Kircher v. Evers

• Decision Date: 08 April 1919
• Docket Number: No. 15360.,15360.
• Citation: 210 S.W. 917
• Parties: KIRCHER v. EVERS et al.
• Court: Missouri Court of Appeals

210 S.W. 917

KIRCHER v. EVERS et al.

No. 15360.

St. Louis Court of Appeals. Missouri.

April 8, 1919.

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

"Not to be officially published."

Suit in equity by Frank Kircher, to restrain Casper Evers and others, directors of School District No. 85 in Clark County, and the clerk thereof, from drawing warrant upon the public school funds. From a decree in favor of defendants, plaintiff appeals. Transferred to the Supreme Court.

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

Wm. Berkheimer and Chas. Hiller, both of Kahoka, for respondents.

ALLEN, J.

This is a suit in equity seeking to restrain the directors of school district No. 85, in Clark county, and the clerk thereof, from drawing any warrant upon the public school funds of said district for the purpose of defraying any of the costs and expenses of conducting a certain school, termed a Catholic parochial school, at the village of St. Patrick, in said county; and to restrain the county treasurer of Clark county from paying out any of the school funds belonging to the district for any such purpose.

The petition, after alleging that plaintiff is a resident and taxpaying citizen of Clark county, residing within the school district mentioned, and setting forth the official positions occupied by the various defendants, alleges that said school district is and for many years has been, the owner of about one acre of ground, describing the location thereof, upon which is situated the public school building of the district, within which the public school of that district was conducted for many years; that "in the year 1909 the board of directors of said district, in violation of their duties and in violation of the Constitution of the state of Missouri (article 11, § 11, p. 131, R. S. 1909) and the school laws of the state of Missouri," conspiring with the "officers, priests, sisters and members" of a Catholic Church at St. Patrick, in said county, closed the district school building, took therefrom the furniture, fixtures, and appliances belonging to the district, and transferred them to a Catholic parochial school, at said village of St. Patrick, owned and controlled by said Catholic Church, situated about a mile distant from the district school building.

And it is alleged that for a period of five years the defendant directors of the district have employed a teacher to teach in said Catholic parochial school, and have drawn their warrants upon the treasurer of Clark county to pay the salary of said teacher and the incidental expense of maintaining such parochial school ant of the funds belonging to the school district; that in 1915 the defendant members of said board of directors entered into a contract with one "Sister Ruth" to teach school for the district in said parochial school at St. Patrick, and are "about to, and threatening to," pay her for her services out of the public school funds of the district and to issue warrants to pay the incidental expenses of said parochial school. Averring that by reason of the alleged unlawful acts of the said board of directors plaintiff and his family and other persons residing within the district have been and will be deprived of the benefits of the public school, and that, if the alleged misappropriations of the moneys of the district be not restrained, plaintiff and his family and others will sustain irreparable injury and damage and are without adequate remedy at law in the premises, injunctive relief is prayed.

The answer, after making certain formal admissions, denies generally the allegations of the...