State v. Brooks

• Decision Date: 05 March 1923
• Docket Number: No. 23059.,23059.
• Citation: 249 S.W. 73
• Parties: STATE ex rel. BALBY v. BROOKS et al.
• Court: Missouri Supreme Court

249 S.W. 73

STATE ex rel. BALBY v. BROOKS et al.

No. 23059.

Supreme Court of Missouri, Division No. 2

March 5, 1923.

Appeal from Circuit Court, Nodaway County; John M. Dawson, Judge.

Information by the State, on the relation of R. I. Bilby, against D. G. Brooks and others, to oust defendants from office of School Directors. Judgment for defendants,. and relator appeals. Affirmed.

C. F. McCaffrey, Pros. Atty., and Wright & Ford, all of Maryville, for appellant.

Cook & Cummins, of Maryville, for respondents.

SMALL, C.

I. Appeal from the circuit court of Nodaway county.

This is an information exhibited by the prosecuting attorney of Nodaway county at the relation of R. Bilby, as a taxpayer, freeholder, and voter residing in school district No. 104 of said county, Its purpose, as alleged by relator, is to oust the defendants, respondents herein, from the pretended office of school directors of the pretended consolidated school district No. 102, made up of the pretended consolidation of school districts Nos. 74, 75, 101, 102, 103, 104, 105, and 109, all located within said county, for the reason that said pretended consolidated school district No. 102 was unlawfully organized because the plats and notices required by law were insufficient within the meaning of the statute (Laws of 1913 p. 721, now section 11259, R. S. 1919); and for the further reason that the law providing for such consolidation is unconstitutional.

The issues were joined and the evidence heard (which will be referred to in the opinion), and the court on February 17, 1922, rendered its decree sustaining the validity of the organization of said consolidated school district No. In.

Motion for new trial being overruled, relator duly appealed to this court.

II. The first contention of the relator is: That the notices of the election to be held to vote on the proposition of forming said consolidated school district were insufficient, because the law (section 11259, R. S. 1919) requiring 10 notices of said election to be posted was not complied with, in that "three of the notices so pasted omitted school district No. 109, and one of said notices omitted districts Nos. 103 and. 109."

The evidence of respondents on this point shows that one notice and one plat, immediately above said notice, were tacked to a board, and that there were 12 or 13 of such boards with such notices and plats so tacked thereto put up at different places in the various districts affected by this proceeding. Seven of the plats, taken down by relator after the election, were introduced in evidence by the relator. All of the plats introduced in evidence are headed, "Plat of Proposed Consolidated District No. 102 of Nodaway County," and are printed forms showing the township, range, and section lines and numbers. The area and location of every one of the school districts sought to be consolidated are designed on each of these 7 plats by shadings in different colors. There is no complaint made by relator that this variegation of areas so made on the plats does not represent the school districts sought to be consolidated, and we can conceive of no other purpose in so distinguishing these various areas. In addition to the color scheme of identifying the different districts, the numbers of the districts are all plainly marked upon these colored shaded areas on all of the plats in evidence with the apparent exception of "district No. 109; however, the figures "109" Are plainly to be seen on the black-shaded areas of 3 of the 7 plats. None of the plats (considered as separate and apart from the notices) had ever been signed by the county superintendent of schools,

Eight notices, much weather-stained, were also introduced in evidence by relator. Them notices were in typewriting. The figures "109" were inserted in pencil in three of the notices, and are still plainly visible. In one notice "109" had been inserted either in pencil or ink, but has so faded that it is now only visible by careful inspection, showing the possibility of the figures on the other notices being entirely obliterated after having been once inserted therein. There are three of the notices where the figures "109," if ever inserted, are not now visible. We do not find that district No. 103 was omitted from any of the notices, but it is barely visible, nearly faded out, in one of the notices. So that, assuming there were thirteen notices and plats posted up—the most favorable construction of respondents' evidence—the relator's evidence...