Black v. Early
| Decision Date | 24 December 1907 |
| Citation | 106 S.W. 1014,208 Mo. 281 |
| Parties | BLACK et al., Appellants, v. EARLY, Collector; MITCHELL et al., Judges County Court; MILLER, County Clerk; and SCHOOL DISTRICT OF THE TOWN OF HURDLAND, Appellants |
| Court | Missouri Supreme Court |
Appeal from Marion Circuit Court. -- Hon. D. H. Eby, Judge.
Reversed and remanded (with directions).
O. D Jones, George A. Mahan and W. N. Doyle for plaintiffs-appellants.
(1) Was the legal existence of defendant school district put in issue? It demanded to be, and was made a party defendant on its application against plaintiff's consent. It asserts the facts in detail of its organization and legality of it. Plaintiffs must admit or deny it and make the issue by reply. They made the issue under the provisions of section 746, Revised Statutes 1899. School District v. Wallace, 75 Mo.App. 317. The statute applies to public corporations. Prince v. Town of Lutesville, 25 Mo.App. 317; Walker v. Point Pleasant, 49 Mo.App. 244; Orrick School District v. Dorton, 125 Mo. 439; Railroad v Shambaugh, 106 Mo. 557; City of Hopkins v Railroad, 79 Mo. 100; State ex rel. v. School District, 79 Mo.App. 103. No objection was made by demurrer or reply, as the record now stands, to the school district defendant being a party. State ex rel. v. Exploration Co., 97 Mo.App. 226; Johnson v. Bank, 102 Mo.App. 395; Mulheim v. Simpson, 124 Mo. 610; Dodson v. Lomax, 113 Mo. 555. (2) (a) Defendant school district was not legally organized. No legal petition was presented to the board of the three directors. It does not aver it was signed by "ten taxpayers of the district." This is a jurisdictional fact, and unless it was so signed by taxpayers no election could be called. Perryman v. Bethune, 89 Mo. 158; School District v. Pace, 113 Mo.App. 134. (b) The record shows not more than six of the petitioners were taxpayers. State ex rel. v. Fasse, 189 Mo. 153. These defendants assert the de jure organization of defendant school district, and their derived right by it in law to levy taxes on its "estimates" of its officers, and it devolves the burden on them to show it. Rousey v. Wood, 57 Mo.App. 650. (c) The statute declares (sec. 9861) on the presentation of such a petition signed by ten qualified voters and resident taxpayers of the district, the board "shall order an election for that purpose." But before it could order an election it must declare whether the petition was so signed. If it decided it was so signed, it should enter that fact on the record in its order. If not, it should make no order. There is no claim they made any written order, and even the oral evidence does not show they made any investigation of that matter. In fact, no ten of the signers of the petition were taxpayers. Not to exceed six of them were. State ex rel. v. Wilson, 99 Mo.App. 675. The duty of the board is the same as the county court on receipt of the petition of the inhabitants of an unincorporated town. State ex inf. v. Fleming, 147 Mo. 11; Hill v. Kahoka, 35 F. 32. (d) The order or action of the corporation can only be shown by the record. Kane v. School District, 48 Mo.App. 413; State ex rel. v. Ray, 55 Mo. 446; State v. Lawrence, 178 Mo. 350; State ex rel. v. Lockett, 54 Mo.App. 202; State ex rel. v. Gill, 190 Mo. 89; 20 Am. and Eng. Ency. Law (1 Ed.), 510-11. (3) No notice of the election was given as required by the statute. The one given was signed by the clerk, Townsend. It does not suggest, in any manner, that the board ordered it, or had anything to do with it. In fact, it negatives that idea, by it being inserted in the notice of the annual meeting and reciting that, "among other things specified by the law," this proposition would be considered. It thus plainly negatives completely the idea that the board, on petition duly presented to it, had ordered "that an election be held for that purpose." State ex rel v. Gill, 190 Mo. 89; McPike v. Sheriff, 51 Mo. 63; State v. Railroad, 75 Mo. 526. "When power to call an election is conferred in law on certain officers, it cannot be done by any others." 10 Am. and Eng. Ency. Law (2 Ed.), 624-5; Stephenson v. McLean, 2 Tex. Civ. App. 321; People v. Rafter, 89 Ills. 337. The object of the election must be plainly stated. Railroad v. Sparta, 77 Ill. 505; People v. Hamilton County, 3 Neb. 244; Cook v. Davis County, 36 Ind. 320; Thatcher v. People, 93 Ill. 240; Haywood v. Guilford, 69 Mo.App. 1. (4) (a) The provisions of sections 9861 and 9864 are imperative; within four days after the annual election or an election, the newly-elected board must meet, qualify and organize. Mechem on Public Officers, sec. 178; McCreary on Elections (3 Ed.), sec. 141; School District v. Wallace, 75 Mo.App. 317. (b) It is entirely another corporation. Another being in law of another class. And the plain, undisputed fact is only one of them has ever taken the oath to serve that district until this day. And he was sworn after the occurrence of all the facts out of which this litigation grows. State v. Dierberger, 90 Mo. 369; People v. Weaver, 89 Ill. 348; Patterson v. Miller, 2 Metc. 493; Harbaugh v. Windsor, 38 Mo. 327; Wilson v. Kimmell, 109 Mo. 263; State v. Findley, 101 Mo. 218; State ex rel. v. Perkins, 139 Mo. 106. (5) The defendants, county officers, all assert that the district defendant is one de jure and recognized as such by them. It thus devolves on them to show that their co-defendant district is a corporation de jure, for if there be no corporation there can be no office -- if no office no officer, and its estimates are nullities, and defendants are in law trespassers. Ayers v. Latimer, 57 Mo.App. 78; Matter v. Quinn, 152 N.Y. 89; Daniel v. Hutchinson, 4 Tex. Civ. App. 239. If the defendant school district was not legally organized, then there was no office to be filled. If there was no office to be filled, there was no corporation or officer de facto. State v. Law, 16 R. I. 620; In re Heinke, 31 Kans. 718; Jester v. Spurgeon, 27 Mo.App. 477; Ex parte Snyder, 64 Mo. 58; State v. O'Brien, 68 Mo. 153; Walker v. Ins. Co., 62 Mo.App. 209.
