
    Lucius Leavitt et al., appellants, v. Sigel Matson et al., appellees.
    Filed June 5, 1915.
    No. 18897.
    1. Softools and Softool Districts: Selection of Schoolhouse Site. Softool boards should act fairly and impartially in tfte matter of allowing tfte electors of a Softool district an opportunity to express their desire as to tfte site for a proposed new schoolhouse.
    2. —: —: Fraud: Issuance of Bonds: Injunction. Evidence held not to establish such fraud, discrimination or fraudulent representation as to tfte site upon which a proposed schoolhouse would be built as to render it tfte duty of a court to enjoin tfte issuance of bonds voted for tfte purpose of erecting and furnishing a school building.
    Appeal from the district court for Lancaster county: Willard E. Stewart, Judge.
    
      Affirmed.
    
    
      A. G. Wolfenbarger and H. S. Lower, for appellants.
    
      Morning & Ledwith, contra.
    
   Letton, J.

The plaintiff is a resident taxpayer of school district No. 139, Lancaster county, and the defendants are the members of the school board of the district. The purpose of the action is to enjoin the board from issuing $20,000 in bonds of the school district voted for the purpose of building and equipping a schoolhouse, and to declare that the election called for the purpose of submitting to the voters the question of issuing such bonds and an election called for the purpose of moving the site of the schoolhouse, both held upon the 18th day of June, 1914, be declared to be void and of no effect. The main reasons alleged are defects in the notices; that a number of the voters were not qualified; that the signatures of a sufficient number of the signers to the petition for the election to vote bonds and of votes to carry the bonds were obtained by false statements and fraudulent misrepresentations; and that the “Hillcrest” petition was collusively prevented front being submitted to a vote.

Tbe facts seem to be that in February, 1914, a petition was filed asking that an election be called upon tbe question of issuing bonds in the sum of $25,000 for tbe purchase of certain lots in Hillcrest addition to Betbany and to build and equip a scboolbouse thereon. Tbe board refused to call this election, when one Britt began a mandamus proceeding to compel such action. Tbe district court granted tbe writ with certain modifications. Britt appealed to this court, where tbe judgment of tbe district court was reversed and tbe action dismissed. Pending the appeal, a petition was circulated and filed with tbe board asking that an election be called to change tbe scboolbouse site to tbe “Hillcrest” site, and another petition asking tbe board to call an election to submit a proposition to vote $20,000 in bonds to erect and furnish a scboolbouse. A great difference of opinion and lack of harmony developed among tbe voters with regard to tbe proposed change of site, residents of tbe northern portion of tbe village desiring one site, and those living in tbe southern part another. At tbe request of a number of citizens tbe school board informally appointed six persons as “a mediation committee.” This committee finally recommended and petitioned tbe board to call an election to change tbe scboolbouse site to certain lots in block 42 of tbe original plat of Betbany Heights, known as tbe “Swiger block.” Tbe board then laid tbe “Hillcrest” petition upon tbe table, and at the same meeting called an election to vote upon tbe “Swiger block” site, at tbe same time and place as tbe bond election, to wit, June 18, 1914. At tbe appointed time tbe school meeting took place and tbe elections were held. Tbe proposition to vote bonds was carried, and that to change the site of tbe scboolbouse was defeated.

It is these elections that tbe plaintiff desires to have declared null and void. Tbe principal contentions now made seem to be that tbe board acted fraudulently in tabling tbe petition to call an election submitting tbe “Hill-crest” site to a vote and substituting tbe petition by tbe “mediation committee” for a vote upon the “Swiger block” site, and in representing, by themselves and their associates, to the voters that if the bonds carried the money would be used to build a schoolhouse on the “Swiger block.” As matters now stand, bonds have been voted, but no new site selected. Plaintiff fears that the new building will be erected on the old site. The petition to call an election on the “Hillcrest” site is still npon the table.

Many witnesses for the plaintiff show by their testimony that it was their understanding that if the bonds were voted the schoolhouse would not remain upon the old site, but would be built upon the “Swiger block;” but it is equally clear that many of the-voters understood that both questions were to be voted upon at the same time. Indeed, some of these witnesses voted for the new site and against the bonds, some for the bonds and against the site, and some for both propositions. Those who desired the change probably had sufficient confidence to believe that both proposals would carry; but it is a common experience that confidence as to the result of an election is often misplaced — the site might be selected and the bonds defeated, or the proposition to issue bonds carry and the change of site be defeated. We have been unable to discover any fraudulent acts or representations which would justify a reversal of the judgment of the district court.

Contentions between voters living in various portions of school districts as to schoolhouse sites are not uncommon. School boards should in such matters act fairly and impartially, giving ample opportunity for the voters to indicate their preference. The inference is drawn — as to a few witnesses perhaps properly — that because the petition for the “Hillcrest” site was circulated at the same time as the bond petition, and partly at least by the same persons, the petitioners and voters were deceived. The very appearance of evil should be avoided. We have so far not been convinced that the board is desirous of thwarting the will of the majority. As suggested by the district court, the question as to where the schoolhouse shall be located is still an open one. The chairman of the board testified that if a vote was desired on the “Hillcrest” proposition it conld be had. It is within the power of the school board to take from the table the petition to call an' election upon the “Hillcrest” proposition and to submit the matter to the voters within the next 40 days.

The judgment of the district court is

Affirmed.

Rose, Sedgwick and Hamer, JJ., not sitting.  