Ladd v. School District No. 6

• Decision Date: 02 December 1903
• Docket Number: 13,169
• Parties: JOSIAH LADD, APPELLANT, v. SCHOOL DISTRICT NO. 6 ET AL., APPELLEES
• Court: Nebraska Supreme Court

97 N.W. 594

70 Neb. 438

JOSIAH LADD, APPELLANT, v. SCHOOL DISTRICT NO. 6 ET AL., APPELLEES

No. 13,169

Supreme Court of Nebraska

December 2, 1903

APPEAL from the district court for Hall county: JOHN R. THOMPSON JUDGE. Reversed.

REVERSED.

Thomas O. C. Harrison and William S. Pearne, for appellant.

Richard R. Horth, contra.

ALBERT C. GLANVILLE and BARNES, CC., concur.

OPINION

ALBERT, C.

This is an action to restrain the removal of a schoolhouse from its present site, which belongs to the school district, to another part of the district. The right to change the site is based on the action of the electors of the school district, taken at the annual school meeting held June 30, 1902. The record of that action is as follows: "Voted to move the schoolhouse to N. E. corner N. E. 1/4 of S. 19, T. 10, R. 10. 25 votes cast, 18 for and 7 against." At the time, the school district had no title or estate in fee, or otherwise, in the site to which it was proposed to move the schoolhouse, and the district board were not authorized by the electors at such school meeting, or at any other school meeting, to purchase or lease the new site. Subsequently, the district board, assuming to act for the district, bought one acre in the corner designated, and directed a warrant to be drawn on the treasurer of the district in favor of the grantor for the purchase price. The warrant had not been presented for payment nor had the deed to the site been recorded when this action was brought, and it would appear that there is an understanding between the members of the school board and the grantor that the warrant shall not be presented and the deed shall be withheld from the record pending this litigation.

After the purchase of the new site, the board made preparation for the removal of the schoolhouse thereto, and would have removed it, had they not been restrained by the order of the court made in this case. Upon a hearing had in the district court, plaintiff's bill was dismissed; and he brings the case here on appeal.

It seems to us the plaintiff was entitled to the relief prayed. It will be conceded that a school district board has no authority to remove a schoolhouse to a site to which the district holds no title either in fee or for a lesser estate. To attempt to do so would seem to be such a reckless disregard of public interest as to call for the interference of a court of equity, aside from the provisions of section 7, subdivision 5, chapter 79, Compiled Statutes (Annotated Statutes, 11081), which expressly provides that a school district shall not build a stone or brick schoolhouse upon any site, without first having obtained title in fee thereto, and that it shall not build a frame schoolhouse on any site to which it has not title in fee, without the privilege of removing the same, when directed by the votes of the district.

The case, then, narrows down to this question: Did the district acquire title to the site by the purchase thereof by the board without directions from the electors of the district? Section 8, subdivision 2, chapter 79, Compiled Statutes (Annotated Statutes, 11036), provides that the qualified voters of the school district, when lawfully assembled, shall have power to designate a site for a schoolhouse by a two-thirds vote of those present, and to change the same by a similar vote at any annual meeting. Section 10, chapter 79, provides that such qualified voters shall have power, at any annual or special meeting, to direct the purchasing or leasing of any appropriate site, and the building, hiring or purchasing of a schoolhouse.

In Mizera v. Auten, 45 Neb. 239, 63 N.W. 399, this court held that section 10, supra, was a limitation on the authority of the district board and that such board had no authority to build a schoolhouse, unless directed by the electors of the district at some annual or special meeting. There...