45 Mo. App. 660 | Mo. Ct. App. | 1891
— This is an action brought by the plaintiff against the defendant, a school district, in the county of Henry and state of Missouri, on a school bond, and certain interest coupons thereto attached, aggregating $1,980. Plaintiff alleges that same was issued under authority of laws of Missouri, Acts, 1881, page 201, to rebuild schoolhouse for defendant, and the money used therefor, and that he is the owner and holder for value, without notice before maturity; that defendant paid the first two installments of interest, and that the bond and all interest coupons are now due and unpaid. Defendant’s answer is a general and special denial. The case, however, turns solely on the action of the court in sustaining the demurrer of the defendant at the close of plaintiff’s evidence. It was admitted, first, that plaintiff is the owner and holder of the bond and coupons sued on, and that he purchased the same for value before maturity. Second. That defendant is a corporation, a school district, organized under the laws of the state of Missouri, and that the signatures to the bonds are Lycurgus L. Kensinger and Emanuel Bushnell, who were respectively president and clerk of said district at the time said bonds were issued. Third. That $1,500 was paid the district, and used in the building of the schoolhouse. The record of the school district was introduced into evidence as follows :
“ Calhoun, Mo., March 8, 1884.
“Board of Education met by call of the president.
“Present, L. L. Kensinger, J. O. Edmonson, J. Medberry, E. Bushnell. Absent, M. Reeves and R. Kirkpatrick. Minutes of last meeting read, and stand
“ On the usual motion, the board adjourned.
“L. L. Kensing-ek,
“E. Bushnell, . President.
“Clerk.
“Page 129.”
“Calhoun, Mo., April 2, 1884.
“Board of Education met by call of the president.
“Present, L. L. Kensinger, J. Medberry, J. O. Edmonson and E. Bushnell. Absent, M. Reeves and R. Kirkpatrick. Minutes of the last meeting read and approved. The object of the meeting was to record the result of an annual election and qualify directors elected. It was announced that J. W. Gedney and L. L. Kensinger were elected to serve for three years, term to expire at the annual election, 1887. The above-named directors elect were duly qualified to act as directors for district number 7, Calhoun. Account for judges and clerks of election was presented to the board and allowed; warrant ordered to be drawn for amount
“L. L. Kensingee,
“E. Burhnell, President.
“ Clerk.’
And it was then admited by the defendant that the record offered in evidence was all the records in the possession of the school distl’ict touching said question of the issuance of said bonds.
The bond sued on was offered in evidence which contained the following recitals: “ This bond is issued for the purpose of erecting a schoolhouse in said district, pursuant to an order of the board of directors, of said district, made on the eighth' day of March, A. D. 1884, and is authorized by a two-thirds majority of the votes cast at a special election held in said district on the first day of April, A. D. 1884, under and in accordance with the provisions of article 1, chapter 150, sections 7032 and 7033, of the Revised Statutes, of the state of Missouri of 1879, as amended by the Session Acts of 1881, which have been fully complied with in the issuance of this bond.
“In testimony whereof the said Calhoun school district number 7, township 43, ranges' 24 and 25, of Henry county, Missouri, has executed this bond by the president of the' board of directors of the said school district under the order of said board, signing his name hereto and to the coupons hereto attached, as such
“Lycueg-us L. Kens ingee,
‘ ‘ President of the Board of Directors of school district number 7, township 43, ranges 24 and 25, of Henry county, Missouri.
“Emanuel Bushnell.
“Clerk of school district number 7, township 43, ranges 24 and 25, of Henry county, Missouri.”
Kensinger and Bushnell who were, respectively, president aud secretary of the school board were dead. Two of the coupons on the bond were paid. There was some parol evidence tending to show that there were notices of the election posted up, but none as to the number of places, or the time of the posting of the same, and also that there was an election held about April 1, 1884. The demurrer to the evidence being sustained, as already stated, the plaintiff took a nonsuit with leave, etc., and, after an unsuccessful motion to set the same aside, appealed here.
I. The act of March 22, 1881, Session Acts, 1881, page 199, conferred upon school districts full power to borrow money for the purpose of building schoolhouses, and to issue bonds for the payment thereof, in the manner therein provided. The act provides: “The question of loan shall be decided at an election held for that purpose; notice of said election shall be given at least twenty days before the same shall be held, by at least six printed or written notices, posted in six public places in the school district where said election shall be held, and the amount of loan required and for what purpose; it shall be the duty of the clerk to sign and post said notices; the qualified voters shall vote by ballot, those voting for the loan shall have on their ballots the words, “ For the loan,” and those voting against
In Smith v. County of Clark, 54 Mo. 58, Judge Napton in speaking of this power remarks that, “it is derived from the law, without which the unanimous vote of every voter in the county or city could not confer it. The law gives the power, but restricts its exercise by requiring an election. The power is not derived from the people of the city or county or township, but from the legislative branch of the state government.” The learned judge states in effect that the purchaser of these commercial securities, issued by municipal subdivisions, is authorized to assume that they have done their duty, as the bonds on their face certify. But the majority of the court in the same case, speaking through Judge Adams, expressly repudiate the statement made
The question which is at last to be decided is whether, upon the entire evidence adduced, the plaintiff showed himself entitled to recover. If the authority is derived from the decision of the qualified voters at an election, instead of from the legislative power of the state, then we must determine whether there has been an election conferring the required authority, whether
There is no question, as we have already seen, but that the lawfully authorized the issue of the bond upon the condition that the qualified voters should express, at an election for that purpose, their decision in favor •of the issue of the same. But is there presented any •evidence that such an election was held? There were no poll books preserved showing the vote at any election. Nor do we discover any evidence that the votes for and against the proposition to issue the bond were received and passed upon by any person authorized to pass upon them and decide whether an election had been carried, and whether the qualified voters had decided in favor of the loan and issue of the bonds to secure the same, unless the record of the board of education furnishes that evidence. Act of March 22, 1881, already cited, amended sections 7031, 7032, 7033 of the Revised Statutes, 1879. These sections, as amended, being part of ■chapter 150, article 1, in relation to schools, are to be construed in connection with the unamended sections of that chapter. Under section 7061, it is provided that the elections authorized [in this chapter may be held at
The judgment will be reversed and the cause remanded.