State ex rel. Thurlo v. Harper

• Decision Date: 18 March 1935
• Citation: 80 S.W.2d 849,336 Mo. 717
• Parties: State of Missouri at the Relation of Vane C. Thurlo, Prosecuting Attorney of Linn County, v. Iola Harper et al., Appellants
• Court: Missouri Supreme Court

80 S.W.2d 849

336 Mo. 717

State of Missouri at the Relation of Vane C. Thurlo, Prosecuting Attorney of Linn County, v. Iola Harper et al., Appellants

Supreme Court of Missouri

March 18, 1935

Appeal from Macon Circuit Court; Hon. V. L. Drain, Judge.

Affirmed.

Erroll Joyce and H. K. West for Iola Harper, Gladys Sevier, Naomi Richards and Wesley Harper.

Lon R. Owen for Carl Rauer, O. P. Haney, Spencer Sportsman and William Gaw.

(1) Vacancies, Section 9290, Revised Statutes of Missouri 1929 provides: "If a vacancy occurs in the office of director by death, resignation, refusal to serve, repeated neglect of duty, or removal from the district, the remaining directors shall, before transacting any official business, appoint some suitable person to fill such vacancy; but should they be unable to agree, or should there be more than one vacancy at any one time, the county superintendent of schools shall upon such notice of such vacancy or vacancies being filed with him in writing, immediately fill the same by appointment and notify said person or persons in writing of such appointment; and the person or persons appointed under the provisions of this section shall comply with requirements of Section 9288, and shall serve until the next annual school meeting." Section 9327, Revised Statutes of Missouri which applies to city or town consolidated schools, holds that "any person appointed shall hold office until the next annual meeting when a director shall be elected to the unexpired term." (2) State ex inf. Mansur ex rel. Fowler v. McKown, 290 S.W. 129, holds that in school elections the law should be liberally treated and the elections construed to effect the purpose of the voters, and also holds that where the voters elect too many directors, the first elected are directors.

OPINION

Coles, J.

This is a quo warranto proceeding filed in the Circuit Court of Linn County, Missouri, by the prosecuting attorney of that county as relator and tried on change of venue in the Circuit Court of Macon County, Missouri. The suit was instituted to determine who were the legally qualified directors of the St. Catherine School District in Linn County which is shown to have been a town school district organized and existing under and by virtue of Article IV of Chapter 57, Revised Statutes of Missouri, 1929. It appears that at the time of the institution of this proceeding two different and distinct groups of persons were assuming to act as directors of the school district in question and that the respective groups were maintaining separate schools with separate sets of teachers. The information in quo warranto was exhibited against eleven named respondents who comprised the members of both groups. The record shows that all the respondents named in the information, except Naomi Richards, filed returns thereto. For convenience we will refer to the respective groups as the "Rauer board" and the "Harwood board." The "Rauer board" consisted of Carl Rauer, acting president, and William Gaw, William Langwell, Spencer Sportsman and O. P. Haney as the other members. The "Harwood board" consisted of A. H. Harwood, acting as president, Iola Harper, Naomi Richards, Wesley Harper, Gladys Sevier and Albert Lewis as the other members.

Upon the trial below it was stipulated by the respective parties that prior to the annual election in April, 1934, the board of directors of the school district here in question consisted of A. H. Harwood, William Gaw, William Langwell, Gladys Sevier, Iola Harper and O. P. Haney. That at the annual election in April, 1934, it was the duty and province of the electorate of the school district in question to elect successors for the following directors: O. P. Haney, Iola Harper and Gladys Sevier; that the electorate of said school district met at its annual meeting on April 3, 1934, and that a printed form of ballot was used, and "that the following named persons received the following designated votes at said election, to-wit: Carl Rauer, 42 votes; O. P. Haney, 42 votes; Spencer Sportsman, 50 votes; Iola Harper, 23 votes; Gladys Sevier, 22 votes; Naomi Richards, 29 votes." The stipulation above mentioned, which was submitted in evidence in the trial court, further stated that at the annual school election on April 3, 1934, "a printed form of ballot was used (the ballot marked Exhibit 'A' being a copy of the ballot used)." The "printed form of ballot" marked "Exhibit A" is not set forth in the record proper or in the exception record. Nor does it appear from the bill of exceptions that this "ballot marked Exhibit 'A'" was submitted in evidence in the trial court or otherwise brought to the attention of that court. The respondents' brief sets forth what purports to be the form of ballot used at the school election in question, but as there is nothing in the record to support respondents' statement as to the form of the printed ballot, we are of the opinion that the form of printed ballot used at the election mentioned is not properly before this court for consideration. [State ex rel. Malin v. Merriam, 159 Mo. 655, 60 S.W. 1112; Fruin v. O'Malley, 241 Mo. 250, 145 S.W. 437; Perringer v. Raub, 300 Mo. 535, 254 S.W. 703.]

