State ex Inf. Kamp ex rel. Rodgers v. Pretended Consol. School Dist. No. 1 of Montgomery County

• Decision Date: 26 September 1949
• Docket Number: 40700
• Citation: 223 S.W.2d 484,359 Mo. 639
• Parties: The State of Missouri at the Information of O. A. Kamp, Prosecuting Attorney of Montgomery County, Missouri, at the Relation of: Franklin Rodgers, Thayne Lotten, Kermit Kneubeler, C. O. McCoy, Vernon Davis, Ralph Leonard, Edward O. Dietrich, Floyd Roussin, J. A. Worsham, Dan Sievert, W. H. Obersmith, Charles Tagg, Everett Davidson, Russel Robinson, Roscoe Maupin, John Holloway, William Quinn, Robert Brooks, David Dillman, Earl Pritchett, Emmett Bailey, Robert Love, Mac Love, Jim Holloway, Jess Holloway, Lee Pine, Earl Pine, Paul McCullough, Murray Palardie, Wilford Bishop, Bond Smith, George Davis, A. P. Hensley, William Davis, Roy Bowlby, Alfred Clark, John Dyke, Raymond Dyke, Kenneth Waggoner, Ross Williams, Harry Cope, M. B. Lotton, Ray Lotton, Lee Bailet, Orville Sheets, B. J. Kneubehler, Mont Holloway, Bryan Holloway, Frank Maddox and Ogle Straube, Respondents, v. The Pretended Consolidated School District Number One (1) of Montgomery County, Missouri; and, Emmett Cobb, Sam Wilson, Carl Luelf, George Obersmith, Paul Rodgers, Edward Werges, Alleged Directors of the Pretended Consolidated School District Number One (1) of Montgomery County, Missouri, Appellants
• Court: Missouri Supreme Court

223 S.W.2d 484

359 Mo. 639

The State of Missouri at the Information of O. A. Kamp, Prosecuting Attorney of Montgomery County, Missouri, at the Relation of: Franklin Rodgers, Thayne Lotten, Kermit Kneubeler, C. O. McCoy, Vernon Davis, Ralph Leonard, Edward O. Dietrich, Floyd Roussin, J. A. Worsham, Dan Sievert, W. H. Obersmith, Charles Tagg, Everett Davidson, Russel Robinson, Roscoe Maupin, John Holloway, William Quinn, Robert Brooks, David Dillman, Earl Pritchett, Emmett Bailey, Robert Love, Mac Love, Jim Holloway, Jess Holloway, Lee Pine, Earl Pine, Paul McCullough, Murray Palardie, Wilford Bishop, Bond Smith, George Davis, A. P. Hensley, William Davis, Roy Bowlby, Alfred Clark, John Dyke, Raymond Dyke, Kenneth Waggoner, Ross Williams, Harry Cope, M. B. Lotton, Ray Lotton, Lee Bailet, Orville Sheets, B. J. Kneubehler, Mont Holloway, Bryan Holloway, Frank Maddox and Ogle Straube, Respondents, v. The Pretended Consolidated School District Number One (1) of Montgomery County, Missouri; and, Emmett Cobb, Sam Wilson, Carl Luelf, George Obersmith, Paul Rodgers, Edward Werges, Alleged Directors of the Pretended Consolidated School District Number One (1) of Montgomery County, Missouri, Appellants

No. 40700

Supreme Court of Missouri

September 26, 1949

Appeal from Montgomery Circuit Court; Hon. Frank Hollingsworth, Judge.

Reversed.

SYLLABUS

In the formation of a consolidated school district a tract of 293 acres in an adjoining county was omitted. Under the particular circumstances this was not such a substantial violation of the statute as to render the consolidation void. The signature to the notices and plats of the County Superintendent of the adjoining county was not required.

Don C. Carter for appellants.

(1) The court erred in holding that the tract of land in Lincoln County, 200-300 acre tract, was a part of School District No 30, of Montgomery County, Missouri. There was no substantial evidence in the case, that such tract of land, omitted from the boundaries of the Consolidated School District, was ever legally a part of school district No. 30, of Montgomery County, Missouri. State ex rel. Frisby v. Hill, 152 Mo. 234; State ex rel. Hilbert v. Glaves, 268 Mo. 100; State ex rel. Rogers v. Patton, 79 Mo.App. 164. (2) The court erred in holding that the proviso at the end of Sec. 10497, R.S. for 1939, is mandatory and that the Consolidated School District No. 1, of Montgomery County, Missouri, is illegal and void, because the boundaries of said consolidated district omitted the 200-300 acre tract of land in Lincoln County, Missouri. Sec. 10497, R.S. 1939; Calvert v. Bates, 44 Mo.App. 626; State ex rel. v. Patton, 79 Mo.App. 164; State ex inf. Bothwell v. Schuster, 285 Mo. 399; State ex rel. Parman v. Manring, 332 Mo. 235; State ex inf. McAllister v. Bird, 295 Mo. 344; State ex inf. Gentry v. Lamar, 316 Mo. 721; State ex inf. Wright v. Morgan, 268 Mo. 265; State ex rel. v. Sullivan, 320 Mo. 362.

