State ex Inf. Goodman v. Smith

• Decision Date: 28 September 1932
• Docket Number: No. 30492.,30492.
• Citation: 53 S.W.2d 271
• Parties: STATE OF MISSOURI on Information of WILLIAM F. GOODMAN, Prosecuting Attorney of Pike County, EX REL. J.W. CREWDSON, Mayor of the City of Louisiana, and WILLIAM PHILLIPS and MARGARET PHILLIPS, Appellants, v. ROBERT SMITH, WILLIAM INCE, EARL REED, CHARLES JOHNSON and JOHN TROUTWINE.
• Court: Missouri Supreme Court

53 S.W.2d 271

STATE OF MISSOURI on Information of WILLIAM F. GOODMAN, Prosecuting Attorney of Pike County, EX REL. J.W. CREWDSON, Mayor of the City of Louisiana, and WILLIAM PHILLIPS and MARGARET PHILLIPS, Appellants, v. ROBERT SMITH, WILLIAM INCE, EARL REED, CHARLES JOHNSON and JOHN TROUTWINE.

No. 30492.

Supreme Court of Missouri, Division Two.

September 28, 1932.

Appeal from Pike Circuit Court. — Hon. Edgar B. Woolfolk, Judge.

REVERSED AND REMANDED (with instructions).

F.D. Wilkins, Andrew J. Murphy, Jr., and J.D. Hostetter for appellants.

(1) In quo warranto proceedings the burden is on respondents to prove the right they claim. State ex inf. v. Hogan, 163 Mo. 43; 2 Jones on Evidence (2 Ed) p. 1023; 32 Cyc. 1460; State ex inf. of Simrall, ex rel. Clements v. Clardy, 267 Mo. 371. Judgment of a county court may be attacked on other grounds than fraud, as where it lacks jurisdiction to render a judgment of incorporation of a village. State ex inf. v. Bellflower, 129 Mo. App. 145; State ex rel. v. Campbell, 120 Mo. 402. It is the province of a Superior Court in reviewing the action of a county court in incorporating a municipal body to examine into and determine the facts upon which the jurisdiction, if any, of the county court is founded. State ex inf. v. Woods, 233 Mo. 357; State ex rel. v. Coffee, 59 Mo. 59; State ex rel. v. McReynolds, 61 Mo. 203; State ex inf. v. Bellflower, 129 Mo. App. 138; State ex rel. v. Flemming, 147 Mo. 1. A petition for incorporation of a town or village must, if it alleges existence of commons, describe the same, and is fatally defective if it fails so to do, and the court acquires no jurisdiction; or, if there be no commons, it should so state, else it is fatally defective and no jurisdiction is acquired. Sec. 7091, R.S. 1929; State v. Hyde. 2 S.W. (2d) 219; State ex inf. v. Gooch, 175 Mo. App. 270; State ex inf. v. Woods, 233 Mo. 357; State ex inf. v. Huffman, 248 S.W. 985; State ex rel. v. Buerman, 186 Mo. App. 699. (2) An absurd, indefinite or impossible description of the metes and bounds of a town or village which is sought to be incorporated renders the order of incorporation void. State ex rel. Braswell v. Tucker, 43 Mo. App. 531; St. Louis v. Waterman, 277 Mo. 227; Railroad Co. v. Gould, 122 Cal. 601. The two cases last cited are condemnation cases, but in principle are equally applicable to cases involving incorporation of municipal bodies. Where a description is not general but is specific, as in the case at bar, and no reference is made to a map or plat for a more detailed or specific description then cases holding that a general description may be aided or "eked out" by references to a profile map do not apply. Sassman v. State Highway Commission, 45 S.W. (2d) 1095.

Davis Benning and May & May for respondents.

(1) Appellants do not allege and prove fraud on the county court, therefore the judgment of that court is not open to attack. State v. Toliver, 287 S.W. 315; State ex rel. v. Fleming, 158 Mo. 564; Village of Grandview v. Mellroy, 9 S.W. (2d) 829; State ex rel. v. Weithaupt, 150 Mo. App. 60; Moody v. Peyton, 135 Mo. 482; Oxley v. Butler County, 121 Mo. 630; Covington v. Chamblin, 156 Mo. 588. (2) The county court, though a court of limited statutory jurisdiction, stands on the footing of courts of general jurisdiction, and the same presumptions will be indulged in favor of the regularity of proceedings in the county court, and the validity of its judgments in matters within its exclusive jurisdiction, as are indulged in favor of judgments of courts of general jurisdiction. State v. Fulton, 184 S.W. 938. "Where a court's right to assume jurisdiction depends on ascertainment of facts in pais, it is presumed in a collateral proceeding, that the court, having retained jurisdiction, found such facts in favor of jurisdiction, and if the court directly found such facts where they were disputed, the finding is conclusive on collateral attack." Neighlin v. Edwards, 228 S.W. 764; Sysk v. Wilkinson, 265 S.W. 538; Reed v. Nicholson, 158 Mo. 631; State v. Toliver, 287 S.W. 315; State ex rel. v. Fleming, 158 Mo. 558; State ex rel. Cook v. Dongan, 264 S.W. 997; Fitzgerald v. De Soto Special Road District, 195 S.W. 697; Oxley Stave Co. v. Butler Co., 121 Mo. 614; Reed v. Nicholson, 158 Mo. 631; McDonald v. McDaniel, 242 Mo. 176; Wabash Railroad Co. v. Mirrielees, 182 Mo. 126; Nichols v. Stevens, 123 Mo. 116; Hamilton v. McLean, 139 Mo. 678; Bushman v. Barlow, 15 S.W. (2d) 332; Covington v. Chamblin, 156 Mo. 588; Moody v. Peyton, 135 Mo. 482.

