School District No. 42, Audrain County, Missouri v. School District No. 45, Audrain County, Missouri

• Decision Date: 02 October 1923
• Citation: 254 S.W. 726,212 Mo.App. 670
• Parties: SCHOOL DISTRICT NO. 42, Audrain County, Missouri, Appellant, v. SCHOOL DISTRICT NO. 45, Audrain County, Missouri, Respondent
• Court: Missouri Court of Appeals

254 S.W. 726

212 Mo.App. 670

SCHOOL DISTRICT NO. 42, Audrain County, Missouri, Appellant, v. SCHOOL DISTRICT NO. 45, Audrain County, Missouri, Respondent

Court of Appeals of Missouri, St. Louis

October 2, 1923

Appeal from the Circuit Court of Audrain County.--Hon. Ernest S Gantt, Judge.

AFFIRMED.

Judgment affirmed.

Fry & Fry for appellant.

(1) Plaintiff's motion to strike the answer from the files should have been sustained. If the taxpayers, who filed this answer, desired to contest this action, they should have proceeded under the Statute, and, by order of the court, made themselves parties defendant. While they may have been interested as taxpayers, the action was not instituted against them; they were not made parties; and, without an order of court, they were interlopers and had no right to file an answer, for the defendant School District. Secs. 1274 and 1275, R. S. 1919; McLaughlin v. McLaughlin Admr., 16 Mo. 242; Young v. Glascock, 79 Mo 574; Courtney v. Sheeley, 38 Mo.App. 290; Merrill v. City of St. Louis, 83 Mo. 244; State ex rel. v. Fleming, 158 Mo. 558. This is a suit against stockholders on an amended petition. The officers and the corporation are two different persons. Thompson v Allen, 86 Mo. 85; Hall v. School District, 36 Mo.App. 21. (2) A valid election in each of the two districts is the necessary prerequisite to give the County School Commissioner jurisdiction to proceed to form his board of arbitration to consider and determine the necessity of the proposed change. School Dist. No. 4 v. Smith, 90 Mo.App. 215. (3) The petition alleged that territory attempted to be detached was not inhabited by any child of school age, and the evidence before the Board of Arbitration showed that fact and it was not disputed. That being the fact the board was without statutory authority to make the change. Sec. 1201, R. S. 1919; School District No. 14 v. School District No. 27, 195 Mo.App. 504; Dist. No. 14 v. Sims, 193 Mo.App. 481; State ex rel. Martin v. Buckner, 54 Mo.App. 452. (4) A change of boundary adding only uninhabited territory is in violation of Sec. 11201, R. S. 1919, and said section precludes a district from adding territory from other district simply for revenue to be derived. School Dist. No. 14 v. School Dist. No. 27; 195 Mo.App. 504; School Dist. No. 35 v. School Dist. No. 32, 235 S.W. 470. (5) If the Board of Arbitrators had jurisdiction to determine the controversy between the two school districts as to a change of the boundary line, yet where the facts show that the territory sought to be detached from District 42 and attached to District 45 had no child of school age residing on said territory, its judgment was void for want of jurisdiction. State ex rel. v. Spencer, 164 Mo. 48; State ex rel. v. Spencer, 166 Mo. 279; Carter v. Bolster, 122 Mo.App. 143. (6) The residence of children of school age is a condition precedent to acquisition of territory from one district to another. This being the case, the board had no authority to take our territory in which no children of school age resided, and attach it to theirs. This was a fraud in law. Especially is this so in view of the fact that the court held in case of School District v. Sims, 193 Mo.App. 480, that a writ of prohibition would not lie to prevent this wrong. Consequently, the appellant seeks the aid of a court of chancery. The appellant has no remedy at law, consequently this bill, no appeal lies. Akerman v. Green, 201 Mo. 243; Morris v. Morris, 128 Mo.App. 673. (7) The designation in the notice of these School Districts as Macedonia and Pine Districts render the notices void. Sec. 11187, R. S. 1919, provides for renumbering of districts in each county and such districts are only numbered and exist as they are so numbered. Therefore, there are no such districts as Macedonia and Pine in Audrain county. In the case of Globe F. Co. v. District, 51 Mo.App. 549, the court held the contract invalid which did not correctly designate the district. Therefore, it is clear that the notice of the election must fully and clearly describe the school districts by their proper number.

