State ex rel. Kugler v. Tillatson

• Decision Date: 14 April 1958
• Docket Number: No. 3,No. 46558,3,46558
• Citation: 312 S.W.2d 753
• Parties: 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, 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, Appellants.
• Court: Missouri Supreme Court

Page 753

312 S.W.2d 753

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, 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, Appellants.

No. 46558.

Supreme Court of Missouri, En Banc.

April 14, 1958.

Rehearing Denied and Opinion Modified May 12, 1958.

Jayne & Jayne, Kirksville, for appellants.

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

EAGER, Judge.

The appeal in this case was originally taken to this court, but the cause was transferred to the St. Louis Court of Appeals for lack of jurisdiction. 300 S.W.2d 517. The opinion of the Court of Appeals appears at 304 S.W.2d 485. Thereafter this court ordered the cause transferred, and it is now here as upon an original appeal.

The proceeding is one in mandamus to compel the directors of a reorganized school district to entertain relators' petition for a change of boundaries and for the detaching of certain described land from that district, and for the submission of the proposition to the voters of the district under Sec. 165.294 (Laws 1955, p. 528, 1957 Cum.Supp.; all other statutory references will be to RSMo 1949 and V.A.M.S.). The trial court entered judgment for the relators and issued its peremptory writ. This appeal followed, so there was no submission to the voters at the April, 1956, annual meeting as directed, or since.

The area which relators (respondents here) seek to detach consists of 900 acres; it is now in Reorganized School District No. 3 of Scotland County; we shall, for convenience, refer to that district as 'R-3 District.' At the time of trial seven children of school age resided in that particular area, but five of these had never attended the R-3 schools. That district comprises about 50 square miles and it maintains a high school and an elementary school. The Wyaconda Consolidated School District No. 1 of Clark County (which we shall designate as 'Wyaconda') adjoins the R-3 District and also adjoins the block of land owned by relators which they now seek to detach from R-3 and add to the Wyaconda District. There are approximately 165 children of school age in each district. Each of the districts in question is a 'six-director' district within the meaning of Sec. 165.294. On March 8, 1956, a petition was served upon W. E. Shannon in his capacity as Clerk of the R-3 Board requesting the Board to submit the proposed change of boundaries to the voters of the District at the annual meeting on April 3, 1956. Mr. Shannon stated that he was Secretary of the Board, but we think the distinction is inconsequential. He was also a member of the Board. The requested change in the boundary was specified by detailed legal descriptions, to which no objection has been made. Twelve names were affixed to the petition as signers. Mr. Shannon knew these persons, knew that they were residents of his district, and thought that all of them were landowners. A similar if not identical, petition was simultaneously delivered to the Clerk of the Wyaconda District, signed, however, by different persons. The Board of the latter district accepted the petition, posted notices, and submitted the proposition to its voters, with a resulting approval of the proposed change of boundaries. Mr. Shannon, Clerk of the R-3 District, checked the descriptions, and he then had prepared and posted printed notices, both of the annual meeting and of the proposed change of boundaries (contained, respectively, on the left and right sides of the same card); the notices were posted on March 17, 1956; he also inserted identical notices in the 'Gorin Argus,' a weekly newspaper, on March 15, 1956. At some time after receiving the petition he or the President, Mr. Tillatson, consulted counsel and a meeting of the Board was held on March 19, 1956, after a lapse of eleven days. At some time prior to the meeting Mr. Shannon had determined to his own satisfaction that at last three of the signatures were 'not genuine.' At this meeting, the minutes of which appear in the transcript, the Board found that the petition was insufficient in that--(a) it was not signed by ten qualified voters; (b) it was addressed to the Clerk and not to the Board; and (c) it referred to a change of the boundary lines of the 'Wyaconda' District. The Board disavowed the action of the Clerk, withdrew the newspaper publication, and (through the Clerk and President) obliterated that part of the notices referring to a change of boundaries by painting over it. Thus, no election was held.

