State v. Dougan

Decision Date28 July 1924
Docket NumberNo. 25299.,25299.
Citation264 S.W. 997
PartiesState ex inf. MAYFIELD ex rel. COOK et al. v. DOUGAN et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Howell County; E. P. Dorris, Judge.

Quo warranto by the State of Missouri, on the information of W. I. Mayfield, on the relation of. D. N. Cook and others, against A. L. Dougan and others. From a judgment for plaintiffs, defendants appeal. Reversed.

W. I. Mayfield, of Lebanon, and John T. Sturgis, of Springfield, for appellants.

Winan Mayfield, Pros. Atty., of Lebanon, Curtis & Vandeventer, of Hartville, and L. C. Mayfield, of Lebanon, for respondents.

HIGBEE, C.

This is a proceeding in quo warranto in the circuit court of Laclede county against the appellants, as commissioners of the Southard-Drew special road district, challenging the validity of an order of the county court of Laclede county incorporating said district. A change of venue was awarded to Howell county, where, on trial on December 17, 1923, it was adjudged "that the order incorporating said district was and is void and of no effect, and that the defendants are not entitled to the offices of commissioners of said claimed special road district," and they were accordingly ousted. From this judgment the defendants appealed.

It is conceded that the petition filed in the county court of Laclede county for the incorporation of the district and the notice complied in every detail with the requirements of section 10834, R. S. 1919, under which the proceeding was had. A remonstrance was filed, stating the objections to the formation of the proposed district, in substance as follows: (1) It is not a public necessity. (2) It is not for the best interest of roads in that section of the county. (3) The boundaries as set forth in the petition would leave land near and adjacent to it without funds to build and maintain roads on the land left out of said district. (4) It would destroy road districts 4 and 5 already formed, and leave them without roads and without funds to build and maintain them. (5) The land in said district will not be benefited by its formation in an amount approximating the probable burdens imposed by the formation thereof.

It is charged in the information that among those who signed the remonstrance were numerous owners of land in the proposed district who, through misrepresentations, had been induced to sign the petition; that they in due time filed said remonstrance before action was taken on the petition and requested the county court not to consider their names, and to take them off the petition, and protested against the formation of said district; that said court, without any investigation of the facts stated in said petition, and without hearing any testimony thereon, made and entered an order finding that the petition was signed by the owners of the majority of the acres of land within the territory sought to be incorporated; that the petition should have been considered without the signatures of those who afterwards signed the remonstrance and requested that their names be taken off, and that after the number of acres of land owned by said remonstrants had been deducted said petition failed to be signed by the owners of the majority of the acres of land within said territory, and the county court had no jurisdiction to consider said petition because of said fact; that the members of the said county court, at the time they made said judgment and order incorporating said road district, knew from the records before them and by their own information and calculation that the petition then before them was not signed and in writing consented to by the owners of the majority of acres of land in said territory, and knew that their said judgment was in this respect false and untrue, and not warranted by the facts before them; that by reason of the foregoing facts relators say that the judgment of the county court, finding that said petition was signed by the owners of the majority of the acres of land within the said territory was, within the meaning of the law, concocted in fraud, and should therefore be adjudged void and of no effect. Here follow allegations that the annual election of the commissioners was fraudulently conducted, but that charge was abandoned at the trial.

The answer or return pleads at length the proceedings in the county court; that the petitioners and remonstrants appeared and, having arrived at a mutual understanding, recommended to the court the exclusion of a certain 180 acres therefrom of the land of one of the remonstrants and change of boundaries accordingly, and the appointment of two of the remonstrants, Johnson and Munson, as commissioners until the ensuing annual election; that after due consideration the order was accordingly so made, and commissioners were appointed and qualified.

The order incorporating the special road district recites the filing of the petition, signed by the owners of 18,884 acres of the 31,080 acres embraced in the proposed district, the giving of notice, and then proceeds:

"And it appearing to the court that the public good requires and makes necessary a change in the boundary lines, as proposed in said petition, so as to exclude from said proposed district [here is described a tract of 183 acres], so that the description of the boundaries of said district shall be as hereinafter set out, and after excluding the said 180 acres, because the public good requires and makes the same necessary, the court doth find that the aforesaid petition is signed in writing by the owners of a majority of all the acres of land within the district as so changed; that, after excluding the aforesaid 180 acres of land, there remains 31,500 acres, and the court doth find that the petition is signed by the owners of 18.884 acres.

"The court further finds that a remonstrance to the formation of said proposed district has been duly filed, and after taking up and considering the same all remonstrance to the formation thereof is hereby overruled. It is therefore duly considered, ordered, and adjudged that, after the change in the boundaries of said proposed district by excluding the 180 acres aforesaid, such petition is signed by the owners of a majority of all the acres of land within the district as so changed, and the court doth further and hereby make an order incorporating the said special road district as `Southard-Drew special road district, Laclede county,' and that the boundaries of such district as established hereby shall be as follows: [Boundaries omitted.]"

Then follows an order appointing three commissioners, as required by section 10835, R. S. 1919, two of whom had signed the remonstrance. Over the objection of the appellants that the record of the county court speaks for itself...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT