State ex rel. Meriwether v. Campbell

• Decision Date: 27 February 1894
• Citation: 25 S.W. 392,120 Mo. 396
• Parties: The State ex rel. Meriwether, Plaintiff in Error, v. Campbell
• Court: Missouri Supreme Court

25 S.W. 392

120 Mo. 396

The State ex rel. Meriwether, Plaintiff in Error, v. Campbell

Supreme Court of Missouri, Second Division

February 27, 1894

Error to Phelps Circuit Court. -- Hon. C. C. Bland, Judge.

Reversed and remanded.

A. Corse for plaintiff in error.

(1) The law of 1887 (p. 34) was repealed in 1889, and the law as it stood in 1872 was re-enacted. R. S. 1889, sec. 977, Wag. Stat. (1872) p. 1314. (2) The action of the county court in striking out names to the petition and in changing the metes and bounds set out therein, invalidated the incorporation. 131 Pa. St. 368. (3) If the order of incorporation had rejected all the farm lands as surplusage and included in the order only such lands as were laid out in lots, blocks streets and alleys, the order would then have been coram non judice, because it does not appear upon the face of the proceedings that the petitioners consented thereto. State ex rel. v. McReynolds, 61 Mo. 203. (4) It is incompetent for a court to proceed without notice to those whose rights are affected. Cooley on Const. Lim. [6 Ed.], p. 491.

E. Y Mitchell for defendant in error.

(1) The petition should be dismissed; it was not signed by the prosecuting attorney of Phelps county, but by a private person not under any oath of office. The issuance of information is intrusted solely to the discretion of the prosecuting attorney, under his oath of office, for the public good. See article 5, bill of rights, state constitution. State v. Kline, 79 Mo. 515; State v. Roscoe, 80 Mo. 643; State v. Russell, 88 Mo 650; State v. Ransburger, 42 Mo.App. 466. (2) The city was rightfully and legally incorporated. See R. S. 1889, ch. 30, secs. 977, 1579; Kayser v. Trustees, 16 Mo. 88; State ex rel. v. Weatherby, 45 Mo. 17. (3) The county court in the case at bar acted in a judicial, administrative and legislative capacity, and had the right to strike off names from the petition, and change the metes and bounds of the proposed city. Woods ex rel. v. Henry, 55 Mo. 560. (4) The incorporation of agricultural lands exceeding five acres will not invalidate the corporation, for the petition nowhere avers that said lands had not been by recorded plats or sale reduced to less than five acres. R. S. 1889, sec. 1580. (5) By the laws of 1887, page 34, section 4385a, provisions for the incorporation of agricultural lands to the extent of two miles are made, and such statute has never been repealed, but is still in force. R. S. 1889, secs. 6606, 6607.

OPINION

Sherwood, J.

The prosecuting attorney of Phelps county filed, ex officio, his information, in which he charges defendant with usurping, intruding into and unlawfully holding and exercising the office and franchise of mayor of the city of Rolla. The substance of the information is the following: "That said city had its corporate existence as a city of the fourth class under articles 1 and 5 of chapter 30 of Revised Statutes, 1889, by virtue of an order of the county court of said county made at its November term, 1890, which order was based upon a petition signed by a majority of the taxpaying citizens residing within the territory described in the petition; that after the petition was signed by all the petitioners, and after it was filed with the court, the court permitted three of the signers thereto, without the consent or knowledge of any of the other petitioners, to alter the petition by striking off six names of the signers thereto, and to amend it so that it contained land different from that described in the original petition; that the petition both before and after such alteration and amendment, and the order of incorporation made by the county court included more than five acres of agricultural lands used solely for farming purposes and never laid out in lots, blocks or commons."

The defendant filed a demurrer which questioned the legal sufficiency of the information, which resulted in a final judgment in favor of the demurrrant, and relator brought error.

Section 977 of Revised Statutes, 1889, under and by virtue of which the city of Rolla was organized, is the following: "Sec 977. Any city or town in this state, existing by virtue of the present general law, or by any local or special law, may elect to become a city of the class to which its population would entitle it under the provisions of this article, by passing an ordinance or proposition and submitting the same to the legal voters of such city or town, at an election to be held for that purpose, not less than twenty nor more than thirty days after the passage of such ordinance or proposition; and if a majority of such voters, voting at such election, shall ratify such ordinance or proposition, the mayor or chief officer of such city or town shall issue his proclamation, declaring the result of such election, and thereafter such city or town shall, by virtue of such vote, be incorporated under the provisions of the general law provided for the government of the class to which such city belongs, which class shall be determined by the last census taken, whether state or national. Any city or town of the state not incorporated may become a city of the class to which its population would entitle it under this article, and be incorporated under the law for the government of cities of that class, in the following manner: Whenever a majority of the inhabitants of any such city or town shall present a petition to the county court of the county in which such city or town is situated, setting forth the metes and bounds of their city or town and commons, and praying that they may be incorporated, and a police established for their local government, and for the preservation and regulation of any commons appertaining to such city or town, and if the court shall be satisfied that a majority of the taxable inhabitants of such town have signed such petition, the court shall declare such city or town incorporated, designating in such order the metes and bounds thereof, and thenceforth the inhabitants within such bounds shall be a body politic and incorporate, by the name and style of the city of , or the town of ---; and the first officers of such city or town shall be designated by the order of the court, who shall hold their...