State ex rel. Buckley v. Thompson

• Decision Date: 05 July 1929
• Docket Number: 29534
• Citation: 19 S.W.2d 714,323 Mo. 248
• Parties: The State ex rel. John T. Buckley et al., Directors of Consolidated School District No. 10 of Pemiscot County, v. L. D. Thompson, State Auditor
• Court: Missouri Supreme Court

19 S.W.2d 714

323 Mo. 248

The State ex rel. John T. Buckley et al., Directors of Consolidated School District No. 10 of Pemiscot County, v. L. D. Thompson, State Auditor

No. 29534

Supreme Court of Missouri

July 5, 1929

Alternative writ quashed.

Bowersock Fizzell & Rhodes for relators.

(1) The change of boundary lines by Hayti Town School District No. 16 was legal. State ex rel. Consolidated School District v Thurman, 274 S.W. 800. (2) Even assuming that the change of boundary lines of Hayti Town School District No. 16 was illegal, such illegality does not affect the validity of Consolidated School District No. 10 thereafter organized, or the legality of the bonds of such consolidated district. (a) Consolidated School District No. 10 is a valid de jure school district. (b) Consolidated School District No. 10 is, in any event, a de facto school district the bonds of which are valid. State ex rel. Waddell v. Johnson, 316 Mo. 21, 296 S.W. 806; State ex rel. Otto v. School District of Lathrop, 314 Mo. 315, 284 S.W. 135. Bonds issued by a de facto school district are legal and enforceable. 1 McQuillin on Municipal Corporations (2 Ed.) sec. 175, p. 476; Abbott on Pub. Securities, sec. 266, p. 535; Franklin Ave. Savings Institute v. Bd. of Education, 75 Mo. 408; State ex rel. Waddell v. Johnson, 316 Mo. 21, 296 S.W. 807; Clapp v. Otoe County, 104 F. 473; Natl. Life Ins. Co. v. Bd. of Education, 62 F. 778; Riley v. Garfield Township, 58 Kan. 299; City of Uvalde v. Spier, 91 F. 594; Shapleigh v. San Angelo, 167 U.S. 646, 17 S.C. 957.

Stratton Shartel, Attorney-General, Don Purteet, Assistant Attorney-General, and J. K. Roach, for respondent.

(1) The alleged change in boundary lines of the town school district of Hayti constituted an attempt to divide said town district so as to form two new districts, and was unauthorized and void. State ex inf. Conkling v. Sweaney, 270 Mo. 685, 195 S.W. 714; State ex inf. Mueller v. Fry, 300 Mo. 541, 254 S.W. 1084; State ex inf. Pulley v. Scott, 307 Mo. 250, 270 S.W. 382; State ex inf. Mansur v. McKown, 315 Mo. 1336, 290 S.W. 123; Farber Consol. School Dist. v. Vandalia School Dist., 280 S.W. 72; State ex rel. Consol. School Dist. v. Ingram, 2 S.W.2d 114. (2) Since the alleged change in boundary lines of the town school district of Hayti was illegal and void, said town school district continued in existence, unaffected by the purported change, and said town school district could not, therefore, be included in alleged Consolidated School District No. 10, because said town school district had more than 500 pupils of school age. Sec. 11258, R. S. 1919, as amended, Laws 1925, p. 331. (3) The organization of Consolidated School District No. 10 constituted an attempt to incorporate in a consolidated school district a town school district having more than 500 children of school age, and said consolidated district is therefore illegal and void.

Atwood, J. Frank, Ragland, Walker and Gantt, JJ., concur; White, C. J., dissents in separate opinion, in which Blair, J., concurs.

OPINION

ATWOOD

This case comes to the writer on reassignment. It is an original proceeding in mandamus brought by relators, the directors of Hayti Consolidated School District No. 10 of Pemiscot County, Missouri, against respondent, the State Auditor, to compel him to register and certify certain building bonds issued by said consolidated school district. Respondent waived issuance of the alternative writ and filed answer and return alleging that said bonds were illegal and void for reasons therein stated at length. Relators thereupon filed reply and motion for peremptory writ of mandamus, admitting "all of the allegations of fact contained in said answer and return," and requesting the issuance of a peremptory writ of mandamus as prayed for in the petition "for the reason that the answer and return of the respondent herein shows no good and sufficient reason why said peremptory writ should not be awarded." We therefore look to the facts well pleaded in the petition and answer for the facts of the case.

