State ex rel. Bates v. Hutchins

• Decision Date: 05 November 1891
• Citation: 50 N.W. 165,33 Neb. 335
• Parties: STATE, EX REL. C. O. BATES, v. JOHN HUTCHINS ET AL
• Court: Nebraska Supreme Court

50 N.W. 165

33 Neb. 335

STATE, EX REL. C. O. BATES, v. JOHN HUTCHINS ET AL

Supreme Court of Nebraska

November 5, 1891

ORIGINAL application for mandamus.

Writ DENIED.

J. H Haldeman, for relator, cited, contending that evidence aliunde as to the vote was not admissible: B. & M. R. Co v. Lancaster Co., 4 Neb. 307; Eddy v. Wilson, 43 Vt. 362; Sch. Dist. v. Atherton, 12 Met. [Mass.] 105; Morrison v. Lawrence, 98 Mass. 219; 1 Dillon, Mun. Corp., sec. 299; Mayhew v. Gay Head, 13 Allen [Mass.], 129; Boston T. Co. v. Pomfret, 20 Conn. 590; Gilbert v. New Haven, 40 Id., 102; Hoag v. Durfey, Aikens [Vt.], 286; Cooley, Tax. [2d Ed.], 317.

H. D. Travis, for respondents.

Wooley & Gibson, for intervenor.

OPINION

MAXWELL, J.

This is an application for a peremptory writ of mandamus "to compel the school district board of school district 72, of Cass county, immediately to build and erect on the old school house site, a frame school house on a piece or parcel of land consisting of about one acre, one-half of which is the northeast corner of the northwest quarter and the other half the northwest corner of the northeast quarter of section 17, township 10, of range 12, in Cass county," etc.

The school board filed an answer in which they explain the causes of delay.

One William Westlake filed a petition to intervene in the case, and as he showed a prima facie right in his petition the prayer was granted.

The case was then referred to a referee to take testimony and find the facts. His report is as follows:

"First--That the relator, Charles O. Bates, is a citizen, legal voter, and taxpayer in school district No. 72, in Cass county, Nebraska and that he has children of school age living with him in said school district.

"Second--That school district No. 72 is legally organized under the laws of Nebraska.

"Third--That there is now no school house in said school district.

"Fourth--That there are about sixty children of school age in said school district.

"Fifth--That the respondent John Hutchins is the treasurer, the respondent W. O. Ogden is the director, and the respondent Sullivan Hutchins is the moderator of said school district, and that, collectively, the respondents constitute the school board of said district.

"Sixth--That the intervenor, William Westlake, is a resident and taxpayer of said school district.

"7th--That there now is, and ever since prior to June 1, 1890, has been, in the county treasury of Cass county, to the credit of said school district, as a building fund, the sum of about $ 780.

"Eighth--That at the annual school meeting, in said school district, in June, 1890, the electors of said school district authorized the board of directors to build a new school house on the old site, 24x26 feet, with 12 foot posts, directing said board of directors to finish said school house in workmanlike manner, to put a good, substantial stone foundation under said new school house, and to paint the house, but that said electors did not specify the quality of material to be used in said building, except the foundation, and did not specify how much money should be expended in building said school house, nor did the said electors appropriate any money for the purpose of such building. That at said meeting the electors of said district authorized the board to sell the old school house at auction, which has been done, and also voted that eight months' school should be taught in said district the ensuing year.

"Ninth--That on the 11th day of July, 1890, the intervenor herein applied to the Hon. S. M. Chapman, judge of the district court of Cass county, for an injunction restraining the respondents herein from expending any of the funds of said school district, or from creating any debt for the purpose of erecting a school house in said district, until authorized thereunto as provided by law. Said judge granted a temporary restraining order as prayed, but the proof fails to show that the same, or any injunction in said cause, is now in force.

"Tenth--That at a special meeting held in said school district on the 7th day of August, 1890, called for the purpose of voting upon the appropriation and expenditure of money of said district for the purpose of building a school house in said district, the board of directors were, by a majority vote of the electors present and voting, directed not to expend any money for the purpose of building a new school house on the old site, and a majority of the electors of said district present and voting refused to appropriate any money of said school district for the purpose of building a school house on the old site.

"Eleventh--That at a special meeting held in said school district on the 3d day of September, 1890, for the purpose of voting upon a proposition as to how much money should be expended by said district for the purpose of building a school house, the following proceedings were had One ballot was taken by said electors on said proposition, but upon discovering that two ballots, folded together as...