State, to Use of Consol. School Dist. No. 42 of Scott County v. Powell
| Decision Date | 13 June 1949 |
| Docket Number | 40872 |
| Parties | State of Missouri, to the Use of Consolidated School District No. 42 of Scott County, by D. W. Gilmore, Prosecuting Attorney of Scott County, Missouri, who prosecutes in the name of the State of Missouri for and on Behalf of said Consolidated School District No. 42, Respondent, v. Arthur Powell, Henry Claycomb, Roy Cauliflower, Clyde Sanders, John Gage, and W. F. Dennis, Appellants |
| Court | Missouri Supreme Court |
Appeal from Scott Circuit Court; Hon. J. C. McDowell Judge.
Affirmed.
The facts and holding of the case are adequately summarized by the headnote.
Roger A. Bailey and Robert A. Dempster for appellants.
(1) An organized school district is an independent body corporate under the laws of the state, a quasi public corporation. State ex rel. Carrollton School Dist. v. Gordon, 133 S.W. 44; School Dist. of Oakland v. School Dist. of Joplin, 102 S.W.2d 909; Kansas City v. School Dist. of Kansas City, 201 S.W.2d 930. (2) School district, a body corporate, has capacity to sue and be sued. School Dist. No. 45 of Pemiscot County v. Carroll, 286 S.W. 136, 220 Mo.App. 322; School Dist. No. 54 of St. Louis County v. Neaf, 148 S.W.2d 554, 347 Mo. 700. (3) There is no authority in law for the prosecuting attorney of a county to bring a civil action in the name of the State of Missouri to the use of a school district without the consent of the district. Secs. 12942, 12944, R.S. 1939; State ex rel. Hurwitz v. North, 264 S.W. 678; State ex rel. Wammack & Welborn v. Affolder, 257 S.W. 493.
D. W. Gilmore for respondent.
Dalton, C. Bradley and Van Osdol, CC., concur.
The sole question presented on this appeal is the legal right of the prosecuting attorney of Scott county under the facts stated in the petition and shown by the evidence, to bring and maintain this action in the name of the State and for the use and benefit of Consolidated School District No. 42 of Scott county without the consent or authority of such school district. The cause was tried to the court without the aid of a jury and a judgment for $ 9531.25 was entered in favor of the plaintiff. Defendants have appealed.
It appears that said District No. 42 is a consolidated school district duly organized and existing under the laws of the State of Missouri and located in Scott county. Defendants are the individual members of the board of directors of said school district and include the president, treasurer and secretary of the school board. As indicated in the style of the cause, the action purports to be one by the State of Missouri, to the use of Consolidated School District No. 42 of Scott County, by D. W. Gilmore, Prosecuting Attorney of Scott County, Missouri, who prosecutes in the name of the State of Missouri for and on behalf of said Consolidated School District No. 42. By the action plaintiff seeks a personal money judgment against the individual defendants for the total amount of the funds of said district, belonging to a fund known as the Teachers' Fund, alleged to have been illegally, unlawfully and wrongfully expended and caused to be expended for other purposes than for the payment of teachers. The action was instituted by the prosecuting attorney of Scott county in his official capacity as such, but the prosecuting attorney acted at the request of certain landowners and taxpayers in the said school district.
The evidence shows that, between July 1, 1944 and June 30, 1946, with the knowledge, acquiescence and consent of each and everyone of the defendants, some $ 8500 of funds of the said district, belonging to the Teachers' Fund, were transferred by order of the board to the Incidental Fund of said district and expended as such contrary to the provision of Sec. 10366 R.S. 1939 as amended Laws 1943, p. 893, Sec. 1. There was further testimony that the said school district was short of incidental funds and that the transfer was considered necessary to the operation of the schools of the district. It further appeared that the reports filed with the county clerk of the county showed the transfer and expenditure of Teachers' Funds for incidental purposes, but that the reports filed with the State Superintendent of Schools did not show that moneys from the Teachers' Fund had been spent for other purposes. See Sec. 10501 R.S. 1939; Laws 1941, p. 536.
