the following resolution was adopted: 'Resolved that, if the $ 800 (dollars) schoolhouse tax levied at last annual meeting be legal, the board build a new schoolhouse in what was originally district No. 1 before last September meeting of school board held third Monday in September, 1904.'

Motion to adjourn. Carried.

R. E. SCULLY, Secretary.

February 3rd, 1906.

School board met at called special meeting. President and secretary absent. House called to order by R. G. Howard and T. D. White elected temporary chairman by the following voters: L. R Hoffman, Thos. Brick, Adolph Bronark, T. D. White, and R. G. Howard. On motion, A. G. Hoffman was elected for temporary secretary, T. D. White president pro tem., by the aforesaid board present. The following motion was offered. Motion passed: That the following be appointed to act as a building committee to see to building schoolhouse in subdistrict No. 1, Gower township, Cedar county, Iowa: R. G. Howard, L. R. Hoffman, and T. D. White. Also that said building committee be authorized to select the building spot on one of the corners and located by the electors of Gower township at the annual meeting March 13th, 1905, and to procure title to such site, and that they be further...