Ward v. Consol. School Dist.

• Decision Date: 29 April 1929
• Docket Number: No. 16540.,16540.
• Parties: VERNON B. WARD ET AL., APPELLANTS, v. CONSOLIDATED SCHOOL DISTRICT NO. 136 OF NODAWAY COUNTY, RESPONDENTS.
• Court: Missouri Court of Appeals

16 S.W.2d 598

VERNON B. WARD ET AL., APPELLANTS, v. CONSOLIDATED SCHOOL DISTRICT NO. 136 OF NODAWAY COUNTY, RESPONDENTS.

No. 16540.

Kansas City Court of Appeals. Missouri.

April 29, 1929.

Appeal from the Circuit Court of Nodaway County. — Hon. John M. Dawson, Judge.

AFFIRMED.

A.M. Tibbels, A.F. Harvey and Shinabarger, Blagg & Sigler for appellants.

Cook & Cummins and Randall Wilson for respondents.

LEE, C.

This is an appeal by certain taxpayers of Consolidated School District No. 136 in Nodaway county, Missouri, from a judgment in favor of defendants in the Nodaway county circuit court in a suit to enjoin said school district from holding an election to vote on the school bond issue and from selling said bonds, and to declare invalid a change of boundary lines.

Consolidated School District No. 136 (commonly known as the Skidmore district, from the town of Skidmore therein), comprising about forty-seven sections of land in said county, was organized as a consolidated school district in June, 1921. Consolidated School District No. 162 (commonly known as the Graham district, from the town of Graham therein) adjoins it on the southeast.

On April 5, 1927, an election was held in said districts under the provisions of Revised Statutes Missouri, 1919, section 11201, to detach territory approximately the equivalent of four sections of land from the Skidmore district and attach it to the Graham district. At this election the vote in district No. 136 (exclusive of the detached area) was 319 to 228 in favor of the change in boundaries; in the detached district the vote was twenty-eight to six against the change, and in the Graham district No. 162 the vote was ninety-one to two against the change. After the election an appeal was taken by the school board of the Skidmore district No. 136 to the superintendent of schools, in accordance with Revised Statutes Missouri, 1919, section 11201. The superintendent of schools appointed a board of arbitrators, in accordance with the statute, which board conducted a public hearing on the subject on April 18th, and handed down its decision, ordering the change, and on April 23d the county superintendent accordingly gave notice thereof to the districts involved.

On May 10, 1927, the board of education of the Skidmore district No. 136 adopted a resolution calling for an election to vote a $75,000 bond issue, for the erection and equipment of a school building, and the secretary was directed to post the required notices for the election to be held on May 28th.

This suit was brought by certain taxpayers of said district No. 136, on behalf of themselves and other taxpayers similarly situated, to declare the boundary election void and to enjoin the bond election. The defendants are the two school districts, their members and secretaries, the judges of election, the county superintendent and the board of arbitrators. In their petition plaintiffs allege that the boundary election was void, as having been brought about for the fraudulent purpose of eliminating voters opposed to the desired bond issue; that the appeal to the county superintendent and the board of arbitrators and the order of the latter confirming the boundary change were void for the further reason that a petition for the change was not properly filed in District No. 162, and that the notice of election in the latter district did not designate the polling place.

As to the proposed bond election, the petition alleged as ground for enjoining it that, pursuant to the conspiracy and design of said board of education of District No. 136, many qualified voters would be prevented from voting; that unlawful and increased taxes would be levied, and further, that they were causing the election to be held without proper notice.

The answer puts in issue the various matters in controversy, alleging various facts in support of the regularity of the proceedings, and the reply is a general denial. Upon trial of the cause the court, on June 13, 1927, found the issues for the defendants, and denied the relief prayed for. From this judgment plaintiffs took their appeal to the Supreme Court, which on June 21, 1928, held that jurisdiction of the appeal rested in the Kansas City Court of Appeals, to which the case was accordingly transferred.

Appellants allege six assignments of error, which may be considered in order.

1. The first is that the court erred in not finding that the change of boundaries was fraudulent, against public policy, arbitrary and unlawful, for the alleged reason that the change was made for the mere factional purpose of disfranchising forty or fifty legal voters, and enabling those left to vote a bond issue.

There is no claim or evidence that the election itself was not fairly conducted in accordance with the law. The only fraud alleged is that of the motive of those who sought the change. To sustain this allegation the clerk of Consolidated School District No. 136, who was shown to have prepared the petition, was examined as to his motives in fixing the boundaries as he did. This was irrelevant. The signers of the petition are not bound by the motives of the clerk, which are not imputable to them. Neither can their own motives be subject to impeachment by the courts, if their procedure was in accordance with the law. The petition merely formed the basis for calling the election, at which the voters of the district were free to cast their votes pro or con on the question of the boundary change; each according to his own conscience, without having his motives subject to question by any man.

The rule asserted as applicable by appellants, that the acts of boards and municipal bodies, unlike those of the legislature in its governmental functions, are subject to review by the courts, is not in point here. The school board here followed the general law in calling an election when a petition in due form was presented to them; and it was not their act, but that of the independent voters, which decided on the change.

2. The second assignment of error is that the change was in violation of the provisions of Revised Statutes 1919, section 11201, as being "for revenue only" and "simply for the acquisition of territory."

In view of the fact that the initiative for and the favorable vote in favor of the change was in District 136, which is losing territory and revenue, and that District No. 162, which is gaining both territory and revenue, voted against the change, this assignment cannot be held to be well-founded.

3. The appeal to the county superintendent and the hearing before the board of arbitrators appointed by him appear to have been strictly in accordance with the law under section 11201. The arbitrators were disinterested taxpayers of the county, nonresidents of the school districts affected. All the testimony is that the hearing was openly and fairly conducted, with an opportunity and "equal chance" given to all interested parties to be heard. No complaint is made as to the fairness or integrity of the arbitrators. At the trial of this case plaintiffs sought to show by the testimony of parties present at the appeal hearing that the chief or only ground alleged before the arbitrators by proponents of the change was their desire to exclude certain voters unfavorable to a bond issue for a new school house. This evidence, which was admitted over the objection of respondents, was met by counter-evidence as to the motives of those who opposed the...