Opinion
No. 21871.
March 16, 1953.
APPEAL FROM THE CIRCUIT COURT, WORTH COUNTY.
Ellis Beavers, Grant City, for appellant.
J. Door Ewing, Maryville, for respondents.
This is a proceeding in mandamus, instituted in the circuit court of Worth County by relators against appellant Thompson as County Superintendent of Schools of Worth County, to compel him to join with the Superintendent of Schools of Nodaway County in appointing a Board of Arbitration to settle a controversy arising from a school election, as hereinafter mentioned. An alternative writ was issued and, on final hearing, the writ was made peremptory and Thompson appealed.
Among other things, the petition and the alternative writ allege that Reorganized School District R-1 is a consolidated district within Worth County; that a described portion of said district lies on the west side of the west fork of Grand River, and that said west fork of Grand River interferes with the free access of school children from said territory to the remaining portions of said district, including access to the schoolhouse within said district; that Parnell Consolidated School District C-57 is a district lying within Worth and Nodaway Counties and is immediately adjacent on the west and contiguous to District R-1 and to that portion of the territory of District R-1, which is sought to be detached from R-1 and attached to C-57; that at the regular annual school election of 1952 a majority of the voters of District R-1 voted against such detachment and a majority of the voters of District C-57 voted in favor of such detachment; "That thereafter and within ten days after said election" the relators and other qualified voters and taxpayers filed with appellant Thompson and the Superintendent of Schools of Nodaway County their written appeal and requested that a Board of Arbitration be appointed by said superintendents; that said Superintendent of Schools of Nodaway County joined in said request, but that Superintendent Thompson refused to join in such appointment, as provided by law; and prayed that a writ of mandamus be issued commanding him to do so. The alternative writ was issued.
The return to the writ denied that there was any authority at law for changing the boundaries "between a reorganized district and a consolidated district," but admitted "that the west fork of Grand River is a running stream within Worth County * * *; that the territory sought to be detached from District R-1 to District C-57 lies on both the east and west banks of said stream * * *," but denies that the west fork of Grand River interferes with the free access from and to the territory to be detached, and in no way interferes with the free access from said territory to the schools provided for the children residing in said territory.
The record discloses that an election was held in Districts R-1 and C-57 at the regular annual school meeting in April, 1952, under the provisions of section 165.170, RSMo 1949, V.A.M.S. and particularly under paragraph (3) thereof; that a majority of the voters of District C-57 favored the proposition submitted, and a majority of the voters of District R-1 opposed the proposition. Said section provides that when such a situation arises "the matter may be referred to the county superintendent of public schools; and upon such appeal being filed with him, in writing, within five days after the annual meeting, he shall appoint four disinterested men, * * *" as a Board of Arbitration "to consider the necessity for such proposed change and render a decision thereon, * * *." Paragraph (3) of this section provides that, when the election involves school districts lying in two counties, as in the instant case, the appeal shall be taken to the school superintendents of the respective counties, and that such appeal shall be taken "as herein provided, * * *." The quoted clause relates to the requirements set out in paragraph (1) of said section, one of which is that the appeal be filed within five days.
One of appellant's contentions is that there is no proof in the record that a timely and proper appeal was made to him as Superintendent of Schools of Worth County. This might not be a serious matter if the petition and alternative writ had alleged facts tending to show that a proper and timely appeal had been taken and that such allegation had not been denied in the return, because it is well settled that all matters properly pleaded and not denied in the return are admitted to be true; State ex rel. William R. Compton Co. v. Walter, 324 Mo. 290, 23 S.W.2d 167, 172; State ex rel. Bliss v. Grand River Drainage District, 330 Mo. 360, 49 S.W.2d 121; however, in the instant case, the petition and writ affirmatively allege that the appeal was taken "within ten days after said election * * *." If the appeal was not taken within five days, as required by the statute, then the appellant (superintendent) did not acquire jurisdiction of the matter and could not act.
In State ex rel. School District v. Andrae, 216 Mo. 617, 636, 116 S.W. 561, 565, the court said: "The petition for appeal is the document upon which the superintendent first acts. If this petition shows that there has been a valid election held in the two interested districts upon the question submitted, and that one district voted in favor of the proposition and the other against it, and this appeal is taken within 5 days, then the superintendent acquires jurisdiction of the matter and can act." See, also, State ex rel. Smart v. Wilson, 99 Mo.App. 675, 74 S.W. 404. It is true the court found, in both cases, that the appeal had been taken within the five day period, but they both recognize the proposition that the superintendent acquires no jurisdiction to appoint a Board of Arbitration unless a proper and timely appeal is taken.
In the instant case the relators seek, by mandamus, to compel Superintendent Thompson to join with the Superintendent of Schools of Nodaway County in the appointment of a Board of Arbitration, when it does not affirmatively appear that the appeal was taken within the time prescribed by statute. Under such circumstances, the superintendent would have no jurisdiction to act and, of course, could not be compelled to do so by mandamus.
It is possible that the allegation in the petition and writ, that the appeal was taken within ten days after the election, is due to an error in the transcript when in truth and in fact the appeal was taken within five days after the election. If such is a fact, then the relators should have an opportunity to amend the petition and writ accordingly, and to plead and prove that a proper petition for appeal was filed within five days, as required by the statute, and have a hearing on the merits. However, if the appeal was not filed within five days after the election the court should, upon a proper motion, quash the writ heretofore issued.
The judgment is reversed and the cause remanded for further proceedings in accordance with this opinion.
All concur.