State Ex Inf. Rosenberger v. Town of Bellflower

• Decision Date: 18 February 1908
• Citation: 108 S.W. 117,129 Mo.App. 138
• Parties: STATE ex inf. ROSENBERGER, Appellant, v. TOWN OF BELLFLOWER et al., Respondents
• Court: Missouri Court of Appeals

108 S.W. 117

129 Mo.App. 138

STATE ex inf. ROSENBERGER, Appellant, v. TOWN OF BELLFLOWER et al., Respondents

Court of Appeals of Missouri, St. Louis

February 18, 1908

Appeal from Montgomery Circuit Court.--Hon. James D. Barnett, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

E. P Rosenberger for appellant.

(1) The validity of the charter of a town can only be contested by a proceeding in quo warranto. Kayser v. Trustees of Bremen, 16 Mo. 88; St. Louis v. Shields, 62 Mo 247; State ex rel. v. Flemming, 147 Mo. 1; Parker v. Zeisler, 73 Mo.App. 541; State ex rel v. Birch, 186 Mo. 205; Bank v. Rockefeller, 195 Mo. 52. (2) Under the act concerning the incorporation of towns (R. S. 1899, sec. 6004) a county court has no power to incorporate therewith a district of farming country adjoining a town or village. The word "commons" as used in that statute means lands included in or belonging to a town set apart for public use. And where the town and outlying district, embracing such farm lands, are incorporated as an entirety, and on a petition representing the whole territory, those elected as trustees of the corporation, have no authority to act, even within the proper limits of the town, and for exercising their functions of office they may be proceeded against by quo warranto. State ex rel. v. McReynolds, 61 Mo. 203; State ex rel. v. Campbell, 120 Mo. 402; State ex rel. v. Flemming, 185 Mo. 566; State ex rel. v. Jenkins, 25 Mo.App. 484.

W. B. M. Cook for respondents.

(1) When the proceeding is to restrain a corporation from the lawful exercise of a franchise to it belonging, or to oust a corporation from the exercise of a franchise which it usurps, it must be against the corporation itself, and not against its officers. 23 Am. and Eng. Ency. of Law (2 Ed.), pages 622, 623. (2) The effect of bringing the proceedings against the corporation in its corporate name is to admit the corporate existence. State ex rel. v. Gravel Road Co., 37 Mo.App. 496; State ex rel. v. Gravel Road Co., 187 Mo. 446. (3) An order made by the county court, incorporating a town or village, is a judgment having the force and effect of other judgments rendered by courts of competent jurisdiction, and is not open to collateral attack, unless it is void on its face. There can be no question about the legality of the proceedings of the county court in this case, and its order and judgment is therefore binding, and the validity of its judgment cannot be attacked in this proceeding. State ex rel. v. Huff, 105 Mo.App. 354; State ex inf. v. Fleming, 147 Mo. 1; State ex inf. v. Fleming, 158 Mo. 558; State v. Fuller, 96 Mo. 165; Macey v. Stark, 116 Mo. 481; Leonard v. Sparks, 117 Mo. 103. (4) "The inclusion of agricultural lands used solely for farming purposes, and not laid off in blocks, lots or commons, within the corporate limits of a city or town, will not invalidate the intended incorporation. The fact that such lands have been included within the corporate limits of said town or village, will not operate to defeat the corporation thus created." State ex rel. v. Campbell, 120 Mo. 396; Burns v. Egerton, 143 Mo. 563.

OPINION

BLAND, P. J.

--In the year 1892 forty acres of land lying in the eastern part of Montgomery county was laid off in lots and blocks by the owner, platted as a townsite and named Bellflower; in the year 1894, an adjoining forty-acre tract was laid off in lots and blocks and platted as an addition to the town. In 1903 and 1904 the Chicago, Burlington & Quincy Railroad Company built a railroad touching the northwest corner of the town and running thence in a northeasterly direction, leaving the whole of the town on the south side of the railroad track. H. B. Scott acquired a tract of land on the north side of the railroad and adjacent to the town. He subdivided a portion of this tract into lots and blocks, platted the same and christened it New Bellflower. He so laid off his town as to leave a wedge-shaped piece of land containing thirty-nine acres, between the town of Bellflower and New Bellflower. Both towns have built up and are in a prosperous and growing condition. They are connected by two roads, an old county road on the east, now called Main street by both towns, and by another road west of the railroad depot. On December 19, 1904, two-thirds of the inhabitants of both towns presented a petition to the county court asking that the two towns be incorporated as one under the name of the town of Bellflower. The territory which the petition asked to be incorporated is described as follows: "Commencing at the northeast corner of the southeast quarter of the southeast quarter of section 15, township 49, range 4 west, thence west to the northwest corner of the east half of the southwest quarter of the southeast quarter of section 16, township 49, range 4 west, thence south to the southwest corner of the east half of the southwest quarter of the southeast quarter of section 21, township 49, range 4 west, thence east to the southeast corner of the southeast quarter of section 22, township 49, range 4 west, thence north along the section line to the place of beginning, and all lying and being in Montgomery county, Missouri." This territory includes not only all the land laid off in lots and blocks in both towns but also over six hundred acres of farm land surrounding and adjoining the towns, and also the thirty-nine acre wedge-shaped tract lying between the two towns. The county court heard the petition on March 8, 1905, granted the prayer of the petitioners, entered a judgment incorporating the territory described into a village, and appointed five inhabitants of the village as trustees of the municipality to hold office until their successors should be duly elected and qualified at the annual election (for town officers) to be held on Tuesday, April 5, 1905. The appointees entered upon the duties of their offices and the village has continued to elect officers and exercise its charter powers as an incorporated village to the present time. This proceeding is by information in the nature of quo warranto to disincorporate the town and oust defendants from their offices as trustees thereof. There is no allegation in the information, of fraud or collusion on the part of the county court, or that any fraud or unfair means was practiced upon the court by the petitioners for the incorporation. The circuit court heard the cause and rendered judgment for defendants. Relator's sole contention for a reversal of the judgment is that the proceedings in the county court were "void and illegal and of no force and effect because the petitioners therein sought to incorporate within the limits of the territory therein described six hundred and ninety (690) acres of land used exclusively for farming purposes and for pastures, and sought to incorporate eleven hundred (1100) acres of land into a village.

"Because the said county court was without jurisdiction to grant the relief prayed for because the petitioners therein sought to incorporate within the borders of the town of Bellflower, and within the territory described in the petition, a separate and distinct town known, platted and designated as the town of New Bellflower, said town of New Bellflower being a separate and distinct town from the old town, not adjacent to nor joining the old town, but on the contrary separated and isolated from said old town by a farm owned by one H. B. Scott, containing forty and five hundredths acres."

Summarily stated the relator's contention is that because there is a large area of farm lands embraced in the boundary of the corporation by the order of the county court the court exceeded its jurisdiction and its judgment of incorporation is void. The jurisdiction of county courts to incorporate towns and villages is conferred by the first clause of section 6004, Revised Statutes 1899, which is an exact copy of an Act approved March 8, 1871 (2 Wagn. Stat. (1872), sec. 1, p. 1314). The clause provides as follows: "Whenever two-thirds of the taxable inhabitants of any town or village within the State shall present a petition to the county court of the county, setting forth the metes and bounds of their village and commons, and praying that they may be incorporated and a police established for their local government, and for the preservation and regulation of any commons appertaining to such town or village, and the court shall be satisfied that two-thirds of the taxable inhabitants of such town or village have signed such petition, and that the prayer of such petition is reasonable, the county court may declare such town or village incorporated,...