From the allegations of relators' petition we gather that they are the duly elected, qualified and acting directors of Hayti Consolidated School District No. 10 of Pemiscot County, Missouri; that said district is a consolidated school district duly and legally organized and existing under the laws of the State of Missouri applicable to consolidated school districts; that on March 12, 1928, relators, constituting the board of education of said consolidated school district, met in regular session and adopted a resolution calling a special election in said district to be held on April 3, 1928, for the purpose of submitting to the qualified voters of said district a proposition to authorize the issuance of its bonds in the sum of $ 65,000 for the purpose of erecting a school house for high school purposes in said district and furnish the same, and a proposition to authorize the issuance of bonds for said district in the sum of $ 5,000 for the purpose of erecting a school house for negro children in said district and furnishing same; that notice of said election was duly given as provided by law by posting five copies of a notice thereof in five public places in said school district more than fifteen days prior to the date of said election; that said election was duly held in accordance with all of the provisions of the Constitution and laws of the State of Missouri applicable thereto; that at said election the board of education of said consolidated school district was authorized to issue its bonds for each of the purposes above named, the vote on the first proposition being 578 votes for the loan and 89 votes against the loan, and the vote on the second proposition being 590 votes for the loan and 71 votes against the loan; that on October 2, 1928, pursuant to authority conferred at said special election, relators, constituting the board of education of said consolidated school district, met in regular session and adopted a resolution providing for the issuance of a series of building bonds of said consolidated school district for the purposes aforesaid, said series aggregating the principal sum of $ 70,000 and consisting of seventy bonds numbered from one to seventy inclusive, each in the sum of $ 1,000, all of said bonds being dated August 1, 1928, becoming due serially without option for prior payment, bearing interest at rate of five per cent per annum, payable semi-annually on February 1st and August 1st of each year, the first interest coupon, however, becoming due on August 1, 1929, both principal and interest being payable at the office of the Commerce Trust Company in Kansas City, Missouri; that respondent L. D. Thompson is and has been for several years the duly elected, qualified and acting Auditor of the State of Missouri; that under and by virtue of the laws of the State of Missouri before the bonds of any school district shall obtain validity or be negotiated they shall be presented to the State Auditor who shall, if in the issuance thereof all of the conditions of the law have been complied with, register the same and certify by indorsement on each bond that all of the conditions of the laws have been complied with in the issuance of such bond, if such be the case, and that if the evidence of such facts has been filed and preserved by him; that relators duly presented to respondent the building bonds aforesaid, together with a duly authenticated transcript of the proceedings leading up to and authorizing the issuance of said bonds, and relators tendered to respondent the usual and customary fees due him upon the registration of said bonds; and that although demand was made upon respondent to register and certify said bonds as aforesaid he has wholly neglected and refused and now continues to neglect and refuse to register and certify the same, and that by reason of said wrongful refusal relators are wholly unable to consummate the sale of said bonds and to deliver the same and obtain the funds with which to build the school buildings hereinbefore mentioned.

The facts pleaded by respondent in support of his refusal so to do appear in the following part of his answer and return:

"Respondent states that prior to April 5, 1927, there existed in the incorporated municipality of Hayti, Pemiscot County Missouri, and the surrounding territory, comprising altogether approximately 10,080 acres of ground, a town school district having a board of directors or board of education consisting of six members, said town school district being the school district of Hayti, Missouri commonly known as Hayti School District No. 16 of Pemiscot County, Missouri; that said town school district contained more than 500 children of school age according to the last enumeration, and that by reason of said fact said town school district was prohibited by the laws of the State of Missouri (and in particular by Section 11258, Revised Statutes of Missouri 1919, as amended, Laws of Missouri 1925, page 331) from joining in the organization of a consolidated school district and thereby obtaining the special state aid and other benefits accruing solely to consolidated school districts; that well knowing such fact and for the sole purpose of avoiding the provisions of the laws of the State, more than ten qualified voters residing in said Town School District of Hayti, Missouri, petitioned the board of directors of said town school district for a change in the boundary lines of said town school district in that certain territory described in said petition, containing approximately 6080 acres of ground and more than twenty children of school age, be detached from said town school district, and said voters further petitioned that said proposed change...