L. F. Cottey, F. H. McCullough and J. C. Dorian for defendants-appellants.
(1) The law is well settled in this jurisdiction that the right to assail the validity of a corporation collaterally by injunction in the manner attempted in this petition, is not available to individuals, but belongs alone to the State in a direct proceeding by quo warranto. Kayser v. Trustees of Bremen, 16 Mo. 88; Burnham v. Rogers, 167 Mo. 21; School District No. 35 v. Hodgin, 180 Mo. 78; Franklin Avenue German Savings Institute v. Board of Education of the Town of Roscoe, 75 Mo. 411; Stamper v. Roberts, 90 Mo. 687; State ex rel. v. Miller, 113 Mo.App. 665; St. Louis v. Shields, 62 Mo. 247; Fredericktown v. Fox, 84 Mo. 65; State ex rel. v. Birch, 186 Mo. 219; Bank v. Rockefeller, 195 Mo. 42; State v. Fuller, 96 Mo. 167; Flynn v. Neosho, 114 Mo. 573. (2) The findings and judgment against the defendants to the effect that the tax levy for the year 1905 was null and void, because the estimate for such levy was made before the bonds were negotiated, are not responsive to the issues made by the pleadings. The petition proceeds upon the theory that the tax levies for 1905 and 1906 are both null and void, because the school district is not a corporation and had no authority to issue any bonds at all, or levy any taxes for any purpose whatever. It was not alleged as a ground for relief, nor tendered as an issue on the trial, that the tax levy of 1905 was prematurely made. Roden v. Helm, 192 Mo. 93; Schneider v. Patton, 175 Mo. 723; Irwin v. Childs, 28 Mo. 576; Newham v. Kenton, 79 Mo. 385; Ross v. Ross, 81 Mo. 84; Reed v. Bott, 100 Mo. 67; Burnham v. Rogers, 167 Mo. 24.
Plaintiffs, Black, Buhl and Delaney, resident taxpayers of the district, for themselves and forty others unnamed (designated in the petition and the briefs as "the Forty"), on June 2, 1906, sued in the circuit court of Knox county to enjoin the collection of taxes levied against their properties for the year 1905 and about to be levied for the year 1906 for the support of the public school of the School District of the Town of Hurdland, and to pay the interest on certain bonds of said district and to create a sinking fund to pay the principal.
A preliminary writ went. Thereat the venue of the cause was changed to the Hannibal Court of Common Pleas on plaintiffs' application. At a hearing there, the chancellor made the preliminary writ permanent as to the taxes for the year 1905. As to the taxes of 1906, it was dissolved. The decree, having split the relief, proceeded to halve the burden of costs, taxing one modicum against plaintiffs and the other against defendants, and from that decree the parties litigant prosecute cross-appeals.
The case was lodged in this court on the 26th day of June, 1907. On the same day defendants filed a motion to advance. There was no counter showing made on the allegations of that motion. Therefrom it appeared that a proceeding in quo warranto, involving the life of the School District of the Town of Hurdland, was pending here for hearing at the October term, 1907. Therefrom it further appeared that because of the non-payment of taxes by plaintiffs (and "the Forty"), and because one of the plaintiffs, as treasurer of the School District of the Town of Hurdland, whose bond was made by his co-plaintiffs as sureties, refused to turn over the money of said district then in his hands, without suit (litigation being pending on said bond, see State ex rel. v. Delaney, 122 Mo.App. 239, 99 S.W. 1), the public school in the School District of the Town of Hurdland had been first crippled and then closed.
The premises considered, the Court In Banc advanced this case to be heard with the quo...
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