State ex Inf. Mansur v. McKown

• Citation: 290 S.W. 123,315 Mo. 1336
• Decision Date: 20 December 1926
• Docket Number: 25097
• Parties: The State ex inf. A. Moody Mansur, Prosecuting Attorney of Ray County, ex rel. Michael Fowler et al., Appellants, v. John J. McKown et al
• Court: United States State Supreme Court of Missouri

290 S.W. 123

315 Mo. 1336

The State ex inf. A. Moody Mansur, Prosecuting Attorney of Ray County, ex rel. Michael Fowler et al., Appellants, v. John J. McKown et al

No. 25097

Supreme Court of Missouri

December 20, 1926

Appeal from Ray Circuit Court; Hon. Ralph Hughes, Judge.

Affirmed.

Milligan & Thompson and Lavelock, Kirkpatrick, Clark & Garner for appellants.

(1) Common-school districts are known by numbers; city, town and village school districts by the name of the incorporated city, town or village, located within the territorial limits of the school district. The petition, filed with the school clerks, called for a new school district, by the name of Elmira, that being the name of the incorporated village located within the territorial limits of the proposed new school district. Under the petition, if it is to be of any legal force or effect, the new school district to be formed if any, must be a village district, for a village district and only a village district is asked for in the petition, and no school district, other than that petitioned for could have been formed or decreed by the court. Under existing conditions, a village district could not have been formed. Secs. 11197, 11239, R. S. 1919; School District v. Wallace, 75 Mo.App. 327. (2) The petitions, signed by more than ten qualified voters in school districts 8, 9 and 11, are insufficient, not in proper form, and did not authorize the vote on change of boundaries at the annual meeting. (a) They are addressed to the board of directors, in each school district, and request action thereon by said boards. (b) The board of directors, in each school district, is requested to post notices, not the clerks of the districts. (c) The petition fails to aver the statutory requirements, namely: the facts, constituting the deemed necessity for the formation of the petitioned for new school district, and for this reason furnished no authority whatever, to the clerk to post notices of any character. (3) In School District Number 8, only five notices were posted. The one at the Linville corner was taken down by relators after the annual meeting and by them introduced in evidence at the trial of this cause. This notice, shows, on its face, that it was never signed, leaving to say the least, not more than four posted notices in this district. (4) Sec. 11201, R. S. 1919, relating to change of boundaries, contains the following: "If the assent to such change be given by the annual meeting of the various districts thus voting, or by the parts of the district to be divided, each part voting separately, the district shall be deemed formed from that date. . . . At all elections to change boundaries, the votes of those parties residing in the territory sought to be attached to or detached from a district shall be separately cast and separately counted by the parties or officers holding such election." It is admitted, at least, that the last-mentioned part of said section was not complied with. The trial court refused to consider this failure as in any way affecting the legality of the result. This, if the statute is to be observed, was error. (5) The law, providing for annual school meetings requires an accurate record to be kept of the proceedings of such meeting, and still further requires that the record, so made, shall be preserved in the school records of the district. Under such circumstances, such record is the evidence and the only proper evidence of the proceedings at the annual school meeting. Kane & Co. v. School District, 48 Mo.App. 414; State v. Lawrence, 178 Mo. 350. (6) This is a quo warranto proceeding. Quo warranto is a direct attack upon the sufficiency of the record. If the record, as written, was insufficient, and was not amended, so as to meet the demands of the statute, and there is no special averments in the answer, alleging, in detail, wherein the record was incorrect, oral evidence was not admissible for the purpose of explaining, varying, adding to or changing that record. State v. Dougan, 264 S.W. 999; State ex rel. v. Townsley, 56 Mo. 112; State ex inf. v. Hefferman, 243 Mo. 454. (7) The proceedings to elect directors in the newly-formed district are not in compliance with the statute and are illegal, in this: (a) The notice called for the election of six directors, and in obedience to said notice the assembled voters elected six directors, while it is now admitted by defendants and their counsel that if the district had been in fact formed, only three directors could have been elected. (b) No notice calling for the election of three directors, in this supposed school district, was ever given by any one. (c) The election of said six directors was not in accordance with the statute. Sec. 11208, R. S. 1919. See also Secs. 11194, 11199, R. S. 1919. (d) If the territory sought to be detached from each of the named districts was in truth and in fact legally voted out of the district, it at once became unorganized territory, and could not be converted into a city, town or village district, until after it had been formed and organized as a common-school district. Sec. 11236, R. S. 1919; School District v. Wallace, 75 Mo.App. 322. (8) The court erred in holding that a common-school district had been validly formed when the whole proceedings, shown by the pleadings and evidence, show an intention on the part of all concerned to form a town district.