S. S. Nowlin and Glover E. Dowell for respondents.

(1) The following statutes and laws apply to this case. Secs. 10495, 10497, R.S. 1939; Laws 1913, p. 723, sec. 5; p. 510, sec. 5. (2) The incorporation of Consolidated School District No. 1 of Montgomery County, Missouri, was illegal and no corporate rights as a consolidated school district were ever acquired, because the notices of the school meeting and plats were not approved and signed by the County Superintendent of Schools of Lincoln County; and the case was not appealed to the state superintendent of schools. Sec. 10495, R.S. 1939; Cases cited under Point (3). (3) The incorporation of Consolidated School District No. 1 was a nullity, because in its organization common school district No. 30 was divided, so that the part of said district left out contained less than eight square miles of territory and twenty children of school age; and an assessed valuation less than fifty thousand dollars and twenty children of school age. A compliance with this prohibitive statute is jurisdictional. Sec. 10497, R.S. 1939; State ex rel. v. Clardy, 267 Mo. 371; Calvert v. Bates, 44 Mo.App. 626; Farber Consolidated School Dist. v. Vandalia School District, 280 S.W. 69; State ex rel. v. Potter, 191 S.W. 57; State ex rel. v. Scott, 264 S.W. 369; School Dist. v. Pace, 113 Mo.App. 134. (4) There was sufficient evidence, both oral and from the records, to establish the fact that the territory in Lincoln County was legally a part of common school district No. 30, of Montgomery County. State ex rel. v. Smith, 80 S.W.2d 858; State v. Potter, 191 S.W. 57; Rice v. McClelland, 58 Mo. 116; Bonsack v. School Dist., 226 Mo.App. 1238; Peter v. Kaufmann, 327 Mo. 915, 923, 38 S.W.2d 1062.

OPINION

Barrett, C.

By this proceeding in quo warranto fifty resident taxpayers of Montgomery County challenge the organization of Consolidated School District No. 1 and seek to oust its directors. Jurisdiction of the appeal is in this court because it involves the title to an office under the state. Const. Mo. 1945, Art. 5, Sec. 3; State ex inf. Thompson v. Bright, 298 Mo. 335, 250 S.W. 599.

In May 1946 nine common school districts were organized into a consolidated school district for the purpose of establishing and maintaining both elementary schools and a high school. Mo. R.S.A., Secs. 10493, 10495, 10497. In August and September 1946 the relators instituted this proceeding which was tried in April 1947. In the meanwhile the organization of the consolidated district was perfected and it has since performed the functions of such a district. Directors were elected, teachers were employed, taxes were collected and the consolidated school has been in operation since the 1946-1947 school year. The trial court was of the view that Section 10497 had been violated in the organization of the district and that, therefore, the consolidation was illegal and void. Accordingly the court issued an order ousting the respondents as directors of the district. In addition, upon this appeal by the respondents, the relators contend that the consolidation was illegal and void because Section 10495 had also been ignored and violated.

The controversy, as to both questions, turns upon the force and effect of this one fact and its attendant circumstances: Included in the nine common school districts is District No. 30, known as the Mudd District, on the Lincoln County-Montgomery County line adjoining the Beck District in Lincoln County. In the Beck District there is a 293 acre tract of land separated from the balance of the Beck District by a stream of running water which makes access to the Beck school inconvenient to children residing on the 293 acre tract. Consequently (Mo. R.S.A., Sec. 10410), in 1920, the 293 acre tract in Lincoln County was voted out of the Beck District and into the Mudd District in Montgomery County. When the nine common school districts were organized into Consolidated District No. 1 of Montgomery County the 293 acre tract of land in Lincoln County was omitted from the consolidation and it is with this fact alone that we are concerned upon this appeal. Otherwise it is conceded that the consolidated school laws were all complied with and that the consolidation was legal in all other respects.

The appellant respondents contend that there is no substantial evidence that the 293 acre tract was ever legally a part of the Mudd District. If that were true, of course, there could be no objection to its exclusion from the consolidation. That was the exact situation and the precise point involved in State ex rel. Frisby v. Hill, 152 Mo. 234, 53 S.W. 1062. In that case a forty acre tract of land had never been legally detached from common School District No. 1 and therefore it was not illegal in the formation of new District No. 6 to omit the land from the new district even though District No. 1 had once attempted, illegally, to vote the land out of its territory and District No. 6 had once attempted, illegally, to vote the land into its territory. But in this case, even though the original school and district records are not now available and no one knows exactly what they contain, the evidence is almost conclusive that the 293 acre tract was legally voted out of the Beck District in Lincoln County and into the Mudd District in Montgomery County in 1920 and the meritorious question is the effect of its exclusion from the new Consolidated District No. 1 of Montgomery County.

In the first place the respondents contend that its exclusion invalidated the consolidation because the notices and plats proposing the consolidation and calling the election were not signed by the County Superintendents of Schools of both Lincoln and Montgomery counties. When the County Superintendent of Montgomery County first prepared the statutory notices and plats the 293 acre tract in Lincoln County was included in the proposed consolidation but the County Superintendent of Lincoln County refused to sign them and refused to agree to the proposed consolidation. Whereupon new notices and plats were prepared and the land in Lincoln County was omitted from the proposal and the consolidation of the nine districts was effectuated without the 293 acres.

The respondents' first point that the consolidation was void because the notices and plats were not signed by the County Superintendents of both counties is based upon the fact that the trial court found that the 293 acre tract was a part of the Mudd District or a part of the nine common school districts. The land was a part of one of the nine districts and, therefore, it is argued that the fact is and that the court found that consolidation could not be legally effectuated without the consent and signatures of the County Superintendents of both counties in accordance with the proviso of Section 10495: "Provided, that all...