Mizera v. Auten

• Citation: 45 Neb. 239,63 N.W. 399
• Parties: MIZERA v. AUTEN ET AL.
• Decision Date: 23 May 1895
• Court: Nebraska Supreme Court

45 Neb. 239

63 N.W. 399

MIZERA

v.AUTEN ET AL.

Supreme Court of Nebraska.

May 23, 1895.

Syllabus by the Court.

Certain sections of chapter 79, Comp. St. 1893, entitled “Schools,” construed, and held: (1) That the electors of a school district, and they alone, at their regular annual meeting, or at a special meeting called for such purpose, have power to direct the building of a schoolhouse; (2) that the district board of a school district has no power or authority of law to appropriate the funds of a school district to the erection of a schoolhouse, unless first authorized so to do by a vote of the electors of such school district; (3) that when a school district owns a schoolhouse site, and has the money in its treasury sufficient to build a schoolhouse, which money was raised for that purpose, the electors of such school district, at any regular annual meeting or at a special meeting called for that purpose, may direct the building of a schoolhouse on the school site, and that such school building be paid for out of the funds on hand for that purpose; (4) that the electors at such meeting may designate the school board to act as the agent of the district to superintend the construction of such schoolhouse; (5) that, if no one is designated by the electors of the school district to superintend the construction of a school building directed to be built, then the school board of such district has authority to make contracts and superintend the erection of the school building ordered; (6) that the electors of a school district are not obliged to select the members of the school board as agents to superintend the construction of a building ordered to be built, but may select such person or persons as in their judgment will best subserve the interests of the school district.

Appeal from district court, Saunders county; Wheeler, Judge.

Action by Frank Mizera against S. W. Auten and others to restrain the erection of a schoolhouse. Judgment for defendants, and plaintiff appeals. Affirmed.

H. Gilkeson and Frick & Dolezal, for appellant.

Simpson & Sorrenberger, for appellees.

RAGAN, C.

Briefly, the material facts in this case are: On the 27th day of June, 1892, the electors of school district No. 14 of Saunders county, at their regular annual meeting held on that day, voted the erection of a schoolhouse on the school grounds belonging to said district. Such schoolhouse not to exceed a speified sum, there then being in the treasury of said district sufficient funds to build such schoolhouse, which funds had been previously raised for that purpose. At such meeting the electors of said district, by a vote, appointed S. W. Auten, Moritz Ladenburger, and Jasper Swan, three electors of said district, a building committee, and instructed them to advertise for bids for building such schoolhouse, and to build a schoolhouse on the grounds belonging to the district. The gentlemen appointed as such building committee entered into a contract with one Michael Sorrick in and by which the latter contracted to furnish the material and build a schoolhouse on the school-district grounds. The contract between the building committee and Sorrick did not expressly recite that the building committee was acting for and on behalf of the school district; and Sorrick also gave a bond to the building committee naming them individually as obligees to comply with his contract in reference to furnishing the material and building the schoolhouse. Sorrick began the erection of the schoolhouse according to his contract with the building committee, and had the building well under way when, on the 20th of September, 1892, Frank Mizera brought this suit to the district court of Saunders county against said...