State ex rel. Kugler v. Tillatson

• Decision Date: 02 July 1957
• Docket Number: No. 29864,No. 3,3,29864
• Citation: 304 S.W.2d 485
• Parties: The STATE of Missouri, ex rel. A. V. KUGLER, Estalene Kugler, S. Lunsford, Frances Lunsford, Carl Mohr, Louise Mohr, J. H. B. Mohr, Virgil Mohr, Rudolph Deitrich, Della Deitrich, Price Doctorman and Florence Doctorman, Relators-Respondents, v. W. M. TILLATSON, W. E. Shannon, John Adams, Maenard Egbert, Weldon Tague and Hubert Deitrich, as Members of the Board of Education of Reorganized School Districtof Scotland County, Missouri, Respondents-Appellants.
• Court: Missouri Court of Appeals

Page 485

304 S.W.2d 485

The STATE of Missouri, ex rel. A. V. KUGLER, Estalene

Kugler, S. Lunsford, Frances Lunsford, Carl Mohr, Louise

Mohr, J. H. B. Mohr, Virgil Mohr, Rudolph Deitrich, Della

Deitrich, Price Doctorman and Florence Doctorman, Relators-Respondents, v. W. M. TILLATSON, W. E. Shannon, John Adams, Maenard Egbert, Weldon Tague and Hubert Deitrich, as Members of the Board of

Education of Reorganized School District No. 3 of Scotland

County, Missouri, Respondents-Appellants.

No. 29864.

St. Louis Court of Appeals, Missouri.

July 2, 1957.

Motion for Rehearing or to Transfer to Supreme Court

Denied Aug. 28, 1957.

Jayne & Jayne, Kirksville, for appellants.

L. F. Cottey, Lancaster, J. B. Smoot, Memphis, for respondents.

WOLFE, Commissioner.

This is an action in mandamus brought to compel the directors of the Reorganized School District No. 3 of Scotland County to submit at the annual school election a proposition to change the boundaries of the district. The trial resulted in the court ordering the directors to submit such proposition at the annual election and the directors appealed. The appeal was taken to the Supreme Court and that court, finding it was without jurisdiction, transferred the cause to this court.

The relators all live in an area of about one and one half square miles located in Reorganized School District No. 3 of Scotland County, Missouri. This area borders on the Wyaconda School District of Clark County, which directly adjoins the Scotland County district. In the area there are 7 children of school age. The Scotland County district contains about 50 square miles and has an approximate population of 165 school age children. The relators desire to have the place in which they live removed from the Scotland County district and embraced within the Clark County district. To this end they petitioned both districts to submit a change in boundaries which, if favorably voted upon, would have removed the territory in which they live, from Reorganized School District No. 3 of Scotland County and would have placed it in the Wyaconda district of Clark County.

The Wyaconda district submitted the proposal to a vote but the directors of the Scotland County district refused to submit the proposition and the relators sought the writ here in question. In their return to the order to show cause as directed by the alternative writ that was issued, the directors stated that the petition for the election was not sufficient in form or substance and that it lacked the required number of signatures.

The procedure for a change of boundary in 'six director' school districts, which is the class of district here involved, is set forth in Section 165.294 RSMo 1949, V.A.M.S. This provides in part that an election on the proposed change shall be had upon the petition of ten qualified voters and taxpayers of the area proposed to be changed.

There appears to be no dispute as to the facts of the case. The petition filed with the clerk of Reorganized School District No. 3 of Scotland County was addressed to the clerk of the board and it requested a vote on the change in the Wyaconda School District, but it properly described the lands to be taken from Reorganized School District No. 3 by the proposed change. There were twelve names affixed to the petition. Nine of these were the signatures of taxpayers and residents of the district. The other three whose names appeared upon it had not signed the petition themselves but had directed that their wives sign it for them.

The petition was served upon W. E. Shannon, the clerk of the board, on March 8, 1956. After receipt of the petition Shannon had prepared the printed notices which stated that a proposition to change the boundary of Reorganized School District No. 3 would be submitted to the voters at the annual school election on April 3, 1956. This was on one half of a card designed for posting and the other half gave notice of the regular school election. These notices were posted on March 17. A like notice was published on March 15 in a weekly newspaper. On March 19 there was a meeting of the board and by motion it disapproved the action of the clerk because of the insufficiency of the petition. Shannon testified that at the time of the meeting he determined that three of the signatures on the petition were not genuine. The motion passed by the board directed that all notices of an election on the proposition be recalled. This was done by withdrawing from further publication the notice in the newspaper and by painting out that portion of the posters that related to the change in the boundary. Relators then brought this action in mandamus and on the facts as stated the court on March 30, 1956, directed the board to submit the proposition of a change of boundary to the voters in the district on April 3,...