State ex rel. First National Bank v. Bourne
Citation | 131 S.W. 896,151 Mo.App. 104 |
Parties | STATE OF MISSOURI ex rel., FIRST NATIONAL BANK, Respondent, v. E. A. BOURNE et al., Appellants |
Decision Date | 10 November 1910 |
Court | Missouri Court of Appeals |
[Copyrighted Material Omitted]
Appeal from Jasper Circuit Court.--Hon. David E. Blair, Judge.
AFFIRMED.
STATEMENT.--This suit grew out of the letting of the school funds of the Carterville School District to the Miners Bank of Carterville. The relator, the First National Bank, filed a petition for an alternative writ of mandamus in the circuit court of Jasper county, in which it complained that the school funds were advertised to be let to the best and highest bidder, and that at such letting it submitted its bid which was the highest, and that the same was not accepted but that the funds were let to the appellant, the Miners Bank of Carterville, which was the lowest bidder, and that the failure of the school board to accept said bid was prompted by improper motives, and that the acceptance of the other bid was the result of fraud, corruption and favoritism. Six of the defendants were members of the school board. The other defendant, the Miners Bank, was the successful bidder. The acceptance of the lowest bid by the majority of the school board is admitted by the defendants. Two of the defendants members of the school board, were in favor of awarding the depositary to the relator and appeared in the suit and asked that the remedy prayed for by the relator be granted. The majority of the members of the school board entered a plea of confession and avoidance in which they stated that they accepted the lowest bid, and that they honestly, fairly and without favoritism awarded the funds to the Miners Bank of Carterville and that such awarding was within the discretion of the majority of said board; that they had the right to make such award of said funds, taking into consideration their personal knowledge of the conditions and surroundings and the safety of the funds and the convenience of transacting the business made necessary by creating the depositary; that their action was in good faith and with the honest purpose of doing their duty and was for the best interests of the school district and taxpayers generally.
At the conclusion of the trial, the court found the issues for the relator and entered judgment in its favor, the substance of the judgment being: That the relator, the First National Bank of Carterville, in good faith filed its bid, together with a certified check for two hundred dollars, with the president of the board of education as required by the advertisement and the relator offered to pay on daily balances for the school funds of said district 4.76 per cent interest; and further that the relator was ready and willing to furnish a bond to secure said deposit as required by law. "The court further finds that the Miners Bank of Carterville, one of the defendants herein, also filed with the said president, in due time, according to the terms of said advertisement, its certified check and bid, agreeing to pay 3.50 per cent on the daily balances of the school fund, to the treasurer of said school district. The court further finds from the evidence that each of said institutions bidding for said funds is a reliable institution, each capable of making a bond, and one as convenient as the other for the transaction of business, and the court doth further find that the majority of the members of said board of education, to-wit: W. A. Dumbauld, J. C. Sanders, W. M. Jarred and Charles Earle, intentionally, wrongfully, in bad faith and without any excuse or justification in law or in fact, made said award and election of depositary to the Miners Bank of Carterville, and by so doing, their act constituted a fraud on the relator, First National Bank of Carterville, and on the citizens of Carterville school district.
"The court doth further find that the relator, by reason of the bad faith and illegal action on the part of the board of education, is entitled to the relief prayed, and that the act of the board of education in selecting a depositary as aforesaid is without authority of law, and is fraudulent, and that the contract entered into by the defendant, Miners Bank, with the said board of education is, under the law and the facts in this case, a fraud on the relator herein and the taxpayers of said school district." It was further ordered in said judgment that the order of the school board awarding and designating the Miners Bank as depositary be set aside and held for naught; that the board of education of the school district of Carterville select and designate the First National Bank of Carterville as the depositary for the school funds, in pursuance of its bid to pay 4.76 per cent on the daily balances on all money belonging to the said district, and that it accept from the said First National Bank of Carterville and approve a good and sufficient bond in the amount required by said board for the faithful performance of its duties as depositary for said school district, with proper conditions, and that upon compliance with the judgment herein, the funds of said district be immediately paid over and deposited in the First National Bank of Carterville as the depositary for the funds of said district. It was further ordered that the defendant, the Miners Bank of Carterville, transfer said funds in its possession to the treasurer of said school district, or, upon the order of the board of education of the said district, to the said First National Bank immediately after the execution and approval of said bond. And it was further ordered by the court that a peremptory writ of mandamus issue herein to carry out and enforce the orders and decrees of the court, that the costs of the proceeding be taxed against the defendants and that execution issue."
Subsequently, a motion for a new trial being filed and overruled, an appeal from the judgment was perfected by the defendants.
The alternative writ of mandamus is as follows:
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