Mason v. Kennedy

• Citation: 89 Mo. 23
• Court: Missouri Supreme Court
• Decision Date: 30 April 1886
• Parties: MASON v. KENNEDY et al.¹

89 Mo. 23

MASON

v.KENNEDY et al.¹

Supreme Court of Missouri.

April Term, 1886.

Appeal from circuit court, Knox county; BEN E. TURNER, Judge.

L. F. Cottey and O. D. Jones, for appellants.

McQuoid & Clancey, for respondent.

NORTON, J.

This is a proceeding to enjoin and restrain defendants, as school directors, from certifying and levying a school tax on the real estate of plaintiff. The circuit court decreed a perpetual injunction, as prayed for in the petition, from which defendants have appealed. The tax enjoined was levied by defendants as school directors of a new district, formed out of parts of school-districts numbered 1, 2, 3, and 4, in which all of township 61, range 11 W., in Knox county, had been divided or laid off. The lawful existence of the new district is challenged in the petition, on these grounds: First, that only three notices of the proposed formation of the new district were put up in each of the districts to be affected; second, that said notices did not describe the entire boundary lines of the new district; third, that there were not 30 scholars within the school age in said district. It was admitted on the trial that the last objection mentioned was not well taken. It was also admitted as follows: That only three papers purporting to be notices were put up in each district, 20 days prior to the annual school meeting at which the proposition to form a new district was submitted. Also admitted that these notices did not describe by metes and bounds the territory of the proposed new district. But they did describe the territory to be taken from each school-district; but the entire metes and bounds were thus described in each of the petitions presented to each of the school boards asking that the proposition to form a district be submitted to a vote, and by agreement of parties that the notices did not describe the whole territory of the new district, not the metes and bounds thereof, but they only described the territory to be taken from each of the old districts. The notices in each district only described the lands to be taken from the district in which they were posted. It is also admitted that at the annual meeting three of the school-districts voted for and one against the formation of the new district; and, upon the matter being referred to the county commissioner, he decided in favor of creating the new district.

The first question presented by the above state of facts is: Does the law when a new school-district is petitioned for by the requisite number of petitioners, only require three notices to be put up in each of the districts to be affected thereby? The section of the statute relating to the subject is as follows: “Sec. 7023, Whenever it may be deemed necessary to form a new district composed of portions of two or more districts, or to change the boundary lines of any district, it shall be the duty of the directors of the districts affected, upon the reception of a petition desiring such change, and signed by ten qualified voters residing in either of the districts affected, to post a notice of such desired change in at least three public places in each district interested, twenty days prior to the time of the annual meeting; and the voters, when assembled, shall decide such question by majority vote. If the assent to such formation be given by all the annual meetings of the various districts thus voting, the district shall be deemed formed, or the boundary lines thus changed, from that date. But, if a part of the districts affected vote in favor of and a part against such change, the matter shall be referred to the county commissioner for final decision, who shall proceed to inform himself as to the necessity of the proposed change; and his decision thereon shall be final, and shall be transmitted to the various district clerks, and by them be entered on the records of the various district clerks: * * * provided, that no new district shall be thus created, or boundary line changed, by which any district shall be formed, containing within its limits less than thirty pupils by...