James S. Simrall for respondents.

(1) The petitions and notices in each school district were legally sufficient. Mason v. Kennedy, 89 Mo. 23; State ex rel. v. Job, 205 Mo. 1; State ex rel. v. Gibson, 78 Mo.App. 175. (2) A proceeding by information in the nature of quo warranto is in the nature of an action at law, and findings of fact of the trial court, if supported by substantial evidence, are conclusive on appeal. State ex inf. McAllister v. Hall, 228 S.W. 1055; State by Hammett v. Stephens, 243 S.W. 89; State ex rel. Thompson v. Bright, 250 S.W. 599. (3) Minutes of meetings in the three common-school districts, as shown by the record thereof, were sufficient. State ex inf. v. Clardy, 267 Mo. 371; Tucker v. McKay, 131 Mo.App. 732; Critten v. New, 212 S.W. 46. (4) Sec. 11201, R. S. 1919, does not require separate voting by parts of school districts where the proposition is for the formation of a new district. Sec. 11201, R. S. 1919; State ex rel. v. Stone, 152 Mo. 202; State ex inf. v. Scott, 270 S.W. 382; State ex inf. v. Sweaney, 270 Mo. 685. (5) The attempted election of six directors of the newly-formed school district instead of three did not invalidate the organization of the new district. Three of the six were elected legal directors. Williams v. Lovelace, 90 S.W. 983. (6) Designation of the proposed new district by any particular name cannot affect its real legal status. School District v. Wallace, 75 Mo.App. 323; State ex inf. v. Scott, 270 S.W. 384.

OPINION

Walker, P. J.

This is a proceeding in the nature of a writ of quo warranto, under Article 13, Chapter 13, Revised Statutes 1919, to test the right of the respondents to act as directors of a school district, designated as the Elmira District. Upon a hearing the court found in favor of the respondents, John J. McKown, Jesse Gilmore and Henry Winger; and that the Elmira School District had been legally created and formed. From this judgment the relators have appealed.

Prior to the annual school meetings, held April 7, 1925, in Ray County, there were, among others three common-school districts located in the vicinity of the town of Elmira. The town had no school located therein. Part of the town was in Section 10, Township 54, Range 29, and the other part was located in the east half of Section 9 of the same township and range. Section 10 was included in common-school district Number Eight and the east half of Section 9 was included in common-school district Numer Nine; the other school district, near the town of Elmira, was known as Common-School District Number Eleven.

More than fifteen days before the date of the annual school meetings in each of the common-school districts petitions were presented to and received by the clerks of each of these districts. They were each signed by more than ten resident voters of said districts and asked a change so as to form a new school district by taking parts of common-school districts numbered Eight, Nine and Eleven, the new district thus to be formed to be known as the "Elmira School District." These notices are identical in phraseology. The petitions, after describing by metes and bounds the portions of the districts to be detached to form the new district, called for a vote on that proposition. The area of the district to be formed is stated in the petitions. The record discloses the proceedings had in each of the districts from which the new district was to be formed; these facts, if necessary to be considered, will be stated in the discussion of the relators' contentions as to the illegality of the proceedings.

After the vote on the proposition to form a new district had been taken resulting in an affirmative vote in each of the three districts on the proposition, notices were posted calling for a meeting on April 22, 1925, of the qualified voters in the newly-formed district for the election of directors for said district. When the meeting was held six directors were elected, as follows: J. J. McKown and J. M. Douglass, each for three years; Jesse Gilmore, for two years; W. M. James for two years; Henry Winger, for one year, and Edward K. Knutter for one year. On the 24th or 25th of April, 1925, these directors met in Elmira and organized by electing J. J. McKown chairman and J. M. Douglass secretary. Other business authorized to be performed by a board of directors of a school district was transacted by...