School District No. 35 v. Hodgin

• Decision Date: 24 February 1904
• Parties: SCHOOL DISTRICT No. 35 v. HODGIN, Appellant
• Court: Missouri Supreme Court

79 S.W. 148

180 Mo. 70

SCHOOL DISTRICT No. 35 v. HODGIN, Appellant

Supreme Court of Missouri

February 24, 1904

Appeal from Holt Circuit Court. -- Hon. Gallatin Craig, Judge.

Affirmed.

John Kennish, C. A. Anthony and Frank Petree for appellant.

(1) Plaintiff school district is not legally incorporated: 1 notices of the proposed change were not given as required by law; 2, the proposed new district contains, besides territory taken from old districts, unorganized territory, and the statutory provision for taking unorganized territory into a district is not followed; 3, no appeal was taken from the result of the election to the school commissioner by any party authorized to make such appeal; 4, the pretended appeal does not take up to the commissioner the whole question voted upon by the districts affected; 5, the commissioner does not adjudicate the whole question voted upon by the school districts affected; 6, the incorporation has never been completed by the organization of the new district as required by law. (a) The first election was not held within the new district, being held in unorganized territory, not legally a part of the district. (b) No board of directors was elected as one of the members resided in the unorganized territory which was not legally included in the proposed new district. (2) When a school district shall have selected a site for a school house and can not agree with the owner thereof as to the price to be paid for the same, "the board of directors may proceed to condemn the same." Sec. 9772 R. S. 1899. It nowhere appears in the record that this proceeding to condemn is by the board of directors, or that the board of directors, as an organization, has had any thing to do with it, or has authorized it to be brought. (a) The cause is entitled School District No. 35, etc., v. Noble Hodgin. (b) The petition alleges that "plaintiff" is a corporation duly organized, etc. (c) The petition is signed "School District No. 35. etc., by Charles M. Childers, president of the board." (d) The court finds that "plaintiff" is a corporation duly organized, etc. "Plaintiff" should be the board of directors of School District No. 35, and not the school district. There is nothing anywhere in the record to show that any action has been taken by the board, or that any of the board have had anything to do with bringing or prosecuting the action, except Charles M. Childers, and he purports to be acting for, and representing, the district and not the board of directors. There must be corporate action by the board of directors; not by one or all of the individual members acting separately. State ex rel. v. Lockett, 54 Mo.App. 202. When the power to condemn is vested in one tribunal it can not be exercised by another. St. Louis v. Gleason, 89 Mo. 67, S. C., 93 Mo. 33.

T. C. Dungan for respondent.

Although there may have been some irregularities in the proceedings, yet if had in good faith they could not be treated as void in such collateral proceedings, unless such irregularities affect the substantial rights of the old districts, or direct proceedings were instituted at the time to set such action aside. If all districts acquiesce and proceed under the new order of things and become de facto districts, it certainly does not lie in the power of any one resident to defeat the organizations. Rice v. McClelland, 58 Mo. 121.

ROBINSON, C. J. Brace, Marshall, Gantt, Valliant and Fox, JJ., concur; Burgess, J., not present.

OPINION

In Banc

ROBINSON C. J.

On June 20, 1899, School District No. 35, townships 61 and 62, of ranges 37 and 38, in Holt county, Mo., filed its petition in regular form, with the clerk of the Holt county circuit court, to have condemned a certain tract of land, containing one acre, the property of the appellant herein, for a schoolhouse site, and in said petition the court was asked to appoint three disinterested freeholders, as commissioners to assess the damages which the defendant may sustain in consequence of the taking of the land described, and its appropriation for school purposes.

Appellant herein was duly notified of the filing and presentation of said petition and application, and on July 6th of that year, in obedience to said notice and summons, appeared before the Hon. Gallatin Craig, judge of said Holt County Circuit Court, in vacation, and at said time filed with the judge an affidavit denying the corporate existence of the plaintiff, School District No. 35. After hearing the testimony offered as to the corporate existence of the plaintiff school district, the court found in favor of plaintiff, and on the same day made an order appointing three commissioners, as prayed for in plaintiff's petition, to assess the damages which the defendant Noble Hodgin (appellant herein) may sustain by reason of the appropriation of his land for the purpose of a schoolhouse site for the plaintiff school district.

In due time, the commissioners so appointed made and filed with the clerk of said court their report, in which defendant's damages were assessed at $ 250. To this report the appellant filed as his exceptions, the following, omitting caption:

"Now, this 28th day of July, 1899, comes Noble Hodgin, defendant in the above cause, by his attorney, and for his exceptions to the proceedings had and done in said cause, and to the report of the commissioners therein filed, says: That plaintiff has no right or authority in law to condemn land for the purposes set out in its petition, or for any purpose, and that all the proceedings had and done upon and in response to its petition herein, are without authority of law, and are wholly void and of no effect. That plaintiff is not a corporation organized or existing under and by virtue of the laws of the State of Missouri. That the order of the judge appointing commissioners to assess the damages herein, does not recite facts authorizing the said commissioners to make such assessment, or to take any action whatever in the premises."

To this paper the plaintiff filed a general denial of each and every allegation therein made, and prayed for the confirmation of the commissioner's report, and the recovery of its costs. At the hearing before the court upon the issues as therein made by the pleadings, the plaintiff's counsel, to meet the challenge of appellant denying its corporate existence, undertook to show in detail every step that had been taken with a view to the formation and creation of said School District No. 35, beginning with the presentation and filing of the petition with the several clerks of the old districts to be affected by the formation of the new, asking that the proposition to form the plaintiff district be submitted, and following in regular order each succeeding step taken to the close, when the school commissioner of Holt county, to whom the matter had been referred on appeal, had decided that a new district be formed as asked in the original petition to be known as School District No. 35, etc. Plaintiff then offered in evidence notice of the meeting and the minutes of the proceedings showing the organization of said new District No. 35; also notice for and the minutes of the meeting called for the purpose of considering and selecting a schoolhouse site in said District No. 35. The testimony offered by plaintiff to establish these non-essential facts have alone been preserved in the bill of exceptions filed by appellant herein. No other facts whatever have been preserved or presented for our consideration.

At this hearing, the court, on November 10, 1899, made and entered its finding and judgment as follows:

"Now at this time, on the -- day of November, A. D. 1899, it being the -- day of the said August adjourned term of said court the said cause coming on for further hearing and disposition, and all and singular the matters being seen and heard by the court upon the pleadings and proofs of the parties plaintiff and defendant adduced, as well as upon the report of the commissioners hereinbefore...