Rodgers & Buffington for respondent.

BRUERE, C. Allen, P. J., and Becker and Daues, JJ., concur.

OPINION

BRUERE, C.

--This is a suit in equity, brought by School District No. 42 of Audrain county against School District No. 45 of said county, to set aside, cancel and annul the finding and decision of a board of arbitration changing the boundary line between said two districts. Upon trial of the issues in the case, judgment was rendered for the defendant and plaintiff prosecutes the appeal.

It appears that pursuant to the provisions of section 11201, Revised Statutes of Missouri, 1919, a petition was presented to the district clerk of each of said school districts, for the purpose of submitting to the voters of said districts a proposition to change the boundary line between these two districts, so that seventy-five acres of territory, situated within district No. 42 and on which Messrs. Herndon and Oestreich lived with their families, would be attached to district No. 45. That thereupon the clerks of each of said districts posted the required notices in each district, as required by said statute, and at the annual school meetings in the two districts, a majority of the voters of district No. 42 voted against said proposition and a majority of the voters of district No. 45 voted in favor thereof. An appeal was filed, within the time prescribed in the statute, with the county superintendent of public schools and that officer, in accordance with the statute, appointed four disinterested men, resident taxpayers of Audrain county, to constitute together with himself a board of arbitration to consider the necessity for such proposed change and render a decision thereon. The board of arbitration found that there was a good cause and a necessity for a change in the boundary sought, and ordered a change of boundary lines to be made in accordance therewith.

The petition states that the order and judgment of said board of arbitration is fraudulent and void and that said board was without jurisdiction to make the same. The grounds assigned therein, and urged here, for setting aside the judgment of said board are as follows:

"The territory, described in the said petition signed by the ten taxpayers of said districts, did not have any children or a child in said territory of school age at the time of the signing of said petition or since said time, and said territory was not separated from the remainder of district 42 by any stream of running water and was not an island in any navigable stream in this State, which facts were well known to the said petitioners at the time of signing and presenting their said petition to the clerks of said school districts aforesaid. That the attempted change of boundary line does not and did not change any child of school age from district 42 to district No. 45 by reason of said changes; that said pretended change simply added to district No. 45 and took from district No. 42 the said territory merely for the acquisition of valuable territory by district No. 45 in violation of the Statutes of Missouri.

"That said order was void and said board without jurisdiction for the reason that said petition and notice did not definitely and clearly describe the land to be detached from district No. 42 and added to district No 45. They did not state and describe any certain tract of land to be detached or taken from district No. 42 and added to district No. 45. . . . They refer to such territory as said territory owned by Amil Oestreich and Phillip Herndon and now belonging in Macedonia school district 'No. ,' when there was no such district as 'Macedonia district 'No. .' The land ordered to be detached did not belong to said parties, but embraced twenty (20) acres belonging to Barnie Parrish. They did not describe and locate the existing boundary line between said district 42 and 45 and show the proposed change in the same. The petition and notice give but three sides of a tract of land, do not locate the county and State where located and do not state what change is asked for."

The evidence showed that only one child resided in the territory that was detached from district No. 42 and attached to district No. 45. This child, at the time of the transfer, was between two and three years old and was the adopted child of Mr. Herndon. The evidence further showed that Mr. Oestreich intended adopting a child that was or would be ready to go to school at the time in question; that a large stream of water, known as Saling creek, ran in a southwesterly direction through the seventy-five acres involved in this suit, and west of the homes of said Herndon and Oestreich; that said stream at frequent intervals became...