Opinion
March 8, 1939.
1. JURISDICTION: Title to Real Estate. In an action to condemn vacant lots adjacent a school site for school purposes in a town the title to real estate is involved giving the Supreme Court jurisdiction of the appeal.
2. EMINENT DOMAIN: Additional School Grounds. Under the provisions of Section 9215, Revised Statutes 1929, it is the duty of the board of education of a town school district to determine whether grounds additional to a school site are needed for school purposes, and that statute gives authority to a board of education to condemn land for additional school grounds.
Section 9333, Revised Statutes 1929, provides that the board of education of any town, city or consolidated district shall perform the same duties as the boards of school districts acting under the general law; by this reference the general school law, said Section 9215, is incorporated into a statute relating to town and consolidated school districts.
3. SCHOOL DISTRICTS: Condemnation. In an action to condemn land adjacent a school site for school purposes under Section 9215, Revised Statutes 1929, on a trial by jury on the exceptions to a report of condemnation assessing damages, the definition on the words "clear market value" in an instruction as actual cash value, was not prejudicial.
Appeal from Clinton Circuit Court. — Hon. R.B. Bridgeman, Judge.
AFFIRMED.
Julian L. O'Malley and V.E. Phillips for appellants.
(1) The trial court erroneously directed the appeal to the Kansas City Court of Appeals. Appellants' objections were to the power of the plaintiff to proceed in condemnation and to the sufficiency of the petition to show a right to condemn real estate until money was on hand. These objections raise points other than the damages and constitute a proceeding in which title to real estate is involved. The cause should be transferred to the Supreme Court. Thompson v. Chicago, Santa Fe California Ry. Co., 110 Mo. 147; Thomas v. Craghead, 332 Mo. 211, 57 S.W.2d 281; St. Louis v. Franklin Bank, 98 S.W.2d 534. (2) City, town and consolidated school districts have only such power to condemn land as is set forth in Section 9333, Revised Statutes 1929. Such statute specifically authorizes boards of education in city, town and consolidated school districts to condemn lands "for such purposes as herein expressed." This section does express purposes for cities having a population of 1000 persons or more. Gower, Missouri, has a population under 1000 inhabitants, consequently the statute fails to express the purposes for which a school district having a city of less than 1000 inhabitants may condemn land, and the plaintiff in this case is without authority to proceed "to enlarge its present school site" as stated in its petition. Sec. 9333, R.S. 1929; Laws 1913, p. 721; Art. IV, Chap. 57, R.S. 1929. (3) Section 9333, Revised Statutes 1929, is defective and fails to give power to boards of education of any town, city or consolidated school district having in it a city of less than 1000 inhabitants to condemn land, but the statute specifically requires that in any proper case of condemnation the board of education shall pay for grounds condemned only "out of the revenues of such school district on hand and provided for such purposes under the Constitution and laws of said State." Sec. 9333, R.S. 1929. (4) The court erred in its instructions concerning damages in its attempted submission of the case to the jury on the matter of damages and particularly in plaintiffs' instructions 1, 2, 3 and 4. State v. Darling, 202 Mo. 165, 100 S.W. 631; State ex rel. Highway Comm. v. Farmer's Estate, 68 S.W.2d 724; 20 C.J., p. 727.
D.F. Bennett for respondent.
(1) Consolidated school district, such as respondent, under the provisions of Section 9215, Revised Statutes 1929, is delegated and clothed with the power of eminent domain for condemnation of lands for school purposes, by authorizing their board of directors to proceed in the same manner prescribed by the statute, Chapter 7, Article II, Revised Statutes 1929, for the condemnation of right of way. Sec. 9215, R.S. 1929; Chap. 7, Art. II, R.S. 1929; State ex rel. Highway Comm. v. Gordon, 36 S.W.2d 105, 327 Mo. 160; Corley v. Montgomery, 46 S.W.2d 288; State ex rel. Highway Comm. v. Huddleson, 52 S.W.2d 33; R.C.L. 10, p. 11; Session Acts 1929, p. 384. (2) Where the question of jurisdiction is based only upon the right to condemn, and determine the incidental damages, the title to real estate is not involved, and this appeal is properly before this appellate court for review. Mo. P. L. Co. v. Creed, 30 S.W.2d 605, 325 Mo. 1194; Nettleton Bank v. McGauhey's Estate, 2 S.W.2d 771, 318 Mo. 948; State ex rel. Piepmeier v. Camren, 33 S.W.2d 913; State ex rel. Highway Comm. v. Day, 35 S.W.2d 37; State ex rel. Highway Comm. v. Brown, 95 S.W.2d 664; Miller v. Connor, 250 Mo. 677, 157 S.W. 81. (3) The cardinal rule to be followed in the construction of a statute is to arrive at the legislative intent, and rules for the interpretation of a statute are only intended to aid in ascertaining the legislative intent, and not for the purpose of controlling the intention, or of confining the operation of the statute within narrow limits than was intended by the lawmakers. Fischbach Brewing Co. v. St. Louis, 95 S.W.2d 338; Sutherland on Statutory Construction (2 Ed.), secs. 456, 864, 471, 883; Corley v. Montgomery, 56 S.W.2d 283; Wallace v. Woods, 102 S.W.2d 95; Session Act 1929, p. 384; Session Acts 1913, p. 714; State ex rel. v. District, 310 Mo. 258, 274 S.W. 1073.
