Tucker v. McKay
111 S.W. 867
Mo. Ct. App.
1908
Check Treatment
BLAND, P. J.

On August 15, 1906, рlaintiff filed Ms suit against defendants as directors of School District No. 3, township 19, range 8, in Clark county, Missouri, to prevent them from removing the schoolhouse of the district to another site therein. A temporary restraining order was granted. On final hearing a peremptory writ was denied and the cause dismissеd at plaintiff’s cost.

At the annual school meeting held in the district on April 1, 1906, the clerk of the district made the following minutes of what took place: “Thе house was called to order by Wm. McKay. First tMng in order was to elect a chairman, John McKay being elected. The next thing in order was to elect a secretary, thereon George LaBonta was elected. The next thing in order was the reading of the minutes of the previous meetings; minutes wеre received. Next thing in order was the reading of the county ‍‌​‌‌​‌‌​‌​‌​‌​​​​‌‌‌​‌‌​​‌‌​‌‌​‌‌​​​​‌‌‌‌‌‌​​​​‌‍treasurer’s report to the school clerk; approved. Next tMng was the nominаtion of a director for a term of three years. Next it was voted to have an eight months’ term of school; next it was voted to dispense with register; next it was voted to move school house; carried. The chair appointed Jake Friend, Hubert Felker and James Tucker a committeе on wood. Committee reported six cords of wood needed, whereby John Kilkenny puts the wood on the schoolhouse ground for $3.10 per cord.”

Over plaintiff’s objections defendant proved by oral evidence that there were thirty-seven voters of the district present at the meeting; thаt on the proposition to move the schoolhouse the vote was by ballot and resulted in twenty votes for removal and seventeen against removal; that after the vote was taken some one asked, about providing the necessary funds for moving the house, whereupon two of thе voters present stated they would pay all the expense of moving the house and on *731this promise the question of procuring funds ‍‌​‌‌​‌‌​‌​‌​‌​​​​‌‌‌​‌‌​​‌‌​‌‌​‌‌​​​​‌‌‌‌‌‌​​​​‌‍for the purpose by the district was dropped.

A quitclaim deed, dated August 6,1906, from Jacob Friend and wife, duly executed and acknowledged, conveying a schoolhouse site to the district was read in evidence. Friend testified he sent the deed to be recorded but no certificate of record was on, or appended to, the deed, and the evidence shows the board of trustees have never formally accepted the deed. The evidence shows that the site conveyed by Friend is in the center of the district. Plaintiff, being a resident of and owner of taxable property in the district, hаd a right to bring the suit.

Plaintiff contends that the' minutes of the school meeting do not show that a majority of the voters in the district voted to change the site оf the schoolhouse, and for this reason the removal should have been enjoined. Subdivision 11, sec. 9750, R. S. 1899, provides, “that in every case ‍‌​‌‌​‌‌​‌​‌​‌​​​​‌‌‌​‌‌​​‌‌​‌‌​‌‌​​​​‌‌‌‌‌‌​​​​‌‍a majority vоte of the voters who are resident taxpayers of said district shall be necessary to remove a site nearer the center of said district.” The evidence tends to show that the site voted for was nearer the center of the district than the old one. In Richardson v. McReynolds, 114 Mo. 641, 21 S. W. 901, it was held thаt this subdivision means a majority of the taxpayers of the district, present and voting at the election. See also State ex rel. Bassett v. Mayor оf St. Joseph, 37 Mo. 270.

2. No provision was made by the district to provide funds for the removal; for this reason it is contended the vote to move was incomplete and did not authorize the defendant trustees to move the house to the new site. As no fund to move the house ‍‌​‌‌​‌‌​‌​‌​‌​​​​‌‌‌​‌‌​​‌‌​‌‌​‌‌​​​​‌‌‌‌‌‌​​​​‌‍was provided for at the meeting, its removal cannot be made a charge to the district; but as two of the voters present agreed to pay the expense of the rеmoval if the trustees are willing to incur the risk of the removal on that promise, *732we know of no reason why a court should enjoin the exercise оf their faith in the premises, especially when, as in this case, it seems to be well founded.

3. The deed conveying the new site to the school district was executed on August sixth but was not acknowledged until August sixteenth. The petition was filed on August 15, 1906, and a notice to defendants, dated August twentieth, of plaintiff’s intentiоn to apply for a temporary restraining order, is found in the record but there is no return showing that it was ever served. Because the petition wаs filed before the deed was acknowledged, it is contended that defendants could not accept the deed. The minutes of the proceedings of the trustees do not show ‍‌​‌‌​‌‌​‌​‌​‌​​​​‌‌‌​‌‌​​‌‌​‌‌​‌‌​​​​‌‌‌‌‌‌​​​​‌‍that the deed has been accepted by them for the district. They have perhaps held their accеptance in abeyance to await the result of this suit. It appears the deed is ready for delivery whenever defendants can take it withоut being in contempt, or apparent contempt, of court, and we can see no reason to enjoin them from accepting the donation of the site, even if the action of the voters at the April election, 1906, to move the schoolhouse should turn out to be illegal, for they might hereafter act in a legal manner and move the house to the new site.

4. The statute (sec. 9750) provides for an annual meeting of the voters of school districts, to be organized “by the election of a chairman, and a secretary who shall keep an accurate record of the proceedings of the meeting, which, when approved and attested by the signature of. the chairman, the clerk shall enter uрon the record of the district.” It is insisted that the record kept of the proceedings at the meeting are incomplete, inaccuratе and insufficient to show that a proper vote was taken to move the schoolhouse. The statute does not undertake to state in what fоrm the minutes shall be kept, nor to specify what details or particulars of the meeting shall be recorded. In this instance, as at *733most annual schоol meetings, the clerk recorded the several subjects, brought before the assembly for its determination and recorded the result of the aсtion. It is not pretended that the record is not accurate as far as it goes, but that it does not go far enough to show the assembly voted to mоve the schoolhouse. The minutes read that “it was voted to move the schoolhouse; carried.” This entry shows the proposition was voted on and that a majority voted in favor of moving the schoolhouse. The record should have shown how the vote was taken and the number of votes cast for and against removal. But the fact that the- clerk of the meeting failed to make as full a record as he should have made, when what he made is accurate and states the result of the election, should not be given the effect to defeat the will of the majority voting at the election, and we think it was competent to prove by oral testimony what actually took place at the meeting and to show that the rеcord of the result of the election made by the clerk was correct. Such minutes are evidence but they are not conclusive and may, in a proper case, be aided or contradicted by parol evidence.

No reversible error appearing on the record, the judgment is affirmed.

All concur.