State ex rel. McCain v. Acom
| Decision Date | 20 February 1951 |
| Docket Number | No. 6967,6967 |
| Citation | 241 Mo.App. 446,236 S.W.2d 749 |
| Parties | STATE ex rel. McCAIN et al. v. ACOM et al. |
| Court | Missouri Court of Appeals |
Jones & Jones, Langdon R. Jones and Robert H. Jones, all of Kennett, for appellants.
John M. Dalton, Harold Treasure, of Kennett, Clarence A. Powell, of Dexter, for respondents.
In the briefs, the several attorneys agree that, to avoid confusion, the parties may generally be designated in this Court as they were in the Circuit Court.
The appellate jurisdiction of this Court is not challenged. It is settled by what Judge Tipton, of the Supreme Court, has said in Hydesburg Common School District of Ralls County v. Rensselaer Common School District of Ralls County, Mo.Sup., 214 S.W.2d 4.
The relators below are residents in and qualified voters of Peach Orchard Common School District No. 50, in Pemiscot County. Relators below desired to have some of the territory of the Wardell Consolidated School District, and asked that it be attached to the Peach Orchard Common School District, and so voted at the election held in that school district.
Respondents below having indicated their opposition to such proposition, a mandamus proceeding was instituted in the Circuit Court of Pemiscot County, on March 18, 1950, to compel the Clerk of the Wardell Consolidated School District to give notice of an election to be held therein on April 4, 1950, the date of the annual meeting. The Circuit Court of Pemiscot County issued an alternative writ of mandamus to compel such action. Thereupon, the respondents, the clerk and members of the Wardell Consolidated School District, took a change of venue and the case was sent to the Circuit Court of Butler County. The files in the case reached Butler County too late for the giving of 15 days' notice, before April 4, 1950.
In the Circuit Court of Butler County, the respondents asked dismissal of the case, on the ground that the question involved had become moot. On May 22, 1950, the Circuit Court of Butler County issued what was designated as a supplemental alternative writ of mandamus, commanding respondents to hold a meeting of the Wardell Consolidated School District within 20 days thereafter, and to call an election within that district within 20 days, after the meeting of the Board on April 4, 1950.
On May 29, 1950, respondents asked, and the Circuit Court of Butler County refused, a dismissal of such supplemental alternative writ of mandamus. Respondents have appealed to this Court and make five assignments of error. Such assignments relate to the power of the Circuit Court of Butler County to issue its supplemental alternative writ of mandamus, when it did, and to make such writ permanent. The sole questions in this case, as we see them, are the power of the Circuit Court of Butler County to issue its supplemental alternative writ of mandamus, to refuse to dismiss the case as moot and to make its ancillary writ of mandamus permanent.
Assignment V of appellants' brief in this Court states the real question in this case, as follows:
'The court erred in overruling Respondents' motion to set aside the orders of the court, overruling Respondents' motions to dismiss, to strike the supplemental petition for writ of mandamus and to quash the supplemental alternative writ of mandamus.'
In their brief, realtors, respondents here, cite Sections 10410 and 10485, of the Statutes of Missouri for 1939, R.S. 1949, 165.170, 165.293, and three cases on the proposition that the law authorizes a change of boundaries, in the manner sought by relators. There is no question about such legal proposition. Those sections of the statute and the cases cited have been examined by us and they so hold.
It was the plain duty of the secretary of the Wardell Consolidated School District to issue and post notices for the question to be decided at the election on April 4, 1950. He did not issue such notices and an alternative writ of mandamus, to compel such action, was issued by the Circuit Court of Pemiscot County.
As we understand this case, there is really only one question in it. That question is the power of the Circuit Court of Butler County to issue a supplemental alternative writ of mandamus, at the time it issued such writ. In paragraph IV(a), relators below cite several sections of the New Code of Civil Procedure, and some cases, which they assert authorized the Circuit Court of Butler County to issue a supplemental alternative writ of mandamus, at the time and under the conditions prevailing, when it issued such writ.
