State ex rel. Lovell v. Tinsley

• Decision Date: 16 January 1951
• Docket Number: No. 28016,28016
• Citation: 236 S.W.2d 24,241 Mo.App. 690
• Parties: STATE ex rel. LOVELL et al. v. TINSLEY et al.
• Court: Missouri Court of Appeals

Page 24

236 S.W.2d 24

241 Mo.App. 690

STATE ex rel. LOVELL et al. v. TINSLEY et al.

No. 28016.

St. Louis Court of Appeals, Missouri.

Jan. 16, 1951.

Rehearing Denied Feb. 16, 1951.

Warren H. May, Louisiana, for appellants.

Andrew J. Murphy, Jr., F. D. Wilkins, Louisiana, for respondents.

HOUSER, Commissioner.

An alternative writ of mandamus was issued by the Circuit Court commending James Tinsley, Basil Halsema and Claude Allen, Directors of Edgewood School District No. 29 of Pike County, to immediately rewrite or cause to be rewritten by their officers the minutes of the annual meeting of Edgewood School District No. 29 held on April 5, 1949 'so that same will correctly state and set forth what actually transpired at said meeting,' or to show cause at a certain time and place for their refusal so to do.

Respondents filed a motion to quash which was argued, briefed and by the trial court sustained, whereupon judgment was rendered quashing the alternative writ of mandamus, and dismissing and striking from the files the relators' petition. Following the overruling of their motion for a new trial, relators perfected their appeal to this court.

The correctness of the action of the trial court in quashing the alternative writ of mandamus and striking relators' petition is here for review.

The motion to quash the alternative writ served the function of a motion to dismiss for failure to state a claim upon which relief could be granted, so that for the purposes of the motion and of this appeal the following facts stated in relator's petition must be accepted as true, State ex rel. St. Louis-San Francisco Ry. Co. v. Darby, 333 Mo. 1145, 64 S.W.2d 911; State ex rel. and to Use of Markwell v. Colt, Mo.App., 199 S.W.2d 412: that relators are citizens, taxpayers and resident householders of Edgewood School District No. 29; that respondent James Tinsley is the clerk, respondent Claude Allen is the president and that they, together with respondent Basil Halsema, comprise the board of directors of the school district; that a petition for consolidation of Edgewood School District No. 29 and Cyrene-Prairie Mound School District No. C-3 was presented to the clerks of the respective districts and that both clerks, upon receipt of the petition, posted the required notices for the prescribed period of time prior to the annual meeting of the school district on April 5, 1949; that on the appointed day the annual meetings were held in both districts; that in Edgewood district the meeting was called to order by Claude Allen and E. P. Jett was elected chairman of the meeting and James Tinsley filled his office as clerk thereof; that the first order of business was the election of one school director; that tellers were appointed; that relator W. E. Lovell and respondent Claude Allen were nominated, a vote was taken, and when counted and announced by the chairman showed that 23 votes had been cast for relator W. E. Lovell and 19 votes had been cast for respondent Claude Allen; that W. E. Lovell was declared the winner and duly elected; that the annual levy of $1 on each $100 valuation was then approved; that the next order of business was the proposition to form the new school district; that a vote was taken which, on the first ballot, resulted in 21 votes for and 21 votes against said formation; that a second vote was taken which resulted in 23 votes for and 19 votes against said formation, which vote was given by the tellers to the chairman, who announced the same to the meeting and the formation was declared carried, whereupon the meeting adjourned; that on April 26, 1949 a purported copy of the minutes of the meeting of the Edgewood School District was filed in the office of the superintendent of schools in Pike County, which said minutes are false and incorrect in that they state that 'Claude Allen was elected a director, eight votes were challenged and not counted' and that on the second ballot the proposal to consolidate with District No. C-3 '8 votes were challenged and not counted, and the final result of said voting was for consolidation 15, and against consolidation 19, the petition to consolidate was defeated,' all of which is false and untrue; that the minutes do not speak the truth of what transpired at the meeting and were written with the purpose of defeating the consolidation and of retaining Claude Allen as director of Edgewood School District; that the minutes were not made public until long after the time for appeal to the county superintendent of schools had expired, with the purpose of preventing a board of arbitration from ordering said consolidation; that the consolidation proposal was voted upon favorably at the annual meeting of Cyrene-Prairie Mound School District on April 5, 1949.

