School Districts Numbered 18, 19, 29 and 30 v. Yates
| Decision Date | 08 January 1912 |
| Citation | 142 S.W. 791,161 Mo.App. 107 |
| Parties | SCHOOL DISTRICTS NUMBERED 18, 19, 29 and 30, Appellants, v. LON YATES, Superintendent, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Webster Circuit Court.--Hon. C. H. Skinker, Judge.
AFFIRMED.
Judgment affirmed.
R. S Phillips for appellants.
(1) Nothing will be presumed to be within the jurisdiction of inferior courts and tribunals and their jurisdiction must appear by the record in all cases where it is directly attacked. We find this law laid down in the case of Sutton v. Cole, 155 Mo. 213. "It has long been the settled law in Missouri that the jurisdiction of courts of inferior jurisdiction and of courts that do not proceed according to the course of the common law, must affirmatively appear on the face of the proceedings. State v Metzger, 26 Mo. 65; Hansberger v. Railroad, 43 Mo. 196; Edmondson v. Kite, 43 Mo. 176; Schell v. Leland, 45 Mo. 289; Iba v. Railroad, 45 Mo 469; Harris v. Hunt, 97 Mo. 574; Bank v. Doak, 75 Mo.App. 372; Ex parte O'Brien, 127 Mo. 477. (2) Respondent not only failed to certify that the four men were appointed at any time, not only failed to certify that they were disinterested, not only failed to certify that they were residents, not only failed to certify that they were taxpayers, but totally failing to make any certificate about them at all, makes no certificate whatever. State ex rel. v. Wilson, 99 Mo.App. 675; Sutton v. Cole, 155 Mo. 206; Railroad v. Young, 96 Mo. 39; State ex rel. v. County Court, 66 Mo.App. 96.
J. P. Smith and J. E. Haymes for respondent.
(1) Certiorari is not the proper remedy where the legal existence or life of a school district is brought in question. School District v. Pace, 113 Mo.App. 134. (2) In the case of State ex rel. v. Andrae, 216 Mo. 640, the court says, "If as appears to be the law, the superintendent is required to keep no record of his proceedings, then the absence of a record as to the filing of the petition for appeal within five days is not fatal, because this official is presumed to have followed the law, and would not have proceeded with the case unless such petition had been filed within time. (3) Why should not the same presumption obtain in this case at bar that he had appointed properly qualified members of the board of arbitration. It is declared that this presumption would be the same as to the qualification of the members of the board of arbitration in the case of State ex rel. v. Sexton, 151 Mo.App. 517, for in that case the written finding of the board was almost identical with the finding of the board in the case now before the court and the court upon that matter says: "While the records of the superintendent showing the qualification of the arbitrators was not one required by law to be kept, it, at least, does not controvert the presumption of right acting on the part of the superintendent. (4) The return of the superintendent in this case to the writ does not show that the papers returned by him were all the papers or records pertaining to this case, it only shows they were all he could find among the records of the county clerk and the court upon his return can not say there were not other records or papers showing all necessary jurisdictional facts, should the court believe such showing was necessary. State ex rel. v. Williams, 70 Mo.App. 238. (5) All the more recent holdings of both the Supreme Court and Court of Appeals of our state indicate a more liberal policy and broader view of proceedings relating to the public schools and are more in keeping with progress and justice. State ex rel. v. Job, 205 Mo. 1; School District v. Chappell, 155 Mo.App. 498.
This action originated in the circuit court of Webster county by a writ of certiorari sued out by the appellants, School Districts Numbered 18, 19, 29 and 30, of said county. Upon the quashing of the writ, the relators appealed to this court.
The proceedings which gave rise to the action related to the proposed change of boundary lines between School Districts Numbered 18, 19, 28, 29 and 30, by which it was intended to establish a new district by taking certain territory from the said named districts and with the territory thus detached to form a new district, pursuant to the provisions of Sec. 10837, R. S. 1909. The petition for the change was duly filed, notices were properly posted, and the question of the formation of the new district was voted on in all of said five districts at the annual meeting in April, 1911. Four of said school districts--18, 19, 29 and 30--voted against the detachment of the territory and the formation of the new district, but district numbered 28 voted for the organization of the new district. An appeal was accordingly duly made under the law to the county school superintendent, as authorized by Sec. 10837, R. S. 1909. The matter of the formation of the new district was in this way referred to the superintendent of public schools of Webster county, the appeal having been filed with him in writing within five days after said annual meeting, and no question is made of the sufficiency of the appeal. Whereupon, he appointed four men to constitute a board of arbitration to consider the formation of the new district and to ascertain whether it was just and necessary that it should be formed. Thereafter, the board met, considered the matters submitted, and rendered the following written decision in favor of the proposed change of districts: (Formal parts omitted.)
Marshfield, Mo., April 8, 1911.
Thereafter, the board of arbitration filed another written decision, as follows: (Formal parts omitted.)
"We, the undersigned, being the board of arbitrators appointed by O. P. Keller, county superintendent of schools of Webster county, Missouri, to determine the appeal upon the question voted upon at the annual school meeting, 1911, of School Districts Number 18, 19, 28, 29, and 30, in said Webster county, and wherein appeal from the decision of the voters at said annual meeting upon the question of taking certain territory from said named districts and with said detached territory forming a new district, a description whereof will more fully appear from the paper hereto attached and made a part hereof, do hereby certify that we met in Marshfield, Mo., on April 18, 1911, and after hearing the evidence adduced for and against said proposed change do find that said proposed district should be formed as petitioned for and voted upon at said annual meeting, and that the lines of said named districts should be changed and the parts so detached, as petitioned for and voted upon at the annual school meetings, in said districts, be and the same are hereby formed into a new district in said Webster county, Mo."
It appears that at the time the appeal was taken and at the time the decisions were rendered by the board of arbitration, O. P. Keller was the superintendent of public schools of Webster county. The decision was transmitted to the clerks of the several districts, and its sufficiency is the sole ground of attack made on the proceedings, both in the circuit court and in this court. At the time the petition for a writ of certiorari was filed in the circuit court of Webster county, Lon Yates had succeeded O. P. Keller in the office of superintendent of public schools of Webster county, and the writ issued by the court was directed to him. His return to the writ was as follows: (Formal parts omitted.)
It appears from this that the records and proceedings contained in the return found in the office of the county clerk and were filed in that office by respondent's predecessor, O P. Keller. It will also be seen from this return that there is no showing that all of the papers and records in relation to the action of Keller in regard to the appeal and his action in regard to the formation of the new district were in fact filed with the county clerk. Also, that it does not appear that all that were filed are contained in the return of Lon Yates. But, as Yates was the successor in office, and was the county superintendent at the time the writ of certiorari was issued and it was directed to him, it was proper that he should make a return to the writ, and the case is heard on the merits as the defective return is not pressed upon our consideration by the parties. The books and papers and records of the office should have been turned over by Keller to his successor in office and not to the county clerk, under the statute. [Sec. 10929, R. S. 1909.] But as Yates was in possession of the papers and made his return, in order to determine this case, no contention being made by the parties on the question, we are not required to discuss whether or not the appeal should be...
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