School District v. Pace

• Citation: 87 S.W. 580,113 Mo.App. 134
• Parties: SCHOOL DISTRICT, etc., Appellant, v. PACE et al., Respondents
• Decision Date: 16 May 1905
• Court: Court of Appeal of Missouri (US)

87 S.W. 580

113 Mo.App. 134

SCHOOL DISTRICT, etc., Appellant, v. PACE et al., Respondents

Court of Appeals of Missouri, St. Louis

May 16, 1905

Appeal from Butler Circuit Court.--Hon. H. N. Phillips, Special Judge.

AFFIRMED.

Judgment affirmed.

E. R Lentz for appellant.

(1) The writ of certiorari is in the nature of a writ of error to review the proceedings of the inferior tribunal, and is only issued where no appeal, writ of error or other available mode of review is afforded, and can only issue upon a final determination of the matter in the inferior tribunal. Railway v. Young, 96 Mo. 39, 8 S.W. 776; State ex rel. v. Edwards, 104 Mo. 125, 16 S.W. 117; Power Co. v. Commissioners, 112 Mass. 206; People v Judge, 40 Cal. 479; Stokes v. Early, 45 N. J Law 479; Lynde v. Noble, 20 Johns, 82. (2) The writ of certiorari issues at common law to review the proceedings of inferior courts, officers or bodies acting in a judicial capacity. Bailey on Jurisdiction, sec. 432a; In the Matter Saline Co., 45 Mo. 54; Phelps Co. v. Bishop, 46 Mo. 70. (3) After the petition has been presented to the clerks of the several districts, the clerk of each district affected, must post a notice of the desired change in at least five public places in each district interested fifteen days before the annual meeting. These notices must necessarily be as comprehensive as the proposition to be voted on, and must inform the voter of what change is to be made in the boundaries of his district, unless the notice is such as to give this information, it is no notice at all. R. S. 1899, sec. 9742; School Dist. v. School Dist. 94 Mo. 612, 7 S.W. 285; Mason v. Kennedy, 89 Mo. 23; School Dist. v. Smith, 90 Mo.App. 215; School Dist. v. Burris, 84 Mo.App. 654; State ex rel. v. Eden, 54 Mo.App. 215.

J. T. Davison and D. W. Hill for respondents.

(1) The proceedings of the board of arbitration having culminated in a decision establishing the new school district sixty days before the filing of relator's petition, the new district thus established should, if the relator was entitled to the writ at all, have been made a party defendant to proceedings, being interested in the subject matter thereof. 4 Ency. P. & P. p. 183; 6 Cyc. L. & P. p. 775, sec. 2; State ex rel. v. Buchanan Co. Board of Eq., 108 Mo. 241, 18 S.W. 782; 2 Spelling Extraordinary Relief, sec. 970. (2) The return proper of the board of arbitration shows on its face that the board had jurisdiction, and that it acted within its jurisdiction. The papers sent up with the return, in so far as they were other than scraps of paper and memoranda, were simply instruments of evidence and no part of the record proper and not properly subject to review. A common law writ of certiorari only brings up the record and can only reach defects or errors in the proceedings of the tribunal to which it is issued, which appear upon the face record, and which go to the jurisdiction of that tribunal. The evidence is no part of the record, and it is not the office of the writ to bring up the evidence for review. Railroad v. State Board of Eq., 64 Mo. 308; State ex rel. v. Smith, 101 Mo. 174, 14 S.W. 108; State ex rel. v. Cauthorn, 40 Mo.App. 96; State ex rel. v. Edwards, 104 Mo. 126, 16 S.W. 117; State ex rel. v. Woodson, 161 Mo. 452, 61 S.W. 252; State ex rel. v. Walbridge, 62 Mo.App. 163; State ex rel. v. Smith, 173 Mo. 414, 73 S.W. 211; 4 Ency. P. & P. III p. 12. (3) The interval of more than sixty days between the decision and dissolution of the board of arbitration and the filing of relator's petition for a writ of certiorari, and also the allegations and prayer of the petition, warrant the conclusion that, at the time of the filing of relator's petition the new district was fully organized and performing the purposes of its creation; and the whole record evidences the fact that the sole object and purpose of the relator is to attack the legality of the organization of the new school district. This cannot be done by certiorari. "Quo warranto is the appropriate remedy through which to attack the legality of the organization of the school district." School District v. Smith, 90 Mo.App. 225; State ex rel. v. Stone, 152 Mo. 202, 53 S.W. 1069.

