School District No. 2 v. Pace

• Decision Date: 16 May 1905
• Citation: 113 Mo. App. 134,87 S.W. 580
• Parties: SCHOOL DISTRICT NO. 2, TP. 24, RANGE 6 EAST, BUTLER COUNTY, v. PACE et al.
• Court: Missouri Court of Appeals

87 S.W. 580

113 Mo. App. 134

SCHOOL DISTRICT NO. 2, TP. 24, RANGE 6 EAST, BUTLER COUNTY, v. PACE et al.

St. Louis Court of Appeals. Missouri.

May 16, 1905.

SCHOOL DISTRICTS — FORMATION OF NEW DISTRICT— PROCEEDINGS—LEGALITY— STATUTES—CONSTRUCTION.

1. Rev. St. 1899, § 9742, provides that, when it is deemed necessary to form a new school district from other districts, the clerk of each

district affected shall, upon the reception of a petition, post a notice in a specified number of public places, etc. Held, that where no petition, as required by the statute, was presented to the clerk of any of the districts affected, the election on the question was void.

2. Rev. St. 1899, § 9742, provides for the formation of a new school district from other districts by petition to the clerks of each district to be affected, and the posting of notices by the clerks, and provides that if all the districts do not vote in favor of such change the matter may be appealed to the county commissioner, who shall appoint a board of arbitrators. Held that, where an election was void for failure of the clerks to properly post notices, the action of a county commissioner and board of arbitration on appeal was also void.

3. Certiorari brings up for review only the record of the tribunal to which it is directed, and not the evidence, nor can the evidence be considered, even though included in the return.

4. Rev. St. 1899, § 9742, provides for the formation of a new school district from other districts by petition to the clerks of each district to be affected, and the posting of notices by the clerks, and provides that if all the districts do not vote in favor of such change the matter may be appealed to the county commissioner, who shall appoint a board of arbitrators. Held, that inasmuch as the only record that the board of arbitrators is required to make is to reduce its decision to writing and sign it and deliver it to the commissioner, who is to transmit it to the districts affected, on certiorari to review the action of the board of arbitration, such certificate alone can be considered.

5. Rev. St. 1899, § 9739, declares school districts to be bodies corporate possessing the usual powers of public corporations, and the next section requires a newly formed district to organize by electing a board of school directors within 15 days after the formation of the district. Held, that an information in the nature of a quo warranto, commenced 60 days after the formation of the district, is the appropriate remedy to test the legality of the formation of a new school district.

Appeal from Circuit Court, Butler County; H. N. Phillips, Special Judge.

Certiorari to review the action of William N. Pace and others, as a board of arbitrators creating a new school district, and, from a judgment sustaining a motion to quash the writ, relator, School District No. 2, township 24, range 6 east, Butler county, appeals. Affirmed.

E. R. Lentz, for appellant. David W. Hill and J. T. Davison, for respondent.

BLAND, P. J.

This is a proceeding by writ of certiorari to review the action of a board of arbitrators creating a new school district from territory detached from four contiguous districts in Butler county. The return of the respondents to the writ of certiorari contained a transcript of their action and certificate, and also copies of the petitions presented to the clerks of the four districts affected by the new district, copies of the notice of election, and the certificates of the several clerks of the districts of the result of the election in each of the four districts. Appellant moved for judgment on the return. Respondents filed the following motion to quash the writ: "First. Because the petition does not state facts sufficient to entitle the petitioner to the relief prayed for. Second. Because the facts stated in the petition do not show the petitioner entitled to a writ of certiorari or other extraordinary or equitable relief. Third. Because, upon the face of the petition, the petitioner is estopped from claiming the relief prayed for. Fourth. Because the decision of the county school commissioner and board of arbitration, in forming the new school district mentioned in the petition, is final, and not subject to review by writ of certiorari. Fifth. Because there is a defect of both party relator and parties respondents." Hon. J. L. Fort, the regular judge of the court, being unable to attend and hear the cause, Hon. H. N. Phillips was agreed upon by both parties to hear and determine the case. The motions to quash and for judgment on the return were both taken up and heard, and, after mature deliberation, the learned special judge sustained the motion to quash, and the writ was quashed. The appeal was taken in the ordinary way. The board of arbitrators was appointed by the commissioner of public schools of Butler county under the provisions of section 9742, Rev. St. 1899.

It is conceded that the certificate of the board of arbitrators forming the new school district is regular on its face, and is sufficient in form and substance. The districts from which territory was detached to form the new district were Districts Nos. 2 and 4, township 24, range 5, and Nos. 2 and 4, township 24, range 6. Twenty-four voters of these districts signed a petition, and filed it with the clerk of District No. 2, township 24, range 6. In their petition they expressed the desire for the formation of a new school district out of territory (described) to be detached from each of the above four districts, and petitioned that the proposition to form the new district be submitted to the voters of the several districts to be affected at the annual school election to be held in April, 1904. A synopsis or memorandum of this petition, signed by no one, was filed with the clerks of each of the other three districts. Three of the district clerks posted notices in their districts, 15 days prior to the election, notifying the voters thereof that the proposition to detach described territory from the districts would be voted on at the annual school election in April, 1904. The purpose for which the territory was to be detached, or what was to be done with it after detached, was not stated in any of the notices. Three of the districts voted upon the proposition (if there was one) contained in the notices. District No. 2, township 24, range 6, voted in favor of the proposition; two others voted against it; in the fourth no votes were cast on the proposition. The majority vote...