State Ex Inf. Crow v. Fleming

• Citation: 44 S.W. 758,147 Mo. 1
• Parties: State ex inf. Crow, Attorney-General, et al., Relators, v. Fleming et al
• Decision Date: 16 February 1898
• Court: Missouri Supreme Court

44 S.W. 758

147 Mo. 1

State ex inf. Crow, Attorney-General, et al., Relators, v. Fleming et al

Supreme Court of Missouri

February 16, 1898 ^[*]

Commissioner appointed.

Edward C. Crow, Attorney-General, Frederick A. Heidorn, John F Shepley and Charles S. Reber for relators.

(1) Municipal corporations in this country can only be created by legislative enactment. Hence it follows, that the county court of St. Louis county in declaring, by means of its so-called order of April 20, 1896, the city of Webster Groves incorporated was performing a purely ministerial or legislative function. Art. IX, sec. 7, Constitution; People v. Bennett, 29 Mich. 451; State v Simons, 32 Minn. 540; Galesburg v. Hawkinson, 75 Ill. 153; State v. Mott, 48 Neb. 683; People v. Nevada, 6 Cal. 143; Cochran v. McCleary, 22 Ia. 75; Wood v. Henry, 55 Mo. 560; Hull v. De Armond, 46 Mo.App. 596. (2) Quo warranto is the proper remedy to test the right of a city to exercise its functions over territory alleged to be outside of its corporate limits. State ex rel. v. Brown, 108 Mo. 153; State v Westport, 116 Mo. 582; People v. Oakland, 92 Cal. 611; East Dallas v. State, 73 Tex. 370; People v. Peoria, 166 Ill. 517; Kuhn v. Port Townsend, 12 Wash. 605. (3) This action was properly brought against the respondents as individuals, and not against the supposed city, whose functions respondents were and are undertaking to exercise. King v. Cusacke, 2 Roll. Rep. 113; People v. Railroad, 15 Wend. 113; People v. Peoria, 166 Ill. 524; People v. Spring Valley, 129 Ill. 169; State v. Uridell, 37 Neb. 371.

Webster & Webster, G. A. Finkelnburg and Dawson & Garvin for respondents.

