State ex inf. Taylor ex rel. Borgelt v. Pretended Consol. School Dist. No. 3 of St. Charles County, No. 42212

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPER CURIAM
Citation240 S.W.2d 946,362 Mo. 249
Decision Date11 June 1951
Docket NumberNo. 42212,No. 2
PartiesSTATE ex inf. TAYLOR, Attorney General ex rel. BORGELT et al. v. PRETENDED CONSOLIDATED SCHOOL DIST. NO. 3 OF ST. CHARLES COUNTY et al

Page 946

240 S.W.2d 946
362 Mo. 249
STATE ex inf. TAYLOR, Attorney General ex rel. BORGELT et al.
v.
PRETENDED CONSOLIDATED SCHOOL DIST. NO. 3 OF ST. CHARLES COUNTY et al.
No. 42212.
Supreme Court of Missouri, Division No. 2.
June 11, 1951.
Motion for Rehearing or to Transfer to Court en Banc Denied
July 9, 1951.

Page 947

Don C. Carter, Sturgeon, for appellants.

[362 Mo. 250] Wm. Waye, Jr., St. Charles, W. R. Gilbert, John R. Stockham, St. Louis, for respondents. Anderson, Gilbert, Wolfort, Allen & Bierman, St. Louis, of counsel.

[362 Mo. 251] BOHLING, Commissioner.

This is an appeal from a judgment of the Circuit Court of St. Charles county in favor of respondents in a quo warranto proceeding instituted by the Attorney General at the relation of interested resident taxpayers against Consolidated School District No. 3 of St. Charles county, Missouri, and the members of its board of directors to test the organization of said consolidated school district and to oust the individual respondents as directors of said consolidated school district. The trial court found for the respondents and dismissed the proceedings. The relators appealed. We have jurisdiction. State ex inf. Taylor ex rel. Zeliff v. Whitford, Mo.Sup. 233. S.W.2d 694.

Relators contend the organization of the consolidated school district was illegal and void because in its formation the territory of the [362 Mo. 252] Meridian Common School District (District No. 47) and the territory of Wide Awake Common School District (District No. 48) of St. Charles county were so divided that neither of the parts of said respective common school districts left out of said consolidated school district in its organization contained 'at least eight square miles of territory and twenty children of school age, or an assessed valuation of fifty thousand dollars and twenty children of school age' in alleged contravention of the proviso to Sec. 10497, R.S.1939, now Sec. 165.287, R.S.1949, hereinafter quoted.

It is admitted that all other provisions of the statutes were complied with in the organization of said consolidated school district. Consult Secs. 10493-10497, R.S.1939, see Secs. 165.277-165.287, R.S.1949. The material facts will be developed in the course of the opinion.

Respondents first contend the Meridian and Wide Awake districts were not de facto or de jure common school districts and there can be no objection to excluding them, or any part of either of them, from said Consolidated School District No. 3. They cite Sec. 10410, R.S.1939; State ex rel. Consolidated District No. 13, New Madrid County v. Smith, 337 Mo. 874, 86 S.W.2d 943, 944; State ex rel. Frisby v. Hill, 152 Mo. 234, 53 S.W. 1062, 1063(2). The trial court did not take this view of the law and the authorities relied upon do not establish respondent's position.

The details of the contention need not be developed because it is apparent from the agreed upon facts that Consolidated School District No. 3 of St. Charles County, Missouri, embraced the territory of Common School Districts Nos. 22, 23, 43, 44, 45, 46, 47, 48, 49, 50 and 51, and the Wentzville School District, all in St. Charles County, Missouri, except that portion

Page 948

of District No. 47, known as the Meridian School District, and District No. 48, known as Wide Awake School District, situate in Warren County, Missouri. It was further expressly agreed that said Meridian and Wide Awake common school districts had been acting under color of law and conducted and maintained their respective schools for many years up to the organization of said Consolidated School District, and had been so recognized by the public and public officers in the counties of St. Charles and Warren, State of Missouri, except that since April, 1945, the Wide Awake Common School District had not maintained a school within the district but had continued to function as a common school district with a duly elected board of directors and transported the children within the district to the schools of other districts by arrangements under the provisions of Sec. 10324, R.S.1939.