Our General Assembly has by statute provided for the establishment of separate legal entities known as "school districts" and has determined their powers and duties. Sec. 10323 et seq., Chap. 72 R.S. 1939. A consolidated school district, such as the one mentioned above, is a public corporation. Kansas City v. School District of Kansas City, 356 Mo. 364, 201 S.W.2d 930, 933; State ex rel. Brickey v. Nolte, 350 Mo. 842, 169 S.W.2d 50, 55; School Dist. of Oakland v. School Dist. of Joplin, 340 Mo. 779, 102 S.W.2d 909, 910. Such districts have the capacity to sue and be sued as such. School Dist. No. 24 of St. Louis County v. Neaf, 347 Mo. 700, 148 S.W.2d 554, 556; School Dist. No. 24 v. Mease (Mo. App.), 205 S.W.2d 146; Sec. 10487 R.S. 1939; Sec. 10466 R.S. 1939. Accordingly, appellants contend that no suit may be brought on behalf of Consolidated School District No. 42 of Scott county, or to its use, without the consent and authority of its board of directors; and it is conceded that the prosecuting attorney had no such consent or authority from the school board of said district for the institution of this suit.
We think the facts alleged in the petition are sufficient to show a personal interest of the directors adverse to the bringing of any such action as this and to show the consequent disqualification or hostility of the directors to the taking of any steps looking to the recovery, from themselves individually and personally, of the amounts which they have illegally and wrongfully transferred from the Teachers' Fund of said district to the Incidental Fund and have illegally and wrongfully misapplied and spent. In this connection the court remarked at the trial: "The court takes judicial notice that they (the defendants) are not going to sue themselves."
Appellants contend that the prosecuting attorney has no statutory or common law authority to interfere with the administration of school districts and particularly that the statutes give the prosecuting attorney no authority to act in behalf of a school district without its consent. Appellants cite State ex rel. Hurwitz v. North, 304 Mo. 607, 264 S.W. 678, where a complaint was filed to revoke a physician's license. The complainant described himself as the prosecuting attorney of a particular county and the court held that the complainant in his official capacity was not authorized to file such a complaint, but that a complaint by one who was a citizen was sufficient to give the State Board of Health jurisdiction to hear the complaint. The other case cited is State ex rel. Wammack & Welborn v. Affolder, 214 Mo.App. 500, 257 S.W. 493, where the court held that the county court might employ other attorneys than the prosecuting attorney to advise as to a township bond issue, since the statutes did not make it the duty of the prosecuting attorney to advise the county court as to such a bond issue, so as to prevent the court from employing other attorneys for such purpose.
Appellants argue that the prosecuting attorney has only such powers as are expressly conferred upon him by statute, and that, if a prosecuting attorney is not satisfied with the manner in which the board of directors is administering the affairs of a school district, his remedy is Quo Warranto, Mandamus or Injunction. They insist that he cannot maintain a civil suit, such as this, to obtain a money judgment on an alleged personal liability of the directors to the school district for the misappropriation of funds. Appellants further contend that only the district, by the authority of its board of directors, is a proper party plaintiff to obtain such a money judgment. Respondent has not favored us with a brief.
Section 12942 R.S. 1939 expressly provides that "the prosecuting attorneys shall commence and prosecute all civil and criminal actions in their respective counties in which the county or state may be concerned. . . ." Section 12944 R.S. 1939, provides that "he shall prosecute or defend, as the case may require, all civil suits in which the county is interested. . . ." Neither the word "concerned" nor the word "interested" is defined, but one of the definitions given for the word "concerned" is "affected, disturbed, troubled, interested; as, to be concerned for one's safety." Webster's New International Dictionary (2nd Edition). There can be no doubt that the state was interested, concerned and affected by the illegal transfer and dissipation of the Teachers' Funds of this school district.
Appellants as members of the school board occupied a fiduciary relationship to the said school district. State ex rel. Brickey v. Nolte, supra (169 S.W.2d 50, 55). They had charge of the Teachers' Funds belonging to said district for the purpose of disposing of it in accordance with provisions of Sec. 10366, supra, as amended Laws 1943, p. 893, Sec. 1. The school funds of the said district belonging to the Teachers' Fund constituted a trust fund for the purposes provided by statute. See Saline County v. Thorp, 337 Mo. 1140, 88 S.W.2d 183, 186; Montgomery County v. Auchley, 103 Mo. 492, 503, 15 S.W. 626; Butler Co. v. Campbell, 353 Mo. 413, 182 S.W.2d 589, 591-592; State ex rel. Circuit Atty. v. Saline County Court, 51 Mo. 350, 364. A portion of such funds are obtained directly from the state. See Sec. 10390 R.S. 1939.
Appellants concede that the state...
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