The petition further alleges that it is to the interest of the public generally and especially to the residing of Edgewood School District that the minutes speak the truth as to what actually transpired at said annual meeting 'to the end that said consolidation may be declared perfected,' and prayed judgment in the same language used in the command of the alternative writ.

The duties of the secretary of the annual meeting of a school district, which were performed in this instance by the clerk of the district, are definitely set forth in the powers of voters at the annual meeting, R.S.Mo.1939, Section 10419, Mo.R.S.A., as follows: 'First--To organize by the election of a chairman and a secretary, who shall keep an accurate record of the proceedings of the meeting, which, when duly approved and attested by the signature of the chairman, the clerk shall enter upon the record of the district.' (Italics ours.)

The vital question on this appeal is whether mandamus is the proper remedy to effect the rewriting of the minutes of an annual school district meeting where the original minutes record the election of a certain person as school director and that a proposal to consolidate with another school district was defeated, when in truth and in fact a different person was elected school director and the consolidation proposition actually was acted upon favorably.

Our conclusion is that mandamus is the proper and only expeditious and immediately available remedy.

Its use to compel the secretary of a board of supervisors of a levee district to record the minutes of a meeting of the board, where he had failed and refused to record the proceedings had at a meeting at which certain resolutions were adopted, was approved in State ex rel. William R. Compton Co. v. Walter, 324 Mo. 290, 23 S.W.2d 167. Speaking of the clerk the court said, 23 S.W.2d at page 170: '* * * he could be coerced by mandamus to make the record speak the truth, either by recording that which he had failed to record or correcting that which he had incorrectly recorded.' (Italics ours.)

In State ex rel. Holmes v. Kernes, 180 Mo.App. 355, 167 S.W. 1080, the action of the trial court in making peremptory an alternative writ of mandamus issued by it against the clerk of a school district to compel him to enter proper orders of record alleged to have been made by the school board calling an election to determine whether there should be an annexation to the adjoining school district, was sustained.

Other authorities supporting the conclusion that mandamus may be employed for the correction and amendment of municipal records include the following: 19 R.C.L. 903, Sec. 202; Bailey on Habeas Corpus and Special Remedies, Vol. 2, p. 985; High, Extraordinary Remedies, 3d Ed., p. 322, Sec. 329a; 55 C.J.S., Mandamus, Sec. 173b, page 325; State ex rel. Andrews v. Boyden, 18 S.D. 388, 100 N.W. 763; Hill v. Goodwin, 56 N.H. 441.

In McQuillin on Municipal Corporations, 2d Ed., Vol. 2, page 646, Section 658, it is said that amendments of municipal records 'may be compelled on order of court, and mandamus will lie for this purpose.'

It is of the utmost importance that public officers who are charged with the duty of accurately recording proceedings of public bodies faithfully execute the truth reposed in them. The fidelity of the record is imperative. It is the tangible evidence of what transpired. It expresses the decision made by the authority. The rights of the public and of individuals depend upon its accuracy. When it is made to appear to a court of justice that a clerical officer has violated his statutory duty to record accurately, and has knowingly composed a false record which recites the opposite of that which in truth transpired at a public meeting, he will be compelled by the hard and fast, inflexible and unreasoning writ of mandamus to undo his mischief, and amend his wrong.

Mandamus is a writ which lies 'to compel the undoing of a thing wrongfully and improperly done, when such wrongfully and improperly done thing precludes or prevents rights to which one is under the law entitled.' Mahon v. Scearce, Mo.App., 228 S.W.2d 384, loc. cit. 389.

Respondents assert, however, that the office of mandamus is to execute, not to adjudicate, and that it cannot be used to ascertain or adjust mutual claims or rights between parties, citing State ex rel. School Dist. No. 24 of St. Louis County v. Neaf, 344 Mo. 905, 130 S.W.2d 509; State ex rel. Horton v. Bourke, 344 Mo. 826, 129 S.W.2d 866; State ex rel. Frank v. Becker, 320 Mo. 1087, 9 S.W.2d 153.

These cases do not support respondents' position. The constitutionality of a statute which is not plainly unconstitutional is not involved in the decision in the case at bar, as in the Neaf case. There is no question about the right sought to be enforced, namely, the right of relators and of the public to have the minutes accurately reflect the truth concerning decisions made at a public meeting. The right is not doubtful, as in the Bourke case. The right which arose out of the facts set forth in the petition is certain, meritorious, and emanated from a duty plainly and unequivocally imposed by law. An equity suit to...