State ex inf. Major v. Woods
| Decision Date | 21 March 1911 |
| Parties | THE STATE ex inf. ELLIOTT W. MAJOR, Attorney-General, v. ROY C. WOODS et al |
| Court | Missouri Supreme Court |
Writ of ouster granted.
Elliott W. Major, Attorney-General, Wm. R. Gentry and Johnson, Houts Marlatt & Hawes for informant.
(1) Quo warranto is a proper proceeding to determine the question of the legality of the organization of a municipal corporation. 32 Cyc. 1424; High's Extraordinary Legal Rem., sec. 695. In such proceedings the court is not limited to an examination of the record but may inquire into the facts upon which the jurisdiction of the court is founded. State ex rel. v. Coffey, 59 Mo. 59; State ex rel. v McReynolds, 61 Mo. 203; State ex inf. v. Bellflower, 129 Mo.App. 138; State ex rel. v. Fleming, 147 Mo. 1. And in a quo warranto proceeding the court may determine whether or not the order of incorporation was obtained by fraud by the court, or fraud practiced upon the court. State ex rel. v. Fleming, 147 Mo. 1; State ex rel. v. Fleming, 158 Mo. 562; State ex rel. v Job, 205 Mo. 1; 32 Cyc. 1424. (2) The order of the county court incorporating the city of Wellston was void: (a) Because the petitions for incorporation did not describe the commons appertaining to the proposed city, nor did they allege that there were no commons. The statute requires that the petition shall describe the commons of the proposed incorporated city. The jurisdiction of the court depends upon a statutory petition having been filed. All jurisdictional facts must affirmatively appear upon the face of the proceedings and no presumptions are indulged as to matters not so appearing. State ex rel. v. Metzer, 26 Mo 65; State ex rel. v. Page, 107 Mo.App. 213; State ex rel. v. Heege, 37 Mo.App. 338; State ex rel. v. County Court, 66 Mo.App. 96; State ex rel. v. Higgins, 71 Mo.App. 180; State ex rel. v. Seibert, 97 Mo.App. 212; State ex rel. v. Wilson, 216 Mo. 277. (b) Because the order of incorporation shows that it is founded upon two petitions, one filed on May 3, 1909, and the other filed on May 26, 1909. The statute empowers the county court to act upon "a petition," not upon a number of petitions filed at different times. R. S. 1909, sec. 8529. (3) The action of the county court in causing its records to recite that the court had found that more than a majority of the taxable inhabitants of the proposed town of Wellston had signed the petitions for incorporation, when, as a matter of fact, the court at the time knew that they had not in truth found any such fact, and when the court knew that they had no evidence before them upon which they could make such finding, constitutes a fraud upon the law and upon the people affected thereby, and such fraud invalidates the order of incorporation. Burkharth v. Stephens, 117 Mo.App. 425; Baldwin v. Davidson, 139 Mo. 118. (4) The judges themselves were competent witnesses to prove the facts showing fraud. Pulliam v. Pensoneau, 36 Ill. 374; Taylor v. Larken, 12 Mo. 103; Garrett v. Stacy, 17 Mo. 601; Baker v. Lane, 137 Mo. 682; State ex rel. v. Breen, 85 P. 870; Black v. Miller, 75 Mich. 323; Wood v. Fout, 55 Mich. 185; Rodgers v. Manderville, 200 Ga. 727. But even if the judges were not competent to establish these facts, since the respondents interposed no objection at the trial, they will not now be heard to object. Ladd v. Williams, 79 S.W. 511; Mann v. Balfour, 187 Mo. 290; Fry v. Railroad, 200 Mo. 406.
