State Ex Inf. Berkley v. McClain

• Decision Date: 15 March 1905
• Citation: 86 S.W. 135,187 Mo. 409
• Parties: THE STATE ex inf. BERKLEY, Prosecuting Attorney, at the Relation of McCORMACK, Appellant, v. McCLAIN et al
• Court: Missouri Supreme Court

86 S.W. 135

187 Mo. 409

THE STATE ex inf. BERKLEY, Prosecuting Attorney, at the Relation of McCORMACK, Appellant, v. McCLAIN et al

Supreme Court of Missouri, First Division

March 15, 1905

Transferred from St. Louis Court of Appeals.

Affirmed.

Jos. G Williams and Sam Byrnes for appellant.

(1) Both the information and amended return contain affirmative averments that the proposition was defeated in three of the four school districts, and carried, according to the votes as cast, in one. The agreed facts on the trial, in respect to the voting, are that the proposition was defeated in three of the districts, and that in one, to-wit, School District No 1, Township 39, Range 5, it was carried by the votes as returned by the election officers, by a majority of two votes. The testimony shows that at the voting in this school district there were two votes cast and counted for the proposition by persons not entitled to vote, namely, one by Rev. J. M. England, who resided in the parsonage at Plattin Station, which was not in the district, and one by Frederick Mathews, who was not a citizen of the United States, and that the proposition was defeated in said district by its failure to receive a majority of the legal votes cast. The proposition not having carried in any of the districts, the matter could not have been referred to the county commissioner. He could not have acquired jurisdiction to act in respect to the matter. And arbitrators selected by him could not have reversed the will of the voters of the four districts, as expressed at the annual meeting. Secs. 6994, 9742, 9759, R.S. 1899; School Dist. v. Burris, 84 Mo.App. 654. (2) The court erred in refusing to declare the law, as embodied in declaration of law numbered two, asked by plaintiff. (3) The action of the arbitrators in acting without being sworn, and upon unsworn testimony, would have invalidated their proceedings. If it may be held to have been within the legislative intent, in the passage of section 9742, Revised Statutes 1899, to authorize arbitrators to pass on and decide matters relating to the taking of territory from school districts without being themselves sworn as arbitrators, and upon the unsworn statements of persons assuming to appear before them as witnesses, as was done in the case at bar, the provisions of the section, in so far as it attempts to clothe arbitrators with such powers, are invalid, as being in conflict with the State Constitution. Sec. 9742, R.S. 1899; sec. 30, art. 2, Constitution.

Edwin J. Bean and James F. Green for respondents.

(1) The county school commissioner had jurisdiction and his decision and that of the board of arbitrators is final. Sec. 9742, R.S. 1899; State ex rel. v. Denny, 94 Mo.App. 559; State ex rel. v. Burford, 82 Mo.App. 343; School District v. Burris, 84 Mo.App. 654; State ex rel. v. Stone, 152 Mo. 202. (2) The qualification of voters will not be inquired into in a proceeding by quo warranto. State ex rel. v. Vail, 53 Mo. 97; State ex rel. v. Francis, 88 Mo. 560; State ex rel. v. Mason, 77 Mo. 189; State ex rel. v. Townsley, 56 Mo. 107.

OPINION

MARSHALL, J.

This is a proceeding under the statute in the nature of a quo warranto, instituted by the prosecuting attorney of Jefferson county, at the instance of a citizen, to oust the defendants from the position of school directors of school district No. 5, townships 39 and 40, ranges 5 and 6, of said county. The real question in the case is whether said school district was ever legally organized. On the one hand it is claimed by the defendants that said school district was legally made up, by taking parts of four contiguous school districts and forming said parts into a new district, and on the other hand the relator claims that the prerequisites and proceedings provided by statute for the formation of a new school district, by severing the constituent parts from existing districts, were not complied with.

The circuit court ordered judgment for the defendants, and the relator appealed to the St. Louis Court of Appeals, and that court certified the case to this court on the ground that this court has appellate jurisdiction of the case.

I.

The petition was filed by the prosecuting attorney of Jefferson county, at the instance of Mitchell McCormack, a resident taxpayer of the district to be formed. It is, therefore, a proceeding in the nature of a quo warranto or statutory quo warranto, such as is provided for by section 4457, Revised Statutes 1899, and not a quo warranto ex officio. The statute requires the prosecuting attorney to file such a proceeding when requested by an interested citizen, and forbids the prosecuting attorney from dismissing or discontinuing it without the consent of the person who set it in motion. It is, therefore, such a proceeding as the court may entertain or refuse to entertain according to a wise judicial discretion, and is not a common law quo warranto which may be filed ex officio by the Attorney-General or prosecuting attorney without leave of court. The trial court granted leave to file this case, and there is no abuse of judicial discretion apparent in its action.

II.

The petition is bottomed upon the predicate that the defendants have no right to hold the office or place of directors of school district No. 5, townships 39 and 40, ranges 5 and 6, not because they have usurped or intruded themselves into office or wrongfully hold or execute such office, but because there is no such school district legally existent, and hence there is no such office. No claim is made that the defendants were not legally elected to, and rightfully exercise the powers of, the office or place or franchise of school directors of said district if there is such a district, but on the contrary it appears from the petition and the return and the agreed statement of facts, upon which this feature of the case was submitted to the court, that such is the fact; that relator voted for them for such office and in truth induced one of them to become a candidate therefor.

This being true there is no question in this case that the defendants are entitled to hold the office, if there is such an office, and the question then arises at once whether the existence of such an office can be called in question in this proceeding, or whether the quo warranto should be directed against the school district itself.

The general rule in England and this country is thus laid down in 23 Am. and Eng. Ency. Law (2 Ed.), p. 622:

"Public or Municipal Corporations. It is sometimes held that quo warranto proceedings to oust a de facto public or municipal corporation from its corporate franchise may be brought directly against the corporation in its corporate name. But the better opinion seems to be that where the proceedings are based upon an original lack of authority the proceedings must be against the individuals who unlawfully assume to be a municipal corporation, while in cases of forfeiture, or the usurpation of particular franchises, the proceedings should be against the corporation as such. This is the rule as to private corporations, and there seems to be no reason for any distinction. Sometimes it has been held that the question of corporate existence could be tried in proceedings against the officers of the municipality. But in the absence of statutory authority for such a proceeding, while corporate existence may be determined as an incident to the trial of the right to exercise a municipal office, the judgment is not binding upon the corporation. Quo warranto to test the right of a legal municipality to exercise jurisdiction over certain territory, as in cases of attempted extension of corporate limits, may be brought directly against the municipality, but when the right to exercise jurisdiction over territory depends upon the legality of an organization as a municipal corporation, the individuals assuming jurisdiction are the proper defendants according to the usual rule already stated.

"Private Corporations. It is usually held that quo warranto proceedings to oust from a corporate franchise must be brought against the individuals charged with the unlawful use of the franchise, instead of against the corporation, and it is said that the effect of bringing the proceedings against the corporation in its corporate name is to admit the corporate existence. This rule seems correct in principle where the exercise of corporate franchises is wholly unauthorized from the beginning. Where, however, there...