State ex rel. Gehrig v. Medley
| Decision Date | 20 May 1930 |
| Docket Number | 4749 |
| Citation | 28 S.W.2d 1040 |
| Parties | State of Missouri, ex rel, W. A. Gehrig, E. J. Walker, O. L. McFarland, Will Lightfoot, Joe Wooddall and R. F. Price, Relators. Respondents. v. T. A. Medley, Clarence Bradshaw, Chester Gregson, N. M. Jones, G. H. Hall, and W. P. Henry, Directors of Consolidated School District No. 7C, Respondents. Appellants |
| Court | Missouri Court of Appeals |
Appeal from the Dunklin County Circuit Court. Hon. W. S. C. Walker Judge.
Reversed.
Orville Zimmerman, of Kennett, for Appellants.
James V. Billings, of Kennett, for Respondents.
Reversed:
This is a mandamus proceeding to compel the directors of a Consolidated School District to erect and equip a school building. An alternative writ was issued, on plaintiffs petition, and two separate returns filed, one by respondents, G. H. Hall, W. P. Henry and N. M. Jones, and the other by respondents, T. A. Medley, Clarence Bradshaw and Chester Gregson. A motion for judgment upon the pleadings was filed and sustained and the trial court thereupon, by its judgment and decree, made the writ of mandamus permanent. The respondents, Hall, Henry and Jones, have appealed to this court.
In their assignment of errors, appellants charge that the trial court erred in refusing appellants request to introduce testimony in opposition to the allegations of Relators petition and that the court erred in sustaining relators motion for judgment on the pleadings. These assignments are, in effect, the same and will be considered together.
The petition states that the six respondents constitute the School Board of Consolidated School District No. 7C; that the relators are resident tax-paying citizens; that said school district contains 612 children of school age and owns three and one-half acres of land in the City of Campbell, and a suitable site for a grade and high school building, upon which, until December 1928, it had maintained a brick building as a grade and high school for the education of the children living in said district; that said building was destroyed by fire in December, 1928, and that the children of said district are without a school building wherein they may obtain education as provided by law; that on December 4th, 1928, the school board ordered a special election to vote upon a proposition to issue $ 45,000.00 in bonds "for the erection of a school building and equipping, the same;" that on December 20th, after due notice, an election was held as ordered, which resulted in a vote of approval of said bond issue; that thereafter the school board issued, registered and sold the authorized bonds in the sum of $ 45,000.00, and that the school district has the proceeds of said bonds at this time; that the school district received $ 30,000.00 insurance on said building so destroyed by fire and now has $ 75,000.00 available for the erection of a necessary grade and high school building.
It is further alleged that respondents are under a duty under the laws of this State to provide a school building, site, grounds and teachers' fund for an eight months school; that the district has ample funds for hiring teachers and maintaining an eight months school for the current year 1929-1930; that respondents have wholly failed to provide said building as is required by law; that the erection of said school building is an immediate necessity, and that respondents are under a strict legal duty to forth-with provide and equip such building and maintain the necessary eight months grade and high school as provided by law. An alternative writ of mandamus was prayed to compel respondents to erect and equip said school building.
The alternative writ, based on this petition, was duly issued. By their answer, respondents, G. H. Hall, W. P. Henry and N. M, Jones, appellants here, admit that (1) the six respondents compose the Board of Education of said School District, but deny they have refused to procure plans and specifications for the erection of a school building. (2). They further admit that said School District owns 3 1/2 acres of land in the South East corner of the City of Campbell, in said District, but aver that this land is not sufficient to erect a school building for said district to carry on the work necessary to be done in order to have said school approved by the State Department of Education; that the minimum acreage which the State Department approves is Five (5) acres and that the additional acreage cannot be purchased and made available for the use of said district because of the location of the streets and procuring of titles to adjacent lands; that under the laws of the State, applicable to said district, the State will furnish Two Thousand Dollars ($ 2000.00) for the purchase of a necessary site provided the necessary acreage is procured, and for this reason these respondents urged the building of said school building on a new location where adequate land, could be purchased which would meet the requirements of the State; that this proposal met with objections from the other members of the Board of Education and that they have never been able to reach an agreement as to a proper and suitable site; that they have already procured plans for the erection of a building and that the letting of a contract for the erection of same has been delayed solely because the members of the Board have been unable to agree on a suitable location. (3). Respondents further state that the other members of the Board refused to adopt a site selected by the State Superintendent of Schools. (4). It is further alleged that after said school building burned in November, 1928, the Board furnished adequate facilities to carry on the school work and have procured the same facilities to carry on the same work for the years 1929 and. 1930. (5). Respondents further state that they cannot erect a school building on the old site and meet the requirements of the State Department of Education and that unless they procure a site that will be acceptable to the State Department of Education, they will lose State aid to the amount of Two Thousand Dollars ($ 2000.00). (6). It is further alleged that the location of the old building was in a very inaccessible part of said city and was inconvenient to a majority of the children of said district. (7). It is further alleged that by a resolution in writing the other members of the Board agreed to abide by the recommendations of the State Superintendent of Schools and these respondents allege that they are willing to abide by the site recommended by said Superintendent. (8). Respondents allege that said petition in this cause is insufficient in law and equity to entitle plaintiffs for the relief asked.
The respondents Medley, Bradshaw and Gregson, filed a separate return and answer to plaintiffs petition, which is of great length, setting forth in detail their reasons accounting for failure to erect a new school building and praying that the alternative writ be sustained. For the purposes of this opinion, it is unnecessary to refer any further to the separate answer of the last named respondents, who of course, have not participated in this appeal.
After the filing of respondents return to the writ, a motion was filed for judgment on the pleadings, which motion came on for hearing July 1st, 1929, and was duly sustained. The request of respondents, Hall, Henry and Jones to hear testimony upon the issues tendered by the separate return was, of course, refused. The Court thereupon adjudged that the alternative writ of mandamus be made final and absolute and that a writ of peremptory mandamus be issued to said Board of Education commanding them to erect and equip a School building for the instruction and training of the school children of said District in the grades and high school subjects and courses of study prescribed, in said school district for the year 1929 and 1930, as required by law etc.," Respondents, Hall, Henry and Jones filed a separate motion for new trial, which being overruled, resulted in this appeal. For convenience the respondents on this appeal will hereinafter be referred to as relators and the respondents below will be referred to as appellants.
We have here purely a question of law since relator's motion for judgment on the pleadings admitted all facts well pleaded in Appellants return to the writ of mandamus.
State ex rel vs Thompson 316 Mo. 272, 289 S.W. 338.
It is first urged in appellants brief that their return tendered an issue of fact which had to be...
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