WESTHUES, C.

This is a quo warranto proceeding instituted at the information of William F. Goodman, Prosecuting Attorney of Pike County, at the relation of J.W. Crewdson, mayor of the city of Louisiana, Missouri, and others to challenge the validity of the incorporation of the village of Elmwood.

The judgment of the trial court was that the incorporation of the village was valid, and the proceedings in quo warranto were dismissed. From this judgment appellants and relators have appealed.

The territory in question lies just outside the corporate limits of the city of Louisiana, Missouri. The information alleges that the attempted incorporation of Elmwood by an order of the county court was void for want of jurisdiction of the subject-matter and that the order attempting to incorporate the village was procured through fraud practiced on the county court, by the petitioners for incorporation. The information in quo warranto asked that the trustees and officers of the village, appointed by the county court, be ousted from office.

From the view we take of the case it will only be necessary to relate that portion of the testimony dealing with the various steps, taken by the city council of the city of Louisiana, with reference to extending the city limits embracing the territory here in question and also the steps taken by the County Court of Pike County with reference to the attempted incorporation of the territory as a village.

[1, 2] The evidence reveals the following: The minutes of the proceeding of the city council of Louisiana as of the date of May 3, 1929, introduced in evidence, reveals that an ordinance was presented to the council proposing to extend the city limits. One of the attorneys of record in this case for respondents, representing the residents of the territory here in question, protested to the city council and asked that the ordinance be tabled for thirty days to give the property owners in the proposed extension an opportunity to present their side of the case. The ordinance was read and laid on the table for thirty days. The city clerk was instructed, by resolution, to publish the ordinance for three weeks and furnish a proof of its publication at the next regular meeting of the council. On May 14, 1929, the city council passed the ordinance extending the city limits so as to include all the territory here in question as well as other lands. On May 13, 1929, the residents of the district, through their attorneys, presented a petition to the county court, asking for the incorporation of the territory as a village. The county court on the same day made an order incorporating the district as a village under the name of Elmwood. Subsequently and on May 24, 1929, the county court held a hearing at which the mayor and city council of Louisiana appeared and presented their objections to the order of incorporation made by the county court. The county court on July 5 1929, entered an order of record reaffirming the order of incorporation made on May 13, 1929. Thereupon this proceeding in quo warranto was begun in the Circuit Court of Pike County, Missouri. By virtue of Section 7361, Revised Statutes 1929, the city of Louisiana through its council had the authority to extend the limits of the city so as to include the territory here in question. This authority of the city is not challenged in this proceeding. By virtue of Section 7091, Revised Statutes 1929, the county court in a proper proceeding likewise had the authority to incorporate the territory as a village.

[3] The question arises which of the proceedings instituted in this case takes precedence of the other. It is a well established principle of law that when several separate authorities have concurrent jurisdiction of the same subject-matter the one in which proceedings were first commenced has exclusive jurisdiction to the end of the controversy. It is unnecessary, however, to cite cases supporting the general principle, as we have good authority on the precise point in question. In 43 Corpus Juris, page 83, section 23 we read: "Also, where under different statutes, vesting jurisdiction in different persons or authorities, the same territory is subject either to formation into a new municipality or to annexation to an existing municipality, the jurisdiction first invoked becomes exclusive." In examining the cases cited to the text in Corpus Juris, just quoted, we find many well considered cases in point. People ex rel. v. Morrow, 54 N.E. (Ill.) 839, was a dispute wherein the incorporation of the town of North Chicago was questioned. After a proceeding had been commenced to incorporate, but prior to its incorporation, the territory was annexed to the city of Waukegan. The court in disposing of the question said:

"At the time the petition for annexation was presented to the city, there had been begun and was pending a proceeding by the proper authority to perfect the organization of the village. In other words, the territory was in process of organization into a village. That that proceeding might have resulted in a failure to organize does not, in our judgment, militate against this proposition; and the question, therefore, is, could the petitioners for annexation defeat that proceeding by subsequently attempting to call into exercise the other power authorized by the statute? It cannot, we think, be presumed that the...