Opinion
No. 7166.
May 14, 1953.
APPEAL FROM THE CHRISTIAN COUNTY CIRCUIT COURT, CHRISTIAN COUNTY, TOM R. MOORE, J.
John M. Bragg, Ava, for appellants.
Bill Davenport, Ozark, for respondents.
This was a suit for injunction. The petition was filed July 30, 1952. Appellants will hereafter be referred to as plaintiffs and respondents as defendants.
Plaintiffs sought to prevent the holding of a school election. Plaintiffs are common school districts in Christian and Douglas Counties. The school district in Christian County is designated as Number 80. It lies wholly in that county. School District Number 59 lies wholly in Douglas County. The two districts adjoin and were enlarged previously. School District Number R-I of Christian County operates under Section 165.657 to Section 165.707, RSMo 1949, V.A.M.S., inclusive.
In their brief, plaintiffs say that the County Board of Education has no authority to include an enlarged school district in a new plan of reorganization, to add more territory, or change the boundary line of such enlarged district and that the proposed school election to be held, on August 12, 1952, is unlawful and without authority of law. But the petition does not allege how or in what manner the holding of such election is unlawful and will cause plaintiffs to suffer irreparable injury and damage.
The petition should allege the facts, which plaintiffs claim will render the holding of such school election unlawful. Allegations in a petition or other pleading do not prove themselves.
It is alleged in the petition that the voters of plaintiff school districts are greatly outnumbered by the voters of defendant School District R-1. Plaintiffs have contracted with qualified school teachers for the next school year, and plaintiff school districts have a sufficient valuation and attendance (school ?) to maintain a school district. There is nothing in those allegations to show that the School Board of Christian County has violated the law in any respect and should be restrained from holding such school election.
We have carefully examined Section 165.657 to Section 165.707, both in the Laws of Missouri for 1949. They were apparently mostly enacted for the first time by the Missouri Legislature in that year.
Plaintiffs first cite Section 526.030, RS Mo 1949. That was apparently simply a re-enactment of Section 1683, RSMo 1939, and provides for an injunction, when a cloud would be put upon the title of real estate, under certain circumstances. That section also authorizes an injunction to prevent irreparable injury to personal property, when ever a law action will not afford adequate relief. We are unable to see how the alleged action of the Christian County School Board can affect plaintiffs in that manner.
The cases, School Dist. No. 4 v. Smith, 90 Mo.App. 215, and School Dist. No. 61, Tp. 36 N., Range 5 E., St. Francois County v. McFarland, 154 Mo.App. 411, 134 S.W. 673, were decided many years before the Legislature in 1949 undertook to enact Section 165.657 to Section 165.707, RSMo 1949, V.A.M.S., inclusive, and cannot be of value in determining the powers of the School Board of Christian County at the present time.
Sections 165.263 to 165.373, RSMo 1949, V.A.M.S., inclusive, relate to the consolidation of a common school district with a city school district. There is nothing in the petition to show in what manner defendants have done or contemplate doing any wrong to plaintiffs under those sections.
The trial court sustained defendants' motion to dismiss the petition on the ground that such petition failed to allege any unlawful conduct on the part of any of the defendants. Being unsuccessful in their motion for a new trial, plaintiffs have appealed. We see nothing we can do, except to affirm the judgment of the Circuit Court of Christian County.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.