State ex rel. Vig v. Lehman

• Decision Date: 10 April 1922
• Docket Number: 4868
• Citation: 187 N.W. 720,45 S.D. 394
• Parties: STATE OF SOUTH DAKOTA ex rel. ANDREW VIG, Plaintiff and appellant, v. E. J. LEHMAN, Frank Hoval and Martin Schmidt, the School Board of School District No. 89 of Meade County, Defendants and respondents.
• Court: South Dakota Supreme Court

45 S.D. 394

187 N.W. 720

STATE OF SOUTH DAKOTA ex rel. ANDREW VIG, Plaintiff and appellant,

v.

E. J. LEHMAN, Frank Hoval and Martin Schmidt, the School Board of School District No. 89 of Meade County, Defendants and respondents. South Dakota Supreme Court Appeal from Circuit Court, Meade County, SD Hon. James McNenny, Judge #4868--Affirmed John T. Milek Attorneys for Appellant. Harry P. Atwater Attorneys for Respondents. Opinion filed April 10, 1922; Rehearing denied May 16, 1922

POLLEY, J.

This appeal grows out of a school district squabble in Meade county. The school board moved a building that for several years had been used for school purposes from one part of the district to another. Plaintiff, on behalf of himself and several neighbors, claiming that the provisions of section 7494, Revised Code, relative to the removal of school buildings, had not been complied with, and that the school board had never been legally authorized nor directed to move the said building, and being dissatisfied with the change, applied to the circuit court for a writ of mandamus directing defendants, as members of such school board, to return the said building to the place from which they had moved it. The writ was denied and plaintiffs appeal.

Respondents contended that they were duly authorized to remove the building. They also contend that the school district does not own the said building nor the site from which it was removed, and that therefore the court is without the power to direct the return of the building to the said site without the consent of the owners thereof. But it is immaterial to the issues in this case whether the district owned said building or not. It is conceded that the district had been in possession of both the building and the site, and had been using them for school purposes for something like five years before the building was moved. From this fact it will be assumed that such use had been with the consent of the owner, and, in the absence of anything to the contrary, it will be presumed that such consent still exists.

Upon the question of the authority to move the building, the facts are as follows: The district comprises some 24 Congressional townships. It contains 23 or 24 school buildings, and from 300 to 400 electors. The annual school meeting was held in June, 1919. Notices of the meeting had been posted in several places in the district, but there was nothing in said notices intimating that the question of moving schoolhouses would be acted upon. Something like 100 electors attended this election, but none of the complainants were present. At this meeting a motion was made and carried empowering the board to move any schoolhouse in the district, or to build new schoolhouses according to their best judgment, and it was pursuant to the purported authority granted by this motion that defendants moved the building in question. It appears from the evidence that at each annual meeting held in the district for seven or eight years prior to the meeting held in 1919 a resolution similar to the one just referred to had been adopted. This is not a sufficient compliance with the requirements of section 7494, Revised Code. This section provides that:

"The school board shall have power to direct the removal of a schoolhouse to a more convenient location, upon the affirmative vote of a majority of the electors of the entire district, or upon the affirmative vote of two-thirds of the electors of such district voting upon the proposition at any regular election, or special election called for that purpose, providing notice of the proposition for such removal to be voted upon shall have been given, with the notice of such election. ..."

This means that the proposition of moving schoolhouses may be acted upon at either a general or special election, provided notice that such proposition would be acted upon be given with notice of such election. The removal of a schoolhouse from one part of a district to another is not one of the ordinary...