State ex rel. Whitehead v. Wenom

• Decision Date: 13 October 1930
• Citation: 32 S.W.2d 59,326 Mo. 352
• Parties: The State ex rel. S. A. Whitehead et al. v. G. A. Wenom et al., Appellants
• Court: Missouri Supreme Court

32 S.W.2d 59

326 Mo. 352

The State ex rel. S. A. Whitehead et al. v. G. A. Wenom et al., Appellants

Supreme Court of Missouri

October 13, 1930

Appeal from Jefferson Circuit Court; Hon. E. M. Dearing Judge.

Reversed and remanded (with directions).

R E. Kleinschmidt for appellants.

(1) Mandamus will lie only to enforce the performance of a "strictly ministerial duty," and will not lie to compel the performance of an act involving the exercise of discretion. 38 C. J. 759, sec. 392; 26 Cyc. 227-228; State ex rel. v. Hudson, 226 Mo. 239; State ex rel. v. Scott County (Mo. Sup.), 197 S.W. 347; State ex rel. v. Thomas (Mo. App.), 220 S.W. 702. (2) Even after the directors of a school district have been authorized and empowered by the voters to issue bonds, it is still a matter of discretion on the part of the directors as to whether the bonds should be issued. Bauer v. School District, 78 Mo.App. 442; Hart v. School District (Mo. Sup.), 252 S.W. 441; Rogers v. Carlisle Graded School, 11 Ky. L. Rep. 934. (3) The establishment and management of public schools in a town or consolidated school district are vested in the board of directors and their discretionary powers cannot be controlled by mandamus. Secs 11127, 11134, 11135, R. S. 1919; State ex rel. v. Jones, 155 Mo. 570; Hart v. Nevada School District, 252 S.W. 441, 299 Mo. 36; State ex rel. v. Turnage, 207 Mo.App. 278, 263 S.W. 497; Velton v. School District of Slater, 6 S.W.2d 652. (4) The relator in mandamus proceedings must show that he is entitled to a performance of all the things specified, and if he fails in any substantial particular, the peremptory writ will be denied; and if he is not entitled to all the relief specified in the alternative writ, he is not entitled to any. State ex rel. v. Finley, 74 Mo.App. 217; State ex rel. v. Police Commissioners, 80 Mo.App. 206; School District v. Lauderbaugh, 80 Mo. 190; State ex rel. v. Field, 37 Mo.App. 101; State ex rel. v. Coon (Mo. Sup.), 296 S.W. 101. (5) Before a party is entitled to relief by mandamus he must prove that he has a clear, unequivocal, specific right to the relief claimed. He must show himself possessed of a clear and legal right to the remedy. State ex rel. v. Hudson, 226 Mo. 265; State ex rel. v. McIntosh, 205 Mo. 610.

Clyde Williams for respondents.

(1) The school board has no discretion where the voters have authorized the bonds and selected the site. State ex rel. Roberts v. School Directors of Springfield, 74 Mo. 21; State ex rel. Rutledge v. St. Louis School Board, 131 Mo. 505; State ex rel. Morehead v. Cartwright, 122 Mo.App. 257; Benjamin v. Malaka Dist. Tp., 50 Iowa 648; Krull v. State, 59 Neb. 97; Weston v. City of Newburgh, 22 N.Y.S. 22; 26 Cyc. 281, 302. (2) Mandamus will lie to control the action of public boards, even in matters where they have discretion, where that discretion is abused or used in an arbitrary manner. State ex rel. Kelleher v. Directors of St. Louis Public Schools, 134 Mo. 296; State ex rel. Bank v. Bourne, 151 Mo.App. 104; State ex rel. v. Adcock, 206 Mo. 556; 26 Cyc. 161.

Cooley, C. Davis and Henwood, CC., concur.

OPINION

COOLEY

Mandamus begun and tried in the Circuit Court of Jefferson County. The trial court, upon the filing of the petition, issued an alternative writ, which was made permanent upon final hearing, and five of the respondents below appealed. Relators are residents and taxpayers of Consolidated School District No. 1 of Jefferson County, and at the time of the institution and trial of this action the six men who were respondents below constituted the board of directors of said district. One of the directors made no return to the alternative writ and did not join in the appeal.