The case of State ex rel. Harrison et al. v. Hill et al., 211 Mo.App. 623, 249 S.W. 693, cited by them, referred to the power of the St. Louis Court of Appeals to issue a writ of mandamus to compel action by the Board of Supervisors of a Levee District in Clark County. The power of the St. Louis Court of Appeals to issue a supplemental writ of mandamus was not discussed and that question was not involved in the case. The sole question there, was the duty of the Board of Supervisors of the Levee District to call an election at all. The Board claimed that the calling of such an election was discretionary with it. All of the changes, made by the Court, were in the alternative writ by changing the date of the election to a date, agreed upon by the parties, and merely the power of the Court to make such an amendment in the alternative writ, under such circumstances, was challenged.
The case of State ex rel. Byrd v. Knott et al., Mo.App., 75 S.W.2d 86, was written by Judge Smith, of this Court. The time-liness of the amendment to the supplemental alternative writ of mandamus was not an issue in that case, and was not discussed. After holding that mandamus was the proper remedy, under the circumstances of that case, the question of a subsequent amendment of the writ was not discussed.
The case of State ex rel. Hart et al. v. City of St. Louis et al., 356 Mo. 820, 204 S.W.2d 234, loc.cit. 240, was an original proceeding by mandamus in the Supreme Court of Missouri. That case involved the right and duty of the mayor, the comptroller, and others, to issue warrants for the salaries of relators. The case was written by Judge Tipton in 1947. The power of the Supreme Court to issue a supplemental alternative writ of mandamus, as issued by the trial court, was not discussed.
State ex rel. Porter v. Hudson et al., 226 Mo. 239, loc.cit. 264, 126 S.W. 733, cited by relators, was an appeal to the Supreme Court of Missouri and was decided in an opinion written by Judge Lamm, over the dissents of some other judges of that Court. Relators were therein held not to be entitled to the writ of mandamus at all, and the judgment of the lower court, granting such writ, was reversed.
In the Circuit Court of Butler County, the respondents below asked dismissal of the case on the ground that the question involved had become moot. It was their contention that, since the date mentioned in the writ of mandamus, towit, '* * * 15 days prior to the time of the annual meeting,' on April 4, 1950, had passed, the question was moot, and the trial court, which received the case, after the change of venue, had no power to issue an alternative writ of mandamus.
Section 10410, R.S.Mo. 1939, R.S. 1949, Sec. 165.170, is too long to be quoted in full, but the language used in that section demands close study. It requires the clerk of the school...
To continue reading
Request your trial
-
State ex rel. Sisson v. Felker
...v. Roberts, Mo.App., 269 S.W.2d 148, 153; State ex rel. Dahm v. Goodin, Mo.App., 295 S.W.2d 600, 604(5); State ex rel. McCain v. Acom, 241 Mo.App. 446, 236 S.W.2d 749, 753(3, 4); State ex rel. Heppe v. Zilafro, Mo.App., 210 S.W.2d 719, 722-723.3 State ex rel. Rogersville Reorganized School ......
-
State ex rel. Kugler v. Tillatson
...only the ministerial duty of ordering the election (citing State ex rel. Gault v. Gill, 190 Mo. 79, 88 S.W. 628, 630; State ex rel. McCain v. Acom, Mo.App., 236 S.W.2d 749). None of the cases cited present the question which we have here. Assuming that a concededly valid petition is present......
-
Consolidated School Dist. No. 1 of Jackson County v. Bond
...of N.W. Mo. State College, 256 S.W.2d 785 (Mo.1953); State ex rel. Dahm v. Goodin, 295 S.W.2d 600 (Mo.App.1956); State ex rel. McCain v. Acom, 236 S.W.2d 749 (Mo.App.1951); Jr. College Dist. of Met. K. C. v. Mayse, 433 S.W.2d 541 Plaintiff school district places substantial reliance upon th......
-
England v. Eckley
...as to whether a special election should be ordered (State ex rel. Kugler v. Tillatson, Mo., 312 S.W.2d 753, 758; State ex rel. McCain v. Acom, Mo.App., 236 S.W.2d 749) or whether the proposals should be submitted at the next annual election of the It is so ordered. All concur. 1 These inclu......