OPINION

BLAND, P. J.

This is a proceeding by writ of certiorari to review the action of a board of arbitrators creating a new school district from territory detached from four contiguous districts in Butler county. The return of the respondents to the writ of certiorari contained a transcript of their action and certificate and also copies of the petitions presented to the clerks of the four districts affected by the new district, copies of the notice of election and the certificates of the several clerks of the districts of the result of the election in each of the four districts. Appellant moved for judgment on the return. Respondents filed the following motion to quash the writ:

"First. Because the petition does not state facts sufficient to entitle the petitioner to the relief prayed for.

"Second. Because the facts stated in the petition do not show the petitioner entitled to a writ of certiorari or other extraordinary or equitable relief.

"Third. Because upon the face of the petition the petitioner is estopped from claiming the relief prayed for.

"Fourth. Because the decision of the county school commissioner and board of arbitration, in forming the new school district mentioned in the petition, is final and not subject to review by writ of certiorari.

"Fifth. Because there is a defect of both party relator and parties respondents."

Hon. J. L. Fort, the regular judge of the court, being unable to attend and hear the cause, Hon. H. N. Phillips was agreed upon by both parties to hear and determine the case.

The motion to quash and for judgment on the return were both taken up and heard and after mature deliberation the learned special judge sustained the motion to quash and the writ was quashed. The appeal was taken in the ordinary way. The board of arbitrators was appointed by the commissioner of public schools of Butler county under the provisions of section 9742, R. S. 1899.

It is conceded that the certificate of the board of arbitrators forming the new school district is regular on its face and is sufficient in form and substance. The districts from which territory was detached to form the new district were districts Nos. 2 and 4, township 24, range 5. Nos. 2 and 4, township 24, range 6. Twenty-four voters of these districts signed a petition and filed it with the clerk of district No. 2, township 24, range 6. In their petition they expressed the desire for the formation of a new school district out of territory (described) to be detached from each of the above four districts, and petitioned that the proposition to form the new district be submitted to the voters of the several districts to be affected at the annual school election to be held in April, 1904. A synopsis or memorandum of this petition, signed by no one, was filed with the clerk of each of the other three districts. Three of the district clerks posted notices in their district, fifteen days prior to the election, notifying the voters thereof that the proposition to detach described territory from the districts would be voted on at the annual school election in April, 1904. The purpose for which the territory was to be detached, or what was to be done with it after detached, was not stated in any of the notices. Three of the districts voted upon the proposition (if there was one) contained in the notices. District No. 2, township 24, range 6, voted in favor of the proposition, two others voted against it; in the fourth no votes were cast on the proposition. The majority vote being against the wishes of the petitioners and a majority of the voters of district No. 2, township 24, range 6, this district appealed to the county commissioner, who appointed respondents, Derrington, Moore, Cowan and Wright, as arbitrators to hear the appeal. The board, as before stated, found for the appellant and established the new school district.

Section 9742, supra, makes it a condition precedent to the right of a clerk of a public school district to post notices of a proposition to form a new district, or change the boundary lines of an existing district, that a petition, signed by at least ten qualified voters of a district to be affected, asking for the formation of a new district, or the change in the boundary lines of an existing district, shall be presented to the clerk of each district affected. No such petition was presented to the clerk of any one of the four districts affected by the formation of the new one, and for this reason the elections held under the notices were absolutely void. The elections being void, there was nothing to appeal from to the county school commissioner and he and the board of arbitrators acquired no jurisdiction over the subject-matter by the appeal, and the findings of the board are void for want of jurisdiction. The statute plainly provides that there must be an election before there can be an appeal to the county commissioner and the appointment of a board of arbitrators by him. There can be no election where there is no warrant...