On March 18, 1922, soon after the organization of the consolidated district, a special election was held therein, pursuant to call of the then board of directors, at which it was voted to authorize the board to issue bonds in the sum of $ 40,000 to build a "central school building" and to purchase a school site, and by vote of the electors at the same election a specified site was selected embracing about five and one-third acres. The bonds have not been issued. Shortly following the special election there was some litigation involving the organization of the district and an attempt to disorganize, which may account for the fact that the bonds were not issued immediately after the election. This suit was filed in December, 1926. Meantime, as we infer from the evidence, the personnel of the board had changed and the present board refused to issue the bonds. The suit is to compel the board to issue the $ 40,000 in bonds and to acquire the site selected at the special election and to erect thereon a central high school building. The organization of the district and the regularity of the proceedings in calling and holding the special election are not here questioned.

Relators' petition seems to proceed upon the theory that when the bonds were voted it became the imperative duty of the board to issue the bonds, to acquire the site selected by the voters and to erect thereon a high school building. It alleges that upon the bonds being voted the board "was authorized and directed" to issue the bonds for the purpose of acquiring the site and erecting thereon a high school building; that the district has no central high school building and no site on which to build one, and that the directors have "arbitrarily, wilfully and capriciously and in violation of their duty," refused to issue the bonds and purchase the site.

Following the prayer of the petition the alternative writ commands: That the directors purchase the school house site described in the petition (the one selected by the voters) or if they cannot agree with the owners upon a price that they procure it by condemnation; that they issue, negotiate and sell the bonds in the sum of $ 40,000 and receive the proceeds thereof; and that they use said proceeds or sufficient thereof to acquire said site and erect thereon a central high school building; or that they show cause, etc.

The five directors who made returns alleged therein in substance that the vote on the questions of issuing bonds and purchasing the site referred to was of an advisory nature and not binding on these directors; that in the exercise of their lawful discretion they were of the honest opinion that there was at the then present time no necessity that the bonds be issued or that the particular land mentioned in the petition and alternative writ be acquired; that conditions in the district had changed since March 18, 1922; that there were only about twenty-five pupils in the district ready for high school, and that they, the directors, were and had been providing, by renting, a suitable building sufficient for the needs of the district and maintaining therein a first-class high school; that the issuance of the bonds and purchase of said site was unnecessary and impracticable at that time; that it was not then the desire of a two-thirds majority or of any majority of the voters of said district that the bonds be issued or that said particular site be purchased. They specifically denied that they had arbitrarily or capriciously refused to issue the bonds and purchase the site, but averred their refusal was "due to an honest exercise of their discretionary powers, with due regard to the needs and requirements of the school children and the rights and desires of a majority of the taxpayers of said district and because the buildings they now have are amply sufficient to maintain an accredited high school, together with the several elementary or grade schools, in said district."

Relators thereupon filed a motion for judgment on the pleadings, which was overruled, and the cause went to trial without any reply being filed by relators.

At the trial it was formally admitted that the election authorizing the bond issue and "for the selecting of a school site for the central school building" was regularly and legally held, and that the assessed valuation of property in the district was over one million dollars, whereupon relators rested. Appellants testified in their own behalf. Their testimony was in substance and to the effect that the reason they had not issued the bonds or purchased the site mentioned was that they did not believe the conditions existing at the time justified their doing so, and that the then needs of the district did not require or justify it. They testified further that they had talked with a majority of the taxpayers of the district and nearly all were opposed to the issuance of the bonds and the purchase of that site; that sentiment in the district had changed and the then prevailing sentiment was against the issuance of the bonds at that time; that the site in question was not suitable, part of it being swampy, and that it would require a good deal of grading; that there were not to exceed thirty-five or forty pupils in the district eligible for high school, of whom only about twenty-five attended the high school that was being maintained; that they were and had been maintaining a first-class high school in a rented building, giving the entire four years' courses of study, which had been approved by the state authorities and which was ample to meet the present needs of the district.

There was some evidence tending to show that at the various school elections since March 18, 1922, those opposed to issuance of the bonds had nominated two candidates for directors and those in favor thereof had nominated two, and that that question was the determining factor in the elections. While it cannot be said that the evidence clearly showed such to have been the fact, it is true that at the time suit was brought only one of the six then...