Pettengill v. PUTNAM CTY. R-1 SCHOOL DIST, UNIONSVILLE, MO., 72-1532.

• Decision Date: 18 January 1973
• Docket Number: No. 72-1532.,72-1532.
• Citation: 472 F.2d 121
• Parties: Larry PETTENGILL et al., Appellants, v. PUTNAM COUNTY R-1 SCHOOL DISTRICT, UNIONVILLE, MISSOURI, et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

472 F.2d 121 (1973)

Larry PETTENGILL et al., Appellants, v. PUTNAM COUNTY R-1 SCHOOL DISTRICT, UNIONVILLE, MISSOURI, et al., Appellees.

No. 72-1532.

United States Court of Appeals, Eighth District.

Submitted January 12, 1973.

Decided January 18, 1973.

Rehearing Denied February 12, 1973.

Frick & Mayberry, Kirksville, Mo., filed brief for appellants.

Lawrence M. Berkowitz, Kansas City, Mo., filed brief for appellees.

Before MATTHES, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, District Judge.^*

PER CURIAM.

The appellants, property owners and residents of the Putnam County R-1 Reorganized School District of Putnam County, Missouri, brought an action in Federal District Court in their own behalf and on behalf of all those similarly situated to set aside a school bond election held by the appellee-school district on October 19, 1971. Appellants contended that certain election irregularities deprived them of their right to a fundamentally fair election and of their right to have their votes undiluted by illegal votes cast in the election, and that these irregularities subject the property of appellants to a taking without due process of law. The district court dismissed the complaint for want of jurisdiction. This appeal followed. We affirm the action of the district court.

Appellants alleged the following facts in their complaint: That appellee-school board held an election on a proposed $1,100,000 school bond issue, with the bonds to be retired by the levy of a property tax; that 1,466 votes were cast in favor of the proposition, 726 being cast against; that the proposition was declared to have passed by a margin of five votes over the required two-thirds majority; that appellants believed that five electors personally voting and six electors casting absentee ballots were not qualified to vote because they did not satisfy the residency requirements prescribed by law; that two electors were not qualified to vote because they were not of lawful age when they applied for absentee ballots; that 116 electors cast absentee ballots which were void since there were irregularities in the application, delivery or execution of these ballots; that on November 5, 1971, appellees were informed of these irregularities and were requested to declare that the bond election had failed of passage or to hold a hearing on these irregularities; that these requests were denied.

Appellants attempt to posit the existence of federal jurisdiction on the theory that the board of education of the appellee-school district has diluted appellants' legal votes by counting illegally cast votes and that such (state) action amounts to a deprivation of appellants' civil rights. According to appellants, the complaint alleges facts actionable under the provisions of 42 U.S.C. § 1983, with federal jurisdiction resting either upon 28 U.S.C. § 1343, the jurisdictional counterpart to § 1983, or upon 28 U.S.C. § 1331, which authorizes federal jurisdiction for civil actions of a requisite amount arising under the Constitution, laws, or treaties of the United States.

We reject this theory. Appellants cite no cases, and we have found none, which authorize a federal court to be the arbiter of disputes over whether particular persons were or were not entitled to vote or over alleged irregularities in the transmission and handling of absentee voter ballots.

In Powell v. Power, 436 F.2d 84 (2d Cir. 1970), six voters in a congressional primary election sought the intervention of...