Plaintiff is a consolidated school district of Clinton County and the schoolhouse is in the town of Gower, having a population of three hundred seventy-eight. Under Section 9215, Revised Statutes 1929, of the general school law, said district sought to condemn vacant lots one to six, inclusive, block twenty, original town of Gower. The defendant Bessie O'Malley owned said lots. Patrick J. O'Malley is defendant as the husband of Bessie O'Malley. Judgment was entered condemning the lots as additional ground adjacent to the school site and for school purposes. In due course the court appointed commissioners, who filed a report in which they fixed the value of the lots and defendants' damages at $635. Plaintiff filed exceptions to the report. Defendants filed answer and also filed exceptions to the report. On a trial the jury fixed the value of the lots and defendants' damages at $400. Judgment was entered for defendants for $400 and they appealed. In this connection it should be stated that the vacation of the street and alley between the lots and the schoolhouse site is not involved in this suit.
The answer challenged the authority of plaintiff to condemn the lots. It follows that the title to real estate is involved and this court has appellate jurisdiction. [State ex rel. Palmer et al. v. Elliff et al., 58 S.W.2d 283, 284; Richter v. Rodgers et al., 327 Mo. 543, 37 S.W.2d 523; State ex rel. State Highway Commission v. Gordon et al., 327 Mo. 160, 36 S.W.2d 105.]
I. Defendants contend that neither Section 9215 nor any other section of the statutes authorizes plaintiff to condemn the lots as additional grounds for school purposes. Section 9215 follows:
"Whenever any district shall select, at the annual or any special meeting, one or more sites for one or more schoolhouses, or the board of education in city, town or consolidated school district, under the provisions of the statute applicable thereto, shall locate direct and authorize the purchase of sites for schoolhouses, libraries, offices and public parks and playgrounds, or additional grounds adjacent to schoolhouse site or sites, and cannot agree with the owner thereof as to the price to be paid for the same, or for any other cause cannot secure a title thereto, the board of directors or board of education aforesaid may proceed to condemn the same in the same manner as provided for condemnation of right of way in Article 2, Chapter 7, R.S. 1929, and upon such condemnation and the payment of the appraisement, as therein provided, the title of said lot or land shall vest in the board of directors or board of education aforesaid for use in trust for the district and the purposes for which the same was so selected and located. All laws or parts of laws in conflict with this law are hereby repealed." (Italics ours.)
It should be noted that, by implication, this section makes it the duty of the board of education to determine if additional grounds are needed for school purposes.
Defendants direct attention to the italicized part of said section as follows: "under the provisions of the statute applicable thereto." They argue that said provision directs the board of education to the statute relating to city, town and consolidated districts for authority to condemn land for additional school grounds. We think defendants are correct in thus construing said provision. But on referring to the statute relating to city, town and consolidated school districts we find Section 9333, which in part follows: "The board of education of any town, city or consolidated school district shall, except as herein provided, perform the same duties and be subject to the same restrictions and liabilities as the boards of other school districts acting under the general school laws of the state."
The said section, 9333, then proceeds to authorize the board of education in certain cities to establish and maintain separate libraries, public parks and playgrounds for white and colored persons. It limits the money for such purposes according to population and provides that the district must have money on hand for said purposes. This part of said section does not authorize plaintiff to condemn the lots.
Even so, the quoted part of Section 9333 provides that the board of education of a consolidated school district shall perform the same duties as the boards of school districts acting under the general school law. In other words, Section 9215 of the general school law, by this reference, is incorporated into the statute relating to city, town and consolidated school districts. If so, plaintiff was authorized by Section 9215 to condemn the lots in question for school purposes.
II. Defendants also contend that instructions using the words "clear market value," "actual cash market value," and "actual cash value" were prejudicial. We do not think so. Instruction No. 3 correctly defined "market value" as the measure of damages. For this reason, and under the facts of this case, the use of the challenged words in other instructions could not have been prejudicial.
The judgment should be affirmed. It is so ordered. All concur.