J. C. Kiskaddon, B. L. Matthews and M. F. Farrow for respondents.
(1) The finding of the special commissioner in any case is not at all conclusive. It is merely advisory. It is the province and duty of the court to examine the law and the facts and correct any error the commissioner may have committed. State ex rel. v. Jenkins, 25 Mo.App. 484; State ex rel. v. Fleming, 147 Mo. 1; State ex rel. v Fleming, 158 Mo. 558; State ex rel. v. Weithaupt, 231 Mo. 449; Hall v. DeArmond, 46 Mo.App. 596. (2) The petitions for incorporation do not mention commons. This defect the special commissioner considers fatal. The answer and return alleges that Wellston has no commons appertaining to it, but there is no evidence on that point. If no commons appertain to a city seeking incorporation why mention commons at all? The petitioners are only required to mention commons if any appertain thereto. After all it may be a question what the statute means by commons. The commissioner cites a number of authorities, all of which show that at various times persons have dedicated to public use tracts of land by the name of commons and the cases cited by him show that the question before the court was what the donors in each particular case meant by the use of that word. The commissioner rightly holds that such commons are not common-law commons, but wholly ignores the fact that there might be some other kind of commons, and that the statute might mean some other kind. We discover on investigation that the word commons has been used in several senses, to-wit: 1, colloquially; 2, common-law commons; 3, civil-law commons. The authorities cited by the commissioner, and upon which he bases his finding, treat of the first class. Parties dedicated within the boundaries of a municipal corporation tracts of land to public use by the name of commons. An ordinary colloquial use applies the word commons to any public square or plat of land in a town. Even uninclosed vacant lots and blocks, although the property of a private individual, are frequently called commons. It is obvious that streets, alleys and public squares within the territory to be incorporated could have no special regulation or preservation by any order the county court could make, but in the case of a city of the third class would be regulated by the governing body of the city under the statutes conferring municipal powers. It would therefore be obviously idle to allege or ask any regulation of any such alleys, streets or public squares in the proposed municipality, and impracticable to set out their metes and bounds. But if it can be ascertained that the statute prescribing that a proposed corporation should in its petition for incorporation set out the metes and bounds of its commons and ask for their regulation, once applied to a condition of affairs in this State which has wholly ceased to exist, then the cases cited by the commissioner have no application whatever. Common-law commons are defined as follows: Common is an incorporeal hereditament; being a profit which a man hath in the land of another; as to feed his beasts, to catch fish, to dig turf, to cut wood, or the like; and hence common is chiefly of four sorts: common of pasture, of piscary, of turbary or of estover. 2 Black. Com. 32. It is obvious that such common does not include streets, alleys, public squares, etc., because such public places would not be "a profit a man hath" in the land of anybody, but would be for the general use of the public, whether residents of the corporation or not. In fact, common-law commons never existed in Missouri. But it may be said that one might dedicate land within the boundaries of a municipal corporation for a restricted public use, i. e., a park. But this would not be a common-law common, and its regulation would depend wholly on the act of dedication and the statutes governing the powers of municipality. No judgment of the county court could add or detract anything providing for its regulation. But there did once exist within the boundaries of what is now the State of Missouri a species of commons, which was the creation of the civil law. There are numerous decisions in the early reports of the Supreme Court of this State treating of titles derived from the sale of that kind of commons, but lawyers and courts in this State seem to have been so familiar with this kind of commons that they took no trouble to define just what these commons were. The following Missouri cases may afford some light on the subject: Harrison v. Page, 16 Mo. 182; Fair v. Pub. Schools, 39 Mo. 59. In the case of Choteau v. Eckert, 43 U.S. 344, decided in 1844, the nature of this kind of commons is clearly explained. Five years after the cession of sovereignty of France to the United States the legislative body, consisting of the Governor and judges of the District of Louisiana , passed an act, approved June 8, 1808, by which villages in the district were given the power to incorporate. 1 Ter. Laws, 184. The first section of that act required, that, to incorporate, the village should set forth the metes and bounds of its commons and pray for a police and "for the regulation and preservation of any commons appertaining thereto." It is obvious that this act, by the use of that language, did not refer to the streets, alleys, public squares or parks, which were within the boundaries of the proposed municipal corporation, but only to the "commons" as heretofore defined, which were outside of such boundaries. This act of 1808 has been continued in our statutes without change of language from that time to the present. 2 R. S. 1825, p. 764; R. S. 1835, p. 600; R. S. 1845, p. 1048; 1 R. S. 1855, p. 1524; G. S. 1865, p. 240; 2 R. S. 1879, p. 868; 1 R. S. 1889, p. 304; 2 R. S. 1899, p. 1224; R. S. 1909, sec. 8529. The inclusion of a prior statute in a subsequent revision adds nothing to its force. It is to be deemed a mere continuance of the first act. Strattman v. St. Louis, 211 Mo. 227. The intent of a statute must be found to ascertain its meaning, and for that purpose the circumstances existing contemporary with its passage should be taken into consideration. Keeny v. McVey, 206 Mo. 65; State v. Gmelich, 208 Mo. 159; Henry County v. Salmon, 201 Mo. 161; 23 Am. & Eng. Ency. Law (1 Ed.), 336. Bear in mind that the original Act of 1808 contemplated the...
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