State Ex Inf. Simrall v. Clardy

• Decision Date: 30 March 1916
• Citation: 185 S.W. 184,267 Mo. 371
• Parties: THE STATE ex inf. JAMES S. SIMRALL, Prosecuting Attorney, ex rel. BENJAMIN M. CLEMENTS et al., Appellant, v. GEORGE CLARDY et al
• Court: Missouri Supreme Court

185 S.W. 184

267 Mo. 371

THE STATE ex inf. JAMES S. SIMRALL, Prosecuting Attorney, ex rel. BENJAMIN M. CLEMENTS et al., Appellant, v. GEORGE CLARDY et al

Supreme Court of Missouri, First Division

March 30, 1916

Appeal from Clay Circuit Court. -- Hon. Frank P. Divelbiss, Judge.

Affirmed.

Kenneth McC. DeWeese for appellant.

(1) The fact that a city, town or other community has become incorporated by performing the conditions and complying with the statutory requirements prescribed by a general law must be proved. 1 Jones on Evidence, sec. 115, p. 550; Hamilton v. Carthage, 24 Ill. 22-23. Upon a direct proceeding by quo warranto or otherwise to test the validity of the organization of a municipal incorporation, it is necessary to show the manner of the organization under the charter, or that all of its requirements have been complied with. State v. Frost, 103 Tenn. 685; State v Bilby, 60 Kan. 130; People v. Linden, 107 Cal 94; Kane & Co. v. School District, 48 Mo.App. 408. (2) If a statute creating a corporation and providing for its proceedings shall require such proceedings to be preserved in a record kept for that purpose, then such record is the only proper evidence of such proceedings and the proceedings of a board of school directors must be shown by their record. Kane & Co. v. School District, 48 Mo.App. 408; State v. Lawrence, 178 Mo. 374. (3) The answer of the defendants did not state facts sufficient to show or constitute any lawful warrant of authority to the defendants to use or exercise the functions of a board of directors of said consolidated school district.

Ralph Hughes and Martin E. Lawson for respondents.

There seems to be no question about the fact of compliance with the law, but appellant questions the proof of those facts. The errors claimed are based upon the proposition that parol evidence cannot be adduced to show facts which actually transpired at the meeting for the purpose of organizing said district which the clerk did not record in the minutes. It will be observed that the minutes of the meeting of organization are very brief, being in fact but a synopsis of what really transpired at the meeting. It is practically the uniform rule that in such instances parol evidence is permissible to explain the record and supply omissions therein. Trustees v. Wimberly, 2 Tex. Civ. App. 404; Morgan v. Wilfley, 71 Iowa 212; Township v. Codding, 42 Kan. 649; Gilmer v. School District, 136 P. 1086; Tucker v. McKay, 131 Mo.App. 728; Nehrling v. Herold Co., 112 Wis. 558; Railroad v. Douglas County, 103 Wis. 75; Watts v. Levee District, 164 Mo.App. 263.

RAILEY C. Brown, C., dissents as to result only.

OPINION

RAILEY, C. --

This is an information in the nature of quo warranto, exhibited by the prosecuting attorney of Clay County, Missouri, at the relation of Benjamin M. Clements, John Filger and Philip Klamm as the board of directors of School District Number Four in Clay County, against George Clardy, Ernest Capps, John Filger, John M. Blevins, James Allen and Lee Williams, assuming to act as the board of trustees of an alleged consolidated school district styled "Consolidated School District Number One of Clay county, Missouri." Its purpose is to test the validity of the organization of the district under the act of the Legislature approved March 14, 1913, entitled, "An Act to provide for the organization of consolidated schools and rural high schools, and to provide State aid for such schools, with an emergency clause."

