Remington v. Flemington School Dist.

• Decision Date: 11 December 1929
• Docket Number: No. 29364.,29364.
• Citation: 22 S.W.2d 800
• Parties: REMINGTON et al. v. FLEMINGTON SCHOOL DIST. et al.
• Court: Missouri Supreme Court

22 S.W.2d 800

REMINGTON et al. v. FLEMINGTON SCHOOL DIST. et al.

No. 29364.

Supreme Court of Missouri, Division No. 2.

December 11, 1929.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

Action by Alva Remington and others against Flemington School District and others. Judgment of dismissal, and plaintiffs appeal. Affirmed.

Herman Pufahl, of Bolivar, for appellants.

T. H. Douglas, of Bolivar, and L. Cunningham, of Jefferson City, for respondents.

COOLEY, C.

This action was brought in the circuit court of Polk county by appellants, ten in number, to obtain an injunction against defendant school district and the members of the board of education thereof, restraining the threatened issuance of certain bonds of the district and the levying of a tax to pay interest and to provide a sinking fund for payment of the bonds. Defendants other than the district are the members of the board. The court sustained defendants' demurrer to plaintiffs' amended petition, and plaintiffs declined to plead further, whereupon the court rendered judgment for defendants dismissing plaintiffs' bill and for costs. From this judgment plaintiffs appeal. The judgment was rendered and appeal taken on July 10, 1928, and the cause has been advanced upon our docket.

As the petition is quite long, we shall set out in hæc verba only such parts as seem necessary to an understanding thereof, summarizing other portions. Omitting caption, it is as follows:

"The plaintiffs state that they are resident taxpayers of what was originally Flemington School District of Polk County, Missouri. That the defendant, Flemington School District claims to be organized as and claims to be a town or village school district in Polk County, Missouri. That the defendants, Winnie Robbins, P. W. Hays, Hobart L. Emberton, Peter T. Bowen, J. D. Stone and S. W. McCracken claim to be and claim to comprise the Board of Education of said school district. That Winnie Robbins claims to be the President and P. W. Hays claims to be the Clerk or Secretary of said Board of Education and of said school district.

"The plaintiffs state that on the 14th day of February, 1928, the said defendants (naming the individual defendants) pretended to meet as the Board of Education of the defendant, Flemington School District, and claimed to have passed a resolution in words and figures as follows, to wit."

Then follows a copy of the resolution which calls a special election to be held March 1, 1928, to vote upon a proposition to issue bonds in the amount of $12,000 to erect a new school building fixes the polling place, appoints judges of the election, provides form of ballot, and directs the clerk to post the notices; a statement that the notices were posted by the clerk on February 14 as directed; a copy of the notice; a statement that the election was held on March 1 pursuant to the notices, resulting, as ascertained by the judges and clerks of the election and by them certified to the board of education, that a total of 192 votes were cast, of which 132 were cast for the loan and 60 against it; and a copy of the record of the board of education made at a meeting on March 3, all members being present, at which the vote was canvassed and the result of the election formally and fully found and declared. These proceedings all appear upon their face fair and regular, and no insufficiency therein is pointed out in plaintiffs' petition. The petition then proceeds:

"The plaintiffs state that the said Board of Education is now threatening to pass a resolution providing for the issuance of the bonds and for securing bids for the sale and purchase of said bonds and for levying taxes to pay the interest on said bonds and creating a sinking fund to pay off said bonds.

"The plaintiffs state that the said Board of Education had no authority to call said election and that said election was absolutely null and void.

"The plaintiffs further state that the said Flemington School District was never legally organized as a town or village school district and has, in truth and in fact, no legal existence. That no legal proceedings were ever taken to organize the original Flemington School District into a town or village school district.

"Plaintiffs further state that the defendants, members of the Board of Education, were never legally elected and that no legal order was ever made calling said election and no legal notices were ever given of said election and that the holding of said election is null and void and the Judges and Clerks had no right to hold or carry on said election and the same is null and void.

"The plaintiffs further state that at said election not more than one hundred twenty-four (124) legal votes were cast in favor of said loan and in favor of the proposition to issue bonds and that at least sixty-five (65) legal votes were cast against the proposition and against the issuance of the bonds, and that at said election two-thirds (2/3) of the qualified voters did not vote in favor of said proposition and did not vote in favor of the issuance of the bonds and did not vote in favor of the loan.

"The plaintiffs state that notwithstanding the fact that less than two-thirds of the legal voters at said election had voted for the proposition, the Judges and Clerks of said election erroneously and wrongfully caused and permitted said ballots to be erroneously and wrongfully counted and that thereby a different result was obtained and certified, and that the...