State ex rel. Heppe v. Zilafro
| Decision Date | 28 April 1948 |
| Docket Number | 6765 |
| Citation | 210 S.W.2d 719 |
| Parties | STATE ex rel. HEPPE v. ZILAFRO et al |
| Court | Missouri Court of Appeals |
'Not to be published in State Reports'.
J. M Haw and James Haw, both of Charleston, for appellants.
John Fletcher, of East Prairie, and W. Clifton, Banta, of Charleston, for respondents.
BLAIR
This is a mandamus suit. The case was originally sent on appeal to the Supreme, Court of Missouri, on account of the supposed presence in the record of a constitutional question. That Court has held that there was no constitutional question in the case and has transferred it to this Court. State ex rel., etc. v. Zilafro et al., etc., Mo.Sup., 206 S.W.2d 496 ().
The Supreme Court having settled the question of constitutionality, there is no need for us, if we could, to refer to the question again, and that question will henceforth be treated by us as settled; but there still remain several questions for our consideration.
It was admitted in the record that the appellants Alex Zilafro, John Hale and J. B. Simkins (defendants below) were the directors of Hurricane School District No. 35 of Mississippi County Missouri, and that relator (respondent here) filed with said directors a petition, signed by more than ten qualified voters of such Hurricane School District, as follows:
'We, the undersigned qualified voters of the Hurricane School District No. 35 of Mississippi County, Missouri, hereby petition the board of directors of the Hurricane School District No. 35 to call a special meeting for the purpose of voting upon the proposition to annex or attach the Hurricane School District No. 35 to the East Prairie Consolidated School District No. 5 in accordance with Section 10484 [Mo.R.S.A.], (R.S. 1929, 9342).'
To that petition were attached the names of about thirty-four persons, admittedly residents of Section 36, Township 25, Range 15, of Mississippi County, Missouri. It was admitted that, at the time said petition was filed, such signers were residents of and qualified voters in said Hurricane School District No. 35.
Just how defendants could claim that such signers were not qualified voters of Hurricane School District No. 35, at the time the writ of mandamus was granted by the circuit court, was more or less of a mystery to us. However, we have concluded that a former election, upon a petition of relator and others, to release the land, upon which relator and the other signers lived, to the East Prairie Consolidated School District No. 5, caused defendants to contend that such signers were non-qualified voters of Hurricane School District No. 35, when the peremptory writ in this case was issued. If we are correct in this surmise, such persons would be residents of and qualified voters in Hurricane School District No. 35 until the land, upon which they lived, had been accepted by and taken into the East Prairie Consolidated School District No. 5. They did not move off of the land originally in Hurricane School District No. 35, and must be regarded as qualified voters in said School District at all times thereafter, unless and until that land was taken into the East Prairie Consolidated School District No. 5.
The petition of relator and others to the directors of the Hurricane School District No. 35, as set out above, was brought under Section 10484, R.S.Mo.1939, Mo.R.S.A. § 10484, Vol. 21, page 570. So much of that section, as is of interest here, reads as follows:
'Whenever an entire school district, or a part of a district adjoining any city, town or village school district, 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 for said purpose by giving notice as required by section 10418.'
There is no contention that the petition, under said Section 10484, was not filed with defendants; but defendants contend that said petition should have been filed under Section 10500.1, Mo.R.S.A., Vol. 21, page 600. The part thereof, which is of particular interest in this case, reads as follows:
It will be noted from such provisions of the law, that, when an established school district, such as was Hurricane School District No. 35, is sought to be attached to a school district, already established, a petition is only proper under Section 10484, R.S.1939, Mo.R.S.A., and that when two or more 'adjacent' school districts wish to be organized into a new consolidated school district, the county superintendent of schools, on petition of 15 qualified voters of each district, shall call an election for the purpose of perfecting such consolidation.
Section 10500.1 has no application when an election is called to determine whether or not an established school district wishes to be attached to an already established consolidated school district. The same may be said of Section 10487a, Laws of 1945, page 111 of Pocket parts to Mo.R.S.A., Vol. 21.
The petition was therefore properly drawn under Section 10484, R.S.1939, Mo.R.S.A., in this case, and the Circuit Judge correctly so held.
In Section II, of their brief, defendants say that the writ should not have been issued because the clerk of Hurricane School District No. 35 was not made a party to such writ.
Section 10428, R.S.1939, Mo.R.S.A., cited by defendants, only requires the clerk to post notices, when such notices are required by law to be posted by the district clerk, without an order from the board itself. There is nothing in Section 10484, R.S. 1939, Mo.R.S.A., requiring the clerk to post notices independently of an order of the board.
We also have examined State ex rel. v. St. Joseph, 237 Mo.App. 399, 169 S.W.2d 419, loc. cit. 420, and State ex rel. Kent v. Olenhouse, 324 Mo. 49, 23 S.W.2d 83, loc. cit. 86, cited by defendants. There is nothing in either case that is authority for the contention that the clerk of the school district is a necessary party defendant in an action under Section 10484, R.S.Mo.1939, Mo.R.S.A.
In Paragraph III of their brief, defendants contend that the petition of relator could not be acted upon by the board because another petition involving the same districts was pending before the board. It was admitted that, on April 30, 1946, the quarter section of land, on which relator and the other petitioners lived, was ordered released by Hurricane School District No. 35, to the East Prairie Consolidated School District No. 5, and it was further admitted that on May 5, 1946, such East Prairie Consolidated School District No. 5,...
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