The answer denies the usurpation charged and proceeds as follows:

"Further answering, these defendants say that heretofore a petition signed by more than twenty-five qualified voters of the community hereinafter described, was filed with the county superintendent of public schools of Clay County, Missouri, showing that they desired to form said community into a consolidated school district under the provisions of an act of the Legislature of the 47th General Assembly of Missouri, entitled, 'An Act to provide for the organization of consolidated schools and rural high schools, and to provide State aid for such schools, with an emergency clause,' approved March 14, 1913; that on receipt of said petition, the county superintendent of schools visited said community and investigated the needs of the community and determined the exact boundaries of the proposed consolidated district, locating the boundary lines as in his judgment would form the best possible consolidated district, having due regard also to the welfare of adjoining districts; that said county superintendent of schools called a special meeting of all the qualified voters of the proposed consolidated district for considering the question of consolidation, by posting within the proposed district ten notices in ten public places, stating the place, time and purpose of said meeting, at least fifteen days prior to the date set for said meeting, and also posted within said district fifteen days prior to the date of said special meeting at least five plats of the proposed consolidated district, which plats and notices were posted within thirty days after the filing of said petition; that said special meeting was called to meet at the hall in Linden, Missouri, on April, 20, 1914, at two o'clock P. M., as stated in said notices.

"These defendants further state that the said county superintendent of schools filed a copy of the petition and of the plat aforesaid with the county clerk of Clay County, Missouri, and that he sent and took one of said plats to the said special meeting, which he attended in person, and on the date and at the hour aforesaid, said county superintendent of schools called said meeting to order in person; that at said meeting, John M. Blevins was elected chairman and Ernest Capps was elected secretary of said meeting; that thereupon, the meeting proceeded to vote by ballot upon the proposition to organize the said consolidated district, those voting for such organization having upon their ballot the words 'For Organization,' and those voting against the organization having on their ballots 'Against Organization,' and each person desiring to vote advanced to the front of the chairman and deposited his ballot in the box used for that purpose. When all present had voted, the chairman appointed two tellers who called each ballot aloud and the secretary kept a tally and reported to the chairman who announced the result of the vote, and a majority of the votes being cast for organization, the chairman so declared, and declared the Consolidated District No. 1 organized, and called for the next order of business, which was the election of six directors, two of whom were to be elected for three years, two for two years, and two for one year, each director being elected separately and the result announced in the manner prescribed for organization, and these defendants were, in said manner and in accordance with law, duly elected directors of said Consolidated School District No. 1, they duly qualified and have since then been, and are now, acting as such board of directors; that the chairman and secretary of said special meeting kept a record of the proceedings thereof, which they certified to the county clerk of Clay County, Missouri, in which said entire consolidated school district is located, and the county school superintendent of Clay County, Missouri, filed a copy of the petition and of the plat of said proposed county school district with the county clerk of said Clay County, Missouri."

The appellants, not challenging the sufficiency of the answer replied with a general denial. On the trial the appellant assumed the burden of showing the validity of the organization of the defendant district, and introduced: (1) A copy of a petition for the consolidated district, addressed to James A. Robeson, the superintendent of schools of the county, purporting to be signed by forty-one qualified voters of school districts number 50 and 63 and adjoining districts, notifying him of their purpose to organize a consolidated school district in accordance with said act, and asking him to visit the community to investigate its needs, and to make and post plats and notices of a special school meeting to vote on the organization of such consolidated district. This petition and notice purported to be filed in the office of the superintendent March 17, 1914. (2) A notice of such special meeting to be held at a place therein named, on April 20, 1914, at two o'clock, P. M., to consider the organization of such district and elect six directors therefor. This was signed by the county superintendent of public schools, and dated April 4, 1914. This was by the superintendent, taken to and laid before the special meeting, as was also the original plat made by him, a copy of which he filed in the office of the county clerk. (3) A plat of the proposed Consolidated School District No. 1, of Clay County, in townships 51 and 52, ranges 32 and 33 in said county. This plat was endorsed: "Filed in my office this 4th day of April, 1914. T. C. Stean, Clerk." Evidence was introduced showing that copies of the petition and notice were deposited with the clerk in his office at the time of the filing of the plat, and had been kept there ever since. (4) Another plat, substantially like the foregoing from the office of the county clerk, who testified that he made it for his own use. (5) "Minutes of Special Meeting of Patrons of Proposed Consolidated District," held at the time and place named in the notice. This was marked: "Filed in my office the 23rd day of April, 1914. T. C. Stean, County Clerk." It recited, among other things, the adoption of the proposed consolidation by a vote sixty-two to forty-nine, and the election by ballot of these respondents...