State Ex Inf. Barrett v. Foxworthy
| Decision Date | 03 December 1923 |
| Citation | 256 S.W. 466,301 Mo. 376 |
| Parties | THE STATE ex inf. JESSE W. BARRETT, Attorney-General, ex rel. A. B. Cutler et al., Appellants, v. V. E. FOXWORTHY et al |
| Court | Missouri Supreme Court |
Appeal from Daviess Circuit Court; Hon. Arch B. Davis Judge.
Affirmed.
John C. Leopard & Son for appellants.
"All elections by the people shall be by ballot; every ballot voted shall be numbered in the order in which it shall be received, and the number recorded by the election officers on the list of voters, opposite the name of the voter who presents the ballot." Constitution of Missouri, art. 8 sec. 3. An election for school director is an election within this section. State ex rel. v. St. Louis School Board, 112 Mo. 213. To organize as a consolidated school district, the law requires two things to be done: first, an election upon the question of organization; second, an election of directors, conducted in compliance with the law. Secs. 11259, 11237, R. S. 1919.
J W. Alexander, J. A. Selby and Dudley & Brandom for respondents.
(1) An illegally elected officer is a de facto officer and his acts are legal until he is ousted. Wilson v. Kimmell, 109 Mo. 263; St. Louis v. Sparks, 10 Mo. 121; State v. Douglas, 50 Mo. 593; State v. Bierberger, 90 Mo. 375; Harbaugh v. Windsor, 38 Mo. 327; 22 R. C. L. 596, par. 317, also p. 664, secs. 5, 6; State ex rel. Moorehead v. Cartwright, 122 Mo.App. 257. One in possession of an office and in the performance of the duties attached to it is a de facto officer. 29 Cyc. 1389; State ex rel. Moorehead v. Cartwright, 122 Mo.App. 257. The acts of a de facto officer, whether judicial or ministerial, are valid so far as the rights of the public or third persons having an interest in the things done are concerned. Fleming v. Mulhall, 9 Mo.App. 71; Harbaugh v. Windsor, 38 Mo. 327; Powers v. Braley, 41 Mo.App. 556; Macy v. Stark, 116 Mo. 481; State ex rel. Johnson v. Badger, 90 Mo.App. 183; State ex rel. Sommer v. Dowell, L. R. A. 1918D, 1077, 1079. (2) Section 11259 is directory and not mandatory. It is the well-established rule in this State that if the statute merely requires certain things to be done and nowhere prescribes the result that shall follow, if such things are not done, then the statute should be held to be directory. State ex inf. Atty. Gen. v. Bird, 244 S.W. 939. (3) No strict or technical construction is to be put upon the statute authorizing the organization of consolidated school districts. It was designed as a workable method by plain, honest worthy citizens not specially learned in the law, and that the record of a meeting held for the organization of a consolidated district which showed, "moved and seconded that six directors be elected for terms as follows, two for three years, two for two years and two for one year;" where the result was: "M. W. Jones and W. S. Connelly for three years; R. E. Bray and M. Johnson for two years; G. E. Grafeus and B. A. Lawhorn for one year," was a sufficient compliance with the statute. State ex inf. v. Jones, 266 Mo. 199.
The relators, in
the Circuit Court of Daviess County, sought to oust the respondents, who assumed to act as directors of alleged Consolidated School District Number Three of Daviess County, Missouri, which consolidated district, respondents claim, was created by the merger of five districts, all in said Daviess County, by virtue of an election held on the twenty-fourth day of December, 1920.
The Circuit Court of Daviess County held that said consolidated district was duly organized; that when this action was instituted Otis Johnston, A. C. Jennings, Roy Scott and Clem Reid were duly elected, qualified and acting directors of said district, entitled to the privileges, etc., appertaining to that office; that respondents Foxworthy and Shoemaker were not then duly elected, and ordered that said Foxworthy and Shoemaker be ousted from said office. The relators appealed from that judgment.
The information, in the nature of quo warranto, alleged that the organization of Consolidated School District Number Three was invalid, and that a board of directors was not legally elected at the meeting at which the organization was attempted. The return of respondents recites the proceedings in accordance with the statute leading up to the alleged organization of the consolidated school district, on the twenty-fourth day of December, 1920, and the facts relating to the conduct of proceedings on that day. A trial was had November 23, 1922, and while the trial court had the cause under advisement, the respondents, on the thirteenth day of February, 1922, filed a supplemental answer and return relating to the election of respondents Shoemaker and Foxworthy, as directors of the said school district. Since these two directors were ousted by the judgment of the court, and have not appealed, we have no concern with that supplemental return.
It was stipulated at the trial that the requirements of the statute in regard to a petition for the consolidated district, notice and other proceedings leading up to the election on December 24, 1920, were fully complied with. On that day the vote on the question of consolidation was taken by ballot in due form. The count showed 368 ballots were cast, of which 273 were for the consolidation, and 95 were against consolidation.
The further proceeding is shown by the report of the meeting filed with the county clerk and the superintendent. It is designated as Exhibit F, and is admitted to contain a correct account of what occurred. After the ballot on the question of consolidation was taken, the report proceeds as follows:
The bill of exceptions then proceeds:
"Thereupon evidence was introduced to the effect that the election of directors at the special meeting of December 24, 1920, was not conducted in the manner prescribed by the Constitution of Missouri, Article VIII, Section 3, but was in the manner as shown by the record of that meeting filed with the county clerk, 'Exhibit F'; that they took the oath required by law of the directors, elected the officers designated by the statute, and undertook to discharge the duties of directors; that thereafter it was discovered that Harl Garner was not of legal age; that he therefore resigned and the defendant Roy Scott was selected and elected to take the place of said Harl Garner at a regularly called meeting of the board of directors; that said R. O. Strong elected for one year at said special meeting as a director, failed to qualify as such, and that at a regularly called meeting of the board of directors the defendant Clem Reid was selected and elected to take his place for the unexpired term; that said term expired in the spring of 1921; that at the annual meeting and at the election held at said annual meeting in the spring of 1921, said Clem Reid was elected by the voters at said election to succeed himself; that the defendant A. C. Jennings was elected as a director by the board of directors at a regularly called meeting to take the place of and took the place of Earl Manring, who had resigned and whose resignation had been accepted for the...
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