Williams v. School Dist. No. 5

• Decision Date: 02 December 1912
• Citation: 167 Mo. App. 476,151 S.W. 506
• Parties: WILLIAMS et al. v. SCHOOL DIST. NO. 5 et al.
• Court: Missouri Court of Appeals

151 S.W. 506

167 Mo. A. 476

WILLIAMS et al. v. SCHOOL DIST. NO. 5 et al.

Springfield Court of Appeals. Missouri.

December 2, 1912.

1. SCHOOLS AND SCHOOL DISTRICTS (§ 111) — TAXPAYERS' ACTION — RESTRAINING REMOVAL OF SCHOOL BUILDING — PLEADING — INJURY TO PLAINTIFF.

Resident taxpayers of a school district, in order to enjoin the district and its directors from removing a school building, must allege and prove that from defendant's acts their property rights are about to suffer a legal injury. It is not sufficient to merely allege injury without stating the facts, and, where the injuries are alleged to be irreparable, the petition must show in what respects it is irreparable, stating the facts from which the court can determine the nature of the injury.

2. INJUNCTION (§ 12) — GROUNDS OF RELIEF — IRREPARABLE INJURY.

A court of equity may enjoin a threatened irreparable injury to property rights, even though no injury has then occurred.

3. SCHOOLS AND SCHOOL DISTRICTS (§ 111) — TAXPAYERS' ACTION — REMOVAL OF SCHOOL BUILDING.

Under Rev. St. 1909, § 2534, which provides that threatened irreparable injury to property may be enjoined when there is no adequate remedy by an action for damages, taxpaying residents of a school district may restrain the district, or its officers, from exceeding their lawful powers in any way that will injuriously affect them, such as by an unauthorized removal of a school building.

4. SCHOOLS AND SCHOOL DISTRICTS (§ 111) — ACTION TO ENJOIN SCHOOL DISTRICT AND OFFICERS — TITLE OR RIGHT OF PLAINTIFF — TAXPAYERS.

An injunction will not lie to restrain improper or unlawful acts by a school district or its officers at the suit of a resident merely, but it must be averred that the plaintiff is also a taxpayer.

5. SCHOOLS AND SCHOOL DISTRICTS (§ 111) — ACTION TO ENJOIN SCHOOL DISTRICT AND OFFICERS — SPECIAL DAMAGE TO PLAINTIFF.

In the absence of proof that plaintiff, seeking to enjoin alleged illegal acts of the school district or its officers, in removing a school building, will sustain an irreparable or special or pecuniary damage therefrom, such act will not be enjoined.

6. SCHOOLS AND SCHOOL DISTRICTS (§ 111) — TAXPAYERS' ACTION — PLEADING — GENERAL DENIAL — MATTERS IN ISSUE.

Allegation, in a petition to enjoin the removal of a school building, that the plaintiffs were resident taxpayers of the district, and that the removal of the building was unauthorized, would, if true, show that plaintiffs had a special interest in the subject-matter entitling them to an injunction, and such allegation, being an essential one, would be put in issue by a general denial.

Cox, J., dissenting.

Appeal from Circuit Court, Pulaski County; L. B. Woodside, Judge.

Action for injunction by Grant Williams and others against School District No. 5 and H. F. Cadwell and another, directors. From an order making a temporary injunction perpetual, defendants appeal. Reversed and remanded.

Bland, Crites & Murphy, of Rolla, for appellants. W. D. Johnson, of Crocker, F. H. Farris, of Rolla, and G. W. Goad, of Springfield, for respondents.

NIXON, P. J.

This was an action for an injunction against School District No. 5 and its school directors for the purpose of enjoining and restraining them from moving a schoolhouse from an old to a new site. A temporary injunction was issued by the probate court and upon final hearing in the circuit court was made perpetual, from which the defendants appealed.

The petition for the injunction states, in substance, for plaintiffs' cause of action that the school district was properly organized under the laws of the state of Missouri, and that the defendants Cadwell and Joiner were the directors of the district; that on the 13th day of June, 1911, Cadwell, as one of the school directors, without authority of law, called a special election in said school district to select a site for the schoolhouse; that an election was held pursuant to said call on the 27th day of June at which it was voted to move the schoolhouse to a new site at or near the French road on the Iberia and Crocker road; that there was no notice whatever given of said election; that the defendants as directors were threatening illegally to move the schoolhouse to the proposed site, which was on one side of the school district and away from its center and a site to which the district had no title or interest, to the hindrance of the children of school age of the plaintiffs; also, that the threatened removal of the schoolhouse to said site would cause irreparable injury to plaintiffs who are resident taxpayers of said school district; and that said directors threatened to remove said schoolhouse and pay for the removal of the same out of the sinking fund in direct violation of law; and that the plaintiffs are without remedy at law. The defendants for answer filed a general denial.

Appellants present to this court only one alleged error, namely, that the plaintiffs failed to show by their evidence that they were entitled to maintain the action.

It will be seen from the face of the petition that the plaintiffs do not assume to sue in a special or representative capacity, but in their own individual right, so that if the defendants had filed a special demurrer under section 1800, R. S. 1909, on the ground that the petition did not show that the plaintiffs had any legal capacity to sue, it would not have raised an issue of law; and if the defendants had filed an answer denying specially the legal capacity of the plaintiffs to sue, under section 1804, R. S. 1909, it would not have raised an issue of fact as to plaintiffs' legal capacity to sue. Under the pleadings neither in the trial court nor in this court has the legal capacity of the plaintiffs to sue been properly challenged by the defendants. The defendants having filed an answer denying the allegations of plaintiffs' petition, the plaintiffs were put to the proof of the constituent facts of their cause of action.

In order to recover in actions of this kind, the plaintiff must allege and prove the existence of his right, and also must affirmatively show that defendant's acts sought to be restrained will be in violation thereof; in other words, he must...