State ex rel. Cainsville Reorganized School Dist. No. 1 of Harrison County v. Tomes

• Decision Date: 04 February 1957
• Docket Number: No. 22527,R-5,22527
• Citation: 299 S.W.2d 892
• Parties: STATE ex rel. CAINSVILLE REORGANIZED SCHOOL DISTRICT NO. 1 OF HARRISON COUNTY, Relator, Respondent, v. Rudolph TOMES, Respondent, Appellant, Reorganized School Districtof Mercer County (Respondent-Intervenor), Appellant. . Missouri
• Court: Missouri Court of Appeals

Page 892

299 S.W.2d 892

STATE ex rel. CAINSVILLE REORGANIZED SCHOOL DISTRICT NO. 1 OF HARRISON COUNTY, Relator, Respondent, v. Rudolph TOMES, Respondent, Appellant Reorganized School District R-5 of Mercer County (Respondent-Intervenor), Appellant.

No. 22527.

Kansas City Court of Appeals. Missouri.

Feb. 4, 1957.

Roscoe E. Moulthrop, Bethany, for relator Cainsville Reorganized School Dist. Mo. 1. of Harrison County.

J. Morgan Donelson, A.B. Walker, Princeton, for respondents.

BROADDUS, Judge.

This is a proceeding in mandamus. The case originated with the filing by relator, Cainsville Reorganized School District No. 1 of Harrison County, on March 11, 1955, of a petition asking for an alternative writ of mandamus against Rudolph Tomes, trustee of Harrison Township in Mercer County and Treasurer of the Cain Common School District of Mercer County. An alternative writ issued directed to respondent Tomes. Later an amended alternative writ directed to him was issued.

On February 2, 1956, respondent Tomes filed his amended return to the amended alternative writ of mandamus, and also, at that time, filed a motion for an order making the Reorganized School District R-5 of Mercer County, a party to said cause; and at the same time the Reorganized School District R-5 of Mercer County filed a motion to be made a party to the suit. The Reorganized School District R-5 of Mercer County was made a party and filed a further return on behalf of said District.

On the 13th day of February, 1956, respondents renewed their motion for judgment on the pleadings which was overruled by the court.

The amended writ was issued for the purpose of compelling the respondent Tomes, in his capacity as trustee of Harrison Township, in Mercer County, to pay over certain money that he held and which had belonged to the Cain Common School District No. 48 of Mercer County, to the relator on the ground that the old Cain Common School District No. 48 of Mercer County had annexed by process of law to the relator district.

During the year 1954 the Cain School District No. 48 of Mercer County, was a common school district, with a Board of Directors consisting of Victor Butler, Leonard Booth and Charles E. Graham, the wife of Board member Victor Butler, Ione Butler, being the Clerk of the Board.

Within a few days, "two or three days" after the 21st day of September, 1954, Charles E. Graham, a member of the Board of Directors of the old Cain School District circulated a petition which prayed for a special election to determine whether the Cain Common School District would annex to the Cainsville Reorganized School District. This petition was filed with the Cain School District Board of Directors on the 15th day of January, 1955. On the 4th day of February, 1955, the Board of Directors of the Cain School District directed that notices be posted calling a special school meeting to be held in said district on the 21st day of February, 1955, for the following purpose: "To vote on annexation of the Cain School District No. 48, Mercer County, State of Missouri, and Harrison Township, to the Cainsville Reorganized School District No. 1 of Harrison County, State of Missouri." The special school meeting was held pursuant to the notice on the 21st day of February, 1955, and a majority of the votes cast favored annexation to the Cainsville School District, seventeen votes having been cast favoring the annexation proposed and two votes having been cast against the annexation.

During this period of time a petition was initiated with the Superintendent of Schools of Mercer County, being filed with the County Superintendent of Schools on the 31st day of January, 1955, proposing to consolidate forty-two common school districts in Mercer County with the Princeton School District R-5 of Mercer County, and on the 31st day of January, 1955, the County Superintendent of Schools made an investigation and survey of the proposed Consolidated School District, determined the boundary lines of the proposed consolidated district and, among other areas included the territory comprising the Cain Common School and, as the members of the Cain Common School District had held the special meeting aforesaid on the 21st day of February, 1955, and voted to annex the Cainsville School District, the County Superintendent of Schools of Mercer County, notified the respondent, Tomes, not to pay over any of the money of the Cain Common School District to the Cainsville Reorganized School, but demanded that respondent, Tomes, pay over such funds to the Princeton District.

Claim was made upon Tomes in his capacity as Treasurer of the Cain Common School District to pay over to the Cainsville School District the funds on hand in his possession and belonging to the old Cain School District, but the respondent, Tomes, failed to pay over said funds, which were established by the trial court to be in the sum of $2,387.42.

Following a trial of the issues the court rendered judgment for the relator, Cainsville Reorganized School District, R-1 of Harrison County, and issued a peremptory writ of mandamus requiring the respondent Tomes to pay over the above sum to the relator. Tomes and intervenor appealed.

The first contention is that: "The court erred in overruling respondent's motion for judgment on the pleadings because respondent, Tomes, is a mere ministerial officer and cannot be compelled to decide whether relator or respondent intervenor school district is entitled to the money he holds." In other words, relator is not entitled to the remedy of mandamus.

It is conceded by all parties that Cain Common School District No. 48 instituted its proceeding to annex to relator, Cainsville Reorganized School District 1, under Section 165.300 V.A.M.S., which reads as follows:

"1. Whenever an entire school district, or a part of a district, whether in either case it be a common school district, or a city, town or consolidated school district, which adjoins any city, town, consolidated or village school district, including districts in cities of seventy-five thousand to five hundred thousand inhabitants, desires to be attached thereto for school purposes, upon the reception of a petition setting forth such fact and signed by ten qualified voters of such district, the board of directors thereof shall order a special meeting or special election for said purpose by giving notice as required by section 165.200; provided, however, that after the holding of any such special election, no other such special election shall be called within a period of two years thereafter.

"2. Should a majority of the votes cast favor such annexation, the secretary shall certify the fact, with a copy of the record, to the board of said district and to the board of said city, town or village school district; whereupon the board of such city, town or village district shall meet to consider the advisability of receiving such territory, and should a majority of all the members of said board favor such annexation, the boundary lines of such city or town school district shall from that date be changed so as to include said territory, and said board shall immediately notify the clerk of said district which has been annexed, in whole or in part, of its action.

"3. In case an entire district is thus annexed, all property and money on hand thereto belonging shall immediately pass into the possession of the board of said city or town school district; ***."

It stands admitted that respondent, Tomes, was the trustee of Harrison Township in Mercer County, and as such, was the Ex-officio Treasurer of the Cain School District, and had custody of the funds belonging to it.

The testimony of relator shows that about September 21, 1954, Mr. Graham, a member of the Board of the Cain School District, circulated the petition which prayed for an election to decide whether the Cain District would annex to relator district. Mr. Graham testified that he obtained all the signatures to the petition; that he was "two or three days getting these signers"; that he then "turned it (the petition) over to the Clerk", Mr. Butler. Mr. Graham further testified that the...