The substantive question with which we are concerned here involves the 'signature' of Sampson Lunsford on this petition; the Board found that his name and the name of 'Mrs. Frances Lunsford' 'were signed by the same person'; it made similar findings concerning certain other names, but these are immaterial; if Mr. Lunsford's name was validly affixed, the petition was undoubtedly presented by ten qualified voters and taxpayers, as required by Sec. 165.294. At the hearing in the trial court it was developed that Mr. Lunsford had directed his wife to sign his name to the petition when it was presented to him because he did not have his glasses at the time, and that she did sign his name in his presence; also, that the names of two of the other petitioners (as mentioned above) were affixed by their wives with the authority of their respective husbands, though under somewhat different circumstances. We realize that this information was not necessarily before the Board at its meeting, and will so consider the case.

We construe the opinion of the Court of Appeals as requiring the personal signature of every voter who desires to join in such a petition. It was that holding which primarily prompted this court to transfer the case. An inference might well be drawn here that Mr. Shannon was familiar with the signatures in question and knew or suspected that Mrs. Lunsford had affixed her husband's name; however, we need not and do not go that far. Generally, no particular mode or form of authority is necessary to create a valid agency. 2 C.J.S. Agency Sec. 20; Noren v. American School of Osteopathy, 223 Mo.App. 278, 2 S.W.2d 215; Kaden v. Moon Motor Car Co., Mo.App., 26 S.W.2d 812. The authority may be conferred orally, except in certain specific instances where a writing is required, usually by statute. 2 C.J.S. Agency Sec. 26, p. 1055. This court has held that oral authority was sufficient to empower an agent to make and file an affidavit of the nonpayment of a note secured by deed of trust, since no statute required such authority to be in writing. Murphy v. Milby, 344 Mo. 1080, 130 S.W.2d 518, 519. See also Leidy v. Taliaferro, Mo., 260 S.W.2d 504. For many other instances of valid oral authority see 2 C.J.S. Agency supra, Sec. 26, pp. 1055-1056 and the various cases cited; and see De Mayo v. Cantley, Mo.App., 141 S.W.2d 248, holding valid an oral authorization to endorse a note. The execution of a document by one acting at the oral request of the principal and in his presence has been considered by some courts as the equivalent of written authority, the writing being considered as the personal act of the principal. 2 C.J.S. Agency Sec. 26, p. 1056. We need look no further into such authorities. Beyond all question the name of Mr. Lunsford was validly affixed to the petition under general law. Nor do we think that Sec. 165.294 requires more. It provides that 'ten qualified voters * * * may petition the district boards * * *'; specifically, it says nothing about personal signatures. There are, as the Court of Appeals states, other sections of that chapter which require petitions or notices 'signed by' qualified voters (for instance, Sec. 165.170; Sec. 165.300; Sec. 165.310); indeed, the former section governing changes of boundaries, Sec. 165.170 (made applicable to all districts by Sec. 165.293), required a petition 'signed by ten qualified voters.' The omission of that requirement in the new section, and its continuing inclusion in other sections of the chapter, certainly does not indicate to us an intention to require personal signatures exclusively. We do not agree with the statement of the Court of Appeals to the effect that, in this instance, the voter, 'should [which we construe as 'must'] affix his signature himself.' To so hold would invalidate a petition signed on behalf of a totally incapacitated person, and perhaps one signed under authority of a power of attorney. It is unnecessary to discuss any questions of 'ratification' or 'obligation,' as mentioned by the Court of Appeals. We do not foreclose the application of our present ruling to the other sections of Chapter 165 requiring a petition or notice to be 'signed' by the voters, but that question is not presented here and it is not decided.

We will assume that the directors of District R-3 did not know all these facts when the petition was presented to and filed with its Clerk, and further, that they did not actually know all the facts at the time of their meeting. We do hold that the presentation of this petition to Mr. Shannon in his official capacity was a presentation to the Board. The briefs present, pro and con, questions of the existence and extent, if any, of the Board's discretion in the premises; on the one hand that it had full discretion to determine the validity or invalidity of the petition, and that its action thereon in good faith is final and conclusive (citing State ex rel. Richardson v. Baldry, 331 Mo. 1006, 56 S.W.2d 67, and other cases); on the other, it is insisted that the Board had no real discretionary power, but only the ministerial duty of ordering the election (citing State ex...