School Dist. of Columbia v. Jones

• Decision Date: 14 June 1910
• Citation: 229 Mo. 510,129 S.W. 705
• Parties: SCHOOL DIST. OF COLUMBIA v. JONES et al.
• Court: Missouri Supreme Court

129 S.W. 705

229 Mo. 510

SCHOOL DIST. OF COLUMBIA v. JONES et al.

Supreme Court of Missouri. Division No. 1.

June 14, 1910.

Rehearing Denied June 28, 1910.

1. SCHOOLS AND SCHOOL DISTRICTS (§ 24)— LEGAL CAPACITY OF DISTRICT—COLLATERAL ATTACK.

The legal capacity of a school district organized under the provisions of Rev. St. 1899, §§ 9860-9879a (Ann. St. 1906, pp. 4519-4530), cannot be collaterally assailed in proceedings by it to condemn land for a schoolhouse site, since quo warranto at the instance of the state is the only method of attack.

2. EMINENT DOMAIN (§ 168)—RIGHT TO CONDEMN.

In proceedings to condemn land, the right to condemn must clearly appear.

3. EMINENT DOMAIN (§ 9)—RIGHTS OF SCHOOL DISTRICT—STATUTES.

Rev. St. 1899, §§ 9878, 9860 (Ann. St. 1906, pp. 4530, 4519), relating to the organization of city school districts which have six directors, provides, among other things, that they may sue and possess the same corporate powers and be governed the same as other school districts except as herein provided. Section 9772 (page 4483) relates to county school districts having three directors, and provides that the board of directors may condemn land for a schoolhouse site. Held, that city school districts organized under sections 9878, 9860, had express power to condemn land, since "other school districts" referred to school districts mentioned in section 9772.

4. EMINENT DOMAIN (§ 9)—SCHOOL DISTRICTS —STATUTES.

Acts 1909, p. 838, do not amount to a legislative construction that city school districts organized under Rev. St. 1899, §§ 9860-9879a (Ann. St. 1906, pp. 4519-4530) have not the power to condemn land for a schoolhouse site.

5. EMINENT DOMAIN (§ 8)—CONSTRUCTION OF STATUTES.

Condemnation statutes are strictly construed.

6. EMINENT DOMAIN (§ 169)—SCHOOLHOUSE SITE—VOTE OF BOARD OF DIRECTORS—STATUTES.

Rev. St. 1899, § 9878 (Ann. St. 1906, p. 4530), provides that the board of directors of a city school district shall have power by affirmative vote of not less than two-thirds of all its members to locate, direct, and authorize the purchase of sites for schoolhouses. Section 9860 (page 4519) provides that such city school districts shall have the same powers as other school districts, except as herein provided. Section 9772 (page 4483), relating to county school districts, permitted the condemnation of land for a schoolhouse site, whenever authorized by a majority vote of the voters. Held that, though the power of city school districts to condemn land for a schoolhouse site was shown in section 9772, still, because of the use of the words "except as herein provided," land could be condemned by a two-thirds vote of the board of directors of such district.

7. EMINENT DOMAIN (§ 170)—SCHOOLHOUSE SITES—CONDITIONS PRECEDENT—AGREEMENTS AS TO PRICE.

A city school district organized under Rev. St. 1899, §§ 9860-9879a (Ann. St. 1906, pp. 4519-4530), had the power to condemn land as provided for county school districts in section 9772 (page 4483), which read, "whenever any district shall select one or more sites and cannot agree with the owners thereof as to the price to be paid for the same, or, for any other cause, cannot secure title thereto, the board of directors may proceed to condemn." Held that, where a city school district could obtain good title to land only through the courts because of the interests of a minor, that condition as to the price did not apply, since the two conditions were separate.

8. EMINENT DOMAIN (§ 157)—SCHOOLHOUSE SITES—COMMUTING LIFE ESTATE—EVIDENCE.

In proceedings to condemn land for a schoolhouse site, the court cannot, in awarding damages, commute a life estate where there is no evidence of the age of the life tenant.

9. NEW TRIAL (§ 130)—SCOPE OF MOTION— FAILURE OF PROOF.

A motion for new trial alleging that the verdict and judgment is against the law and the evidence, and the weight of the evidence is broad enough to cover a contention that (here was a total failure of proof as to the age of a life tenant, and hence the court was in error in commuting a life estate.

Appeal from Circuit Court, Boone County; N. D. Thurmond, Judge.

Action by the School District of Columbia against A. H. Jones and others. From a judgment for plaintiff, defendants appeal. Reversed, and cause remanded, with directions.

