Orrick School v. Dorton

Citation28 S.W. 765,125 Mo. 439
PartiesOrrick School District v. Dorton, Appellant
Decision Date18 December 1894
CourtUnited States State Supreme Court of Missouri

Appeal from Ray Circuit Court. -- Hon. E. J. Broaddus, Judge.

Reversed.

Garner Son & Divelbiss and Farris & Son for appellant.

(1) Before plaintiff can maintain this action it must appear from the evidence that plaintiff was legally organized as a special school district. City of Hopkins v. Railway Co., 79 Mo. 98; State v. Hays, 78 Mo. 600; Robinson v. Jones, 71 Mo. 582; State v Cleveland, 80 Mo. 108; Hambleton v. Town of Dexter, 89 Mo. 189; Railroad v. Shambaugh, 106 Mo. 557; Wagner's Statutes, p. 1262, art. 2, secs. 1, 2 3 and 4. (2) Proof that plaintiff has been acting since 1871 or 1872, as a special school district is not sufficient to confer upon it corporate capacity. See authorities cited above. (3) Additional territory could only have been annexed by compliance with statutes. 2 Wagner's Statutes, p. 1262, art. 2, sec. 17. (4) The law authorizing adjoining territory to be annexed to any city, town or village for school purposes was evidently intended for the convenience and benefit of the inhabitants of such adjoining territory, and does not authorize the location of the schoolhouse outside the platted portion of said city, town or village.

J. E. Ball and J. R. Hamilton for respondent.

(1) "When there is evidence to sustain a verdict, the testimony will not be weighed by the supreme court." Carver v. Thornhill, 53 Mo. 283; Brown v. Railroad, 50 Mo. 461. (2) Respondent's petition alleges that it was a corporation duly organized under the laws of the state of Missouri. It may become a corporation by organizing under the general laws of the state, or it may become a corporation de facto, and, as such, has power to condemn land for school purposes. Mills on Eminent Domain [2 Ed.], 1888, sec. 61, p. 182; McAuley v. Railroad, 83 Ill. 348; Reisner v. Strong, 24 Kan. 411; Stamper v. Roberts, 90 Mo. 683. (3) The failure to file a plat of the town of Orrick, in the recorder's office of Ray county, is not fatal to the existence of the corporation, but a mere omission which can not be taken advantage of in a collateral proceeding. 95 Mo. 106. (4) The appellant's attempt to deny the existence of the corporation of Orrick school district, and its corporate capacity can not be called in question by the appellant in this case. Judge Cooley in his Constitutional Limitation, page 254, says: "In proceedings where the question, whether a corporation exists or not, arises collaterally, the court will not permit its corporate capacity to be questioned, if it appear to be acting under color of law and recognized by the statute as such. Such questions should be raised by the state itself, by quo warranto, or other direct proceedings." The above language is quoted and approved by the supreme court, in the case of the inhabitants of the town of Fredericktown v. Fox, 84 Mo. 65; see, also, Trustee of Bremman, 16 Mo. 88; St. Louis v. Shields, 62 Mo. 247; Kansas City Hotel v. Howe, 57 Mo. 126; Shewalter v. Pirner, 55 Mo. 218. (5) It was not necessary in this case to prove that every step had been taken in order for said school district to become organized as a school district. It may be considered as existing de facto. Sawyer v. Tompkins, 23 Mo. 443. In that case the court cites the case in New York of Stevens v. Newcomb, 4 Denio, 438, in which the court held that it was not necessary to go through all the steps to show that the district had been duly organized, and that it was enough to show that they had been duly organized as a regular school district for several years.

OPINION

Burgess, J.

This is a proceeding by plaintiff claiming to have been organized as a corporation under the school law applicable to cities, towns and villages to condemn for a new schoolhouse site under section 8001, Revised Statutes, 1889, a strip of ground belonging to defendant, two hundred and ten feet wide by four hundred and twenty feet deep, outside of the corporate limits of the town of Orrick, and outside of the platted portion thereof, but adjoining thereto.

Upon filing the petition with the judge of the circuit court of that county, Ray, defendant filed an affidavit putting in issue the existence of plaintiff as a corporation. The judge, however, appointed commissioners to assess defendant's damages by reason of the taking and appropriation of his land, he and the plaintiff having been unable to agree with respect thereto, which said commissioners reported at the next succeeding term of the circuit court of said county, assessing damages to defendant in the sum of $ 600. Defendant subsequently and in due time filed his exceptions to said report, which were overruled, the report approved and judgment rendered accordingly, from which he appealed.

No deposit of the amount of damages awarded was made with the clerk of the circuit court, nor was possession of the land taken by plaintiff.

Defendant's first contention is that, before plaintiff can maintain this action it must appear from the evidence that it was legally organized as a special school district. In St. Joseph & Iowa Railroad Co. v. Shambaugh, 106 Mo. 557, 17 S.W. 581, which was a proceeding to condemn the defendant's land for its right of way, it was held that its corporate existence might be put in issue, for, if the plaintiff had no corporate capacity, it had no right to prosecute the suit. City of Hopkins v. Railroad Co., 79 Mo. 98, was a proceeding begun by plaintiff for the purpose of opening a street in the town of Hopkins, through the depot grounds of defendant, and it was held that the fact of plaintiff's incorporation rested in pais and must be proven as any other fact.

The rule seems to be different in some of the other states, in which it has been held that a de facto corporation might exercise the right of eminent domain. McAuley v Railroad, 83 Ill. 348; Reisner v. Strong, 24 Kan. 410; Schroeder v. Railroad, 44 Mich. 387, 6 N.W. 872; Niemeyer v. Railroad, 43 Ark. 111. The case last named was predicated of the fact that no provision is made by the law of that state, Arkansas, for any issue upon the right to condemn, the only question being one of compensation....

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