After hearing the evidence, the trial court entered a judgment and decree finding that the school district election "held on April 3d, 1934 was a valid and legal election and that the legally constituted board of said school district is on this date composed of A. H. Harwood, William Gaw, William Langwell, Carl Rauer, Spencer Sportsman and O. P. Haney;" and dismissed the quo warranto proceedings as to them and granted a writ of ouster as to Gladys Sevier, Wesley Harper, Iola Harper and Naomi Richards. It is conceded by the parties that the respondent Albert Lewis was at the time of the trial below a nonresident of the school district in question and neither had, nor claimed, any right to the office of school director of said district and that the writ of ouster granted as to him is not challenged here. The appellants Iola Harper, Wesley Harper, Gladys Sevier and Naomi Richards were duly granted an appeal to this court from the judgment and decree entered by the trial court.

The evidence submitted in the trial court shows that after the annual election held on April 3, 1934, a notice was given of a proposed meeting of the school directors to be held at the schoolhouse on April 4, 1934; that this meeting was postponed until April 5, 1934, at eight P. M.; that on April 5th about eight P. M., A. H. Harwood, William Langwell, Gladys Sevier, Iola Harper, Carl Rauer and Spencer Sportsman were present at the schoolhouse; that Mr. Harwood, who was president of the board, refused to swear in Mr. Rauer as director saying, "he wasn't elected;" that Mr. Sportsman requested Mr. Harwood to swear him in as director and that he refused to do so, or according to the version of another witness Mr. Sportsman declined to take the oath at that time; that Mr. Langwell, Mr. Sportsman and Mr. Rauer went "outside" and did not participate further in the meeting; that thereupon Mrs. Naomi Richards was called from the basement of the building and appointed a director by the joint action of Mr. Harwood, Mrs. Sevier and Mrs. Harper in the place of Mr. Sportsman who, it was claimed by the Harwood faction had "refused to serve;" that thereafter on May 5, 1934, the "Harwood board" assumed to appoint Wesley Harper a member of that board in the place of William Gaw to fill an alleged "vacancy resulting from the abandonment and refusal of William Gaw to act." The foregoing are the general facts in reference to the constitution of the so-called "Harwood board," but there are some other facts relating to the matter which will be mentioned later.

The evidence further shows that William Gaw and O. P. Haney went to the St. Catherine schoolhouse on April 5, 1934, at or after nine p.m. on that evening with a view to attending the meeting of the school directors called for that evening; that upon their arrival they "heard" that there had been a meeting before they got there and that "the people had left." The evidence shows that after Gaw and Haney arrived at the schoolhouse on that evening, Langwell, Rauer and Sportsman were present there and that Harwood, Mrs. Sevier, Mrs. Harper and Mrs. Richards were not there. The evidence further shows that Gaw, the district clerk, on that evening administered the oath of office as school director to Rauer, Sportsman and Haney.

It also appears from the evidence that a meeting of persons claiming to be directors of the St. Catherine School District was called to meet at the schoolhouse on April 7, 1934; that Harwood, Gaw, Langwell, Haney, Rauer, Sportsman, Mrs. Sevier, Mrs. Richards and Mrs. Harper attended. The evidence tends to show that Mr. Harwood called this meeting to order and...