David H. Harris and Webster Gordon, for appellants. E. W. Hinton and W. M. Williams, for respondent.

GRAVES, J.

This is an action brought by the school district of Columbia to condemn land for a schoolhouse site. The plaintiff since 1872 has been acting as a city school district, with a board of six directors. In April, 1909, said school district had voted and sold bonds in the sum of $17,500 for the purpose of buying a site and erecting a schoolhouse thereon. In May, 1909, the board of directors, by an affirmative vote of more than two-thirds of its members selected the site involved in this suit. The petition, after alleging these facts, and describing the land sought to be condemned, thus speaks:

"That the defendants are the owners of said above-described tract as hereinafter set forth, to wit, that on or about the ____ day of February, 1891, one Patrick H. Jones died seised in fee of about fifty (50) acres of land in Boone county, Missouri, of which said tract is a part, and by his last will and testament, which was duly admitted to probate by the probate court of Boone county, Missouri, devised the same to his wife, Eliza K. Jones, for and during her natural life, and directed that at her death said fifty (50) acres should be sold by his executor, who is the defendant A. H. Jones, and that the proceeds thereof should be divided per capita between the defendant Mrs. Cora N. Tillery and the children of Mrs. Louisa Carson; and that it was further provided by said will that if the said Mrs. Cora N. Tillery should die prior to the distribution, her share of the proceeds should descend to her bodily heirs, and if she should die without heirs of the body her surviving then to the children of Mrs. Elizabeth Murry, who are the defendants Erl Murry, Thomas H. Murry and Lee Murry. The said Eliza K. Jones accepted the provisions of said will, and on or about the ____ day of March, 1905, made, executed and delivered her certain deed of conveyance whereby she conveyed her aforesaid life estate in said tract of land unto the defendant, John A. Stewart. That Beula M. Ricketts, Kella B. Shields, Mary H. Dinkle, Gussie E. Richards, and Stella R. Champion were and are the sole and only children of the above-mentioned Mrs. Louisa Carson, and that they on or about the ____ day of February, 1905, made, executed and delivered their certain deed of conveyance, whereby they conveyed all of their right, title and interest in said tract of land and in the proceeds of sale thereof to the defendant John A. Stewart. That the defendant Mary Tillery is the only child of the defendant Mrs. Cora Tillery, and as such has a contingent interest in said tract of land and in the proceeds of sale thereof. And that the defendant A. H. Jones, as the executor of the will of the said Patrick A. Jones, deceased, claims to own and hold the legal title to said tract of land for the purpose of sale. Petitioner further states that, by reason of the diverse and uncertain interests of said defendants as owners, this petitioner is unable to acquire the title to said tract of land, and that it is unable to agree with said owners as to the price to be paid therefor. That said above-described tract of land is suitable and necessary for a schoolhouse site for the petitioning district, and that the board of directors thereof have authorized and directed this proceeding for the condemnation thereof; wherefore petitioner prays that summons be issued herein as provided by law notifying said defendants of the time and place when this petition will be heard, and said above-described tract of land be condemned and the title thereto be vested in said school district for the purposes aforesaid, and to that end that three disinterested freeholders of Boone county, Missouri, be appointed to assess the damages for the appropriation thereof, and for such other orders as may be necessary in the premises."

To this petition, defendants by appropriate pleadings raised the several questions to be disposed of in the case. Commissioners were appointed who assessed the damages at $3,750, which sum was paid into court. By its judgment, the court approved the report of the commissioners, condemned the property for a school site, and vested title in the plaintiff. The judgment further details how defendants were interested in the property and how and through whom they held title, and further determined the value of a life estate held by one of the defendants. The interests of the several parties were fully detailed by this court in the recent case of Stewart v. Jones, 219 Mo. 614, 118 S. W. 1, the property involved in this case being a part of the property involved in that case.

Defendants raise numerous questions, thus (1) that the plaintiff was never legally organized as a school district; (2) that city school districts have no power to condemn property for a schoolhouse site; (3) that if such school districts do have such power, this plaintiff has not selected the site according to the terms of the statute, and therefore this action must fail; (4) that there was no attempt to acquire the title by purchase before the institution of this suit, and for that reason the action must fail; and (5) that there was no evidence upon which the court could commute the life estate.

In view of many facts which necessarily will follow in the course of the opinion, this sufficiently states the controversy.

1. The first question stated above does not appear to be seriously urged in the brief of the defendants. It is true that throughout the brief is found such expressions as "The school district of Columbia which professed to be organized...