Kircher v. Evers

• Decision Date: 02 January 1923
• Docket Number: No. 15300.,15300.
• Citation: 247 S.W. 251
• Parties: KIRCHER v. EVERS et al.
• Court: Missouri Court of Appeals

247 S.W. 251

KIRCHER v. EVERS et al.

No. 15300.

St. Louis Court of Appeals, Missouri.

January 2, 1923.

Appeal from Circuit Court, Clark County; N. M. Pettingill, Judge.

"Not to be officially published."

Application by Frank Kircher for an injunction against Casper Evers and others. From an order refusing the injunction, plaintiff appeals. Affirmed.

See 238 S. W. 1086.

E. R. McKee, of Memphis, O. C. Clay, of Canton, and Bert Gridley, of Kahoka, for appellant.

W. L. Berkheimer and Charles Hiller, both of Kahoka, for respondents.

NIPPER, C.

This is an appeal from the circuit court of Clark county, Mo. Plaintiff by injunction seeks to prevent the defendants, Casper Evers, Riney, and Ellison, as members of the board of directors of school district No. 85 of Clark county, and District Clerk John Evers, and County Treasurer Daggs, from drawing and paying any warrant from the funds of said school district for the purpose of paying any teacher or incidental expenses for teaching a school in said district other than at the public school building. Plaintiff appealed "from an order of the circuit court denying an injunction.

It appears that the district owns or owned a schoolhouse and one acre of ground near the center of the district. At the regular annual school meeting in April, 1909, it was voted to move the schoolhouse site to St. Patrick, a little village some distance away from the regular schoolhouse. There were present at the school meeting 18 or 20 voters. All voted in favor of the removal except, perhaps, 2 or 3. The plaintiff was a resident of the district at that time, and continued to reside in such district up to the time of the filing of this action on the 27th day of September, 1915. The district provided no new schoolhouse for the first term after the removal, but the school was conducted in the Catholic church building at St. Patrick, while a new two-story cement school building was erected by such church at St. Patrick. From and after the first term, which was taught in the church, the public school was taught and conducted in one of the rooms of this new school building erected by the Catholic church; and in an adjoining room was conducted the parochial school. The use of the public school room is donated to the district and occupied by such district without the payment of rent or expense. All of the children of this school district are of the Catholic faith, and all of the inhabitants as well, except the plaintiff, who has no children of school age. It is the contention of plaintiff that this injunction should be granted because: (a) The directors of this school district caused and permitted the school to be conducted under sectarian influences, and doctrines taught and instilled into the minds of the pupils in violation of certain provisions of the Constitution; and (b) that the schoolhouse owned by the district had been abandoned and the school was being conducted in another building at a different site, while the schoolhouse owned by the district was suitable, and no other site had been selected.

The case was transferred from this court to the Supreme Court on the theory that the alleged acts with respect to the school being dominated by sectarian influences in violation of the Constitution raised a Constitutional question, thus depriving us of jurisdiction. However, the Supreme Court sent the case back here because it held that no constitutional questions were properly preserved in the motion for new trial. Kircher v. Evers et al. (Mo. Sup.) 238 S. W. 1086. It therefore becomes unnecessary for us to give a detailed statement of the facts disclosed by this record as to whether or not sectarian doctrines were taught, or whether the school was improperly under such influences, because the constitutional questions are no longer in the case. Therefore the only question left for our determination is whether or not plaintiff can maintain this action because of the irregularities, if such exist, attending the removal of the school from the...