(1) What constitutes jurisdiction? That question has been asked and answered innumerable times and always the answer is the same. It is the power to hear and determine the particular case. U. S. v. Arredondo, 6 Pet. 691; Cooper v. Sunderland, 3 Ia. 114; Morrow v. Weed, 4 Ia. 77; Babb v. Bruere, 23 Mo.App. 604; State v. Withrow, 108 Mo. 1. Jurisdiction of the subject-matter is the power to hear and determine cases of the general class to which the proceedings in question belong. State ex rel. v. Smith, 104 Mo. 419; Hope v. Blair, 105 Mo. 85; State ex rel. v. Neville, 110 Mo. 345; Musick v. Railroad, 114 Mo. 309; Leonard v. Sparks, 117 Mo. 103; Burke v. Kansas City, 118 Mo. 309; State v. Elkins, 130 Mo. 90. (2) Whether or not the petition was signed by a majority of taxable inhabitants is immaterial. That was not a jurisdictional fact. It was one of the facts as to the existence or non-existency of which the court was to determine after it had acquired jurisdiction. The filing of the petition in the county court of itself conferred jurisdiction upon the court, irrespective of the form or contents of the petition. Commissioners v. Markle, 46 Ind. 96; Terre Haute v. Beach, 96 Ind. 143; Hyatt v. Bates, 35 Barbour, 308; Kuhn v. Port Townsend, 12 Wash. 605. The respondents claim that the finding by the county court, in its order incorporating the city of Webster Groves, that the petition was signed by a majority of the taxable inhabitants of the territory incorporated is final, and conclusive, binding alike on this court, and all other courts. This view is supported by the language of the statute and by numerous decisions of the appellate courts of this State and other States. State ex rel. v. Weatherby, 45 Mo. 17; State v. Evans, 83 Mo. 319; State ex rel. v. Young, 84 Mo. 90; State ex rel. v. Powles, 136 Mo. 376; Leonard v. Sparks, 117 Mo. 116; Fulkerson v. Davenport, 70 Mo. 546; State ex rel. v. Simmons, 35 Mo.App. 374; State v. Searcy, 39 Mo.App. 393; State v. Mackin, 51 Mo.App. 299. A stranger to the judgment may show that it was procured by fraud whenever it is attempted by the judgment to affect his rights. 1 Black on Judgments, 317; Callahan v. Griswold, 9 Mo. 784; Myers v. Miller, 55 Mo.App. 338. But the fraud must be specifically charged and pointed out, and it must have been of such a nature as to have deceived the other party and the court, and which could not have been exposed at the time. Martin v. Lutkewitte, 50 Mo. 256. Such impeachment can only occur when satisfactory evidence is offered that such impeaching fraud occurred in the very concoction or procurement of the judgment. Bigelow on Fraud, pp. 86-90, 94, 95 and 636; Payne v. O'Shea, 84 Mo. 129; McClanahan v. West, 100 Mo. 320; Oxley Stave Co. v. Butler Co., 121 Mo. 630; Nichols v. Stevens, 123 Mo. 116; Moody v. Peyton, 135 Mo. 489. In the case at bar, however, no fraud is charged or shown in the procuring of the judgment, or in any of the proceedings anterior to its rendition. Therefore, the order of the county court can not be set aside on the ground of fraud, and if not on that ground, not at all, as it can not be claimed that the State occupies any different or more advantageous position than any other stranger. (4) The charge that the boundaries as defined by the order of the court, "included many acres of land used for pasture and farming purposes" is not sustained by the evidence, but if it were, it does not follow that the incorporation would be void. The law does not prohibit the incorporation of farming lands to a reasonable extent. State ex rel. v. Campbell, 120 Mo. 396; State ex rel. v. Young, 61 Mo.App. 494; Burnes v. Edgerton, 143 Mo. 563. And so the original subdivision with the various other subdivisions surrounding and adjoining it, constitute but a single town, and as such, may be incorporated under our law. In re Duquesne Borough, 147 Pa. St. 58; In re Yeardon Borough, 14 Pa. Co. Court Rep. 290, In re Taylor Borough, 160 Pa. St. 475. (5) The real object of this proceeding is to have this court declare void the extension of the limits of the city of Webster Groves made in May, 1897 (under section 1580, R. S. 1889, as amended by act of 1895, section 1, p. 67), but in this proceeding, this court will not inquire into, nor permit the relators to question the validity of that extension, for the sufficient reason that the city, the municipality itself, has not been made a party to the action. People v. Railroad, 15 Wend. 113; People v. Stanford, 77 Cal. 363; People v. Flint, 64 Cal. 49; People v. Spring Valley, 129 Ill. 169; State v. Gas Light Co., 18 Ohio St. 262; State v. Taylor, 25 Ohio St. 280; Drainage Co. v. State, 43 Ind. 236; State v. Somerby, 42 Minn. 55; State v. Coffee, 59 Mo. 59; Dillon on Mun. Corps., secs. 895, 896 and 1897; Spelling on Extr. Relief, sec. 1843; Angell & Ames on Corps., sec. 756; Boone on Corps., 162, 163. And in this connection we again submit for the consideration of the court the question whether the legality of an extension of city limits can be tested by quo warranto at all. The authorities outside of this State are adverse to the remedy of quo warranto in such cases. People v. Whitcomb, 55 Ill. 172; Stultz v. State, 65 Ind. 492; People v. Springfield, 61 Ill.App. 86; High on Extr. Remedies, sec. 618; 2 Spelling on Extr. Relief, secs. 1775 and 1802. (6) When the exercise of specific power is granted to a municipality in express terms by the legislature, its reasonableness can not be reviewed by the courts. 1 Dillon on Mun. Corps., 396; Harr and Bemis Mun. Ord., sec. 188; D. C. v. Waggaman, Mackay, 335; State v. Clarke, 54 Mo. 17; State v. Schweikardt, 109 Mo. 496; Giboney v. Cape Girardeau, 58 Mo. 141.

SHERWOOD, J. Robinson, J., absent, and Williams, J., not sitting.

OPINION

In Banc.

Quo Warranto.

SHERWOOD J.

-- This is an original proceeding instituted in this court by the attorney-general and the prosecuting attorney of St. Louis county, in which they inquire quo warranto William S. Fleming as mayor, and the other respondents as board of aldermen, of the pretended city of Webster Groves, have usurped and are still usurping the powers, privileges, franchises, and prerogatives of a city of the fourth class over certain specified territory, the boundaries whereof are fully set forth in the petition.

Briefly told the history of this case is as follows: On March 26 1896, a petition purporting to be signed by a majority of the taxable inhabitants of the unincorporated town of Webster Groves, and praying for its incorporation as a city of the fourth class, was presented to the county court of St. Louis county, in accordance with section 977, Revised Statutes 1889. The boundaries of the territory which it was desired to have so incorporated were fully set forth in the petition. They are not the same boundaries set out in the information filed in this case, but the territory which the court was asked to incorporate is included within the boundaries set out in said information. On the second of April, 1896, said county court made an order incorporating the city of Webster Groves, in accordance with the prayer of the petition; and on the sixth of April it appointed William S. Fleming mayor, and the other respondents aldermen, of said city. On the twentieth of the same month it made a nunc pro tunc order as of April 2, in order to correct some fancied irregularities in the original order of April 2. The several appointees of the county court qualified and entered upon the discharge of their duties, and thereafter an ordinance (No. 1) was duly passed, dividing the city into wards. At the general election in April, 1897, the respondents were elected mayor and aldermen of said city, respectively, were duly commissioned and qualified, and are now acting as such. On the twenty-ninth of April, 1897, an ordinance (No. 59) was passed by the board of aldermen, and approved by the mayor, extending the limits of said city (in accordance with section 1580, Revised Statutes 1889, as amended by Acts 1895, page 65) so as to include all the territory described in the information herein, and calling a special...