Thus, in the organization of respondent Consolidated School District No. 3, the Meridian and Wide Awake common school districts were recognized as de facto if not de jure common school districts by respondent consolidated school district, the public and public officials, [362 Mo. 253] and each had been functioning as such for many years prior to the organization of respondent consolidated school district. Neither the Meridian Common School District nor the Wide Awake Common School District or the board of directors of either of said districts are parties to this quo warranto proceeding. In these circumstances the corporate existence of the Meridian and Wide Awake common school districts is not open to collateral attack by respondents.

In Black v. Early, 208 Mo. 281, 303(I, II) 106 S.W. 1014, 1020(1, 2), we held, after reviewing authorities, that if a going school district, whether de jure or de facto, be without legal existence, it must be dissolved, if at all, by quo warranto and its corporate existence is not subject to collateral attack; stating: 'we conceive the law to be that a de facto body corporate, acting under color of law and legal right in conducting a public school for several years, is as free from collateral assaults on its corporate life as one de jure.' 208 Mo. loc. cit. 303 and 106 S.W. loc. cit. 1020, respectively. Consult also State ex rel. Consolidated School Dist. No. 2 v. Hunt, Mo.Sup., 199 S.W. 944, 945(I); School Dist. of Columbia v. Jones, 229 Mo. 510, 517(I), 129 S.W. 705, 707(1); State ex inf. Barker v. Smith, 271 Mo. 168, 196 S.W 17, 20; State ex rel. School Dist. No. 1 v. Miller, 113 Mo.App. 665, 88 S.W. 637; Gray v. School Dist. No. 73, 224 Mo.App. 905, 28 S.W.2d 683, 685[2, 5]; State ex rel. Smith v. Gardner, Mo.App., 204 S.W.2d 319, 321[2-4]; Spilker v. Bethel Special School Dist., Mo.App., 235 S.W.2d 79, 80; Spiking School Dist. No. 71 v. Purported Enlarged School Dist., No. 42019, Mo.Sup., 245 S.W.2d 13.

Respondents' case of State ex rel. Frisby v. Hill, supra, did not involve the legality of the corporate existence of a school district, but whether its annexation of and exercise of jurisdiction over a certain 40 acres theretofore detached from another district was valid, an issue which could be and was answered without affecting the corporate existence of the school district. 152 Mo. loc. cit. 241, 53 S.W. loc. cit. 1064. State ex rel. Consolidated Dist. No. 13 v. Smith, supra, was a mandamus proceeding to compel the State Auditor to register certain bonds of said consolidated school district, and in such proceedings the State Auditor may question he legality of the school district's corporate existence, such assault being considered, under the statutes, Sec. 3306, R.S.1939, now Sec. 108.240, R.S.1949, a direct as distinguished from a collateral attack; and the case is otherwise distinguishable on the facts. Consult State ex rel. Buckley v. Thompson, 323 Mo. 248, 19 S.W.2d 714, 718[3, 6, 8]; State ex rel. Consol. Dist. No. 9 v. Thompson, 325 Mo. 1170, 30 S.W.2d 603; State ex rel. School Dist. of...

To continue reading

Request your trial
4 practice notes
  • State ex rel. Hopkins v. Stemmons, No. 7604
    • United States
    • Missouri Court of Appeals
    • April 22, 1957
    ...253 S.W.2d 402, 404(1). See also State ex inf. Taylor ex rel. Borgelt v. Pretended Consolidated School Dist. No. 3 of St. Charles County, 362 Mo. 249, 255, 240 S.W.2d 946, 950(4); Warrington v. Bobb, Mo.App., 56 S.W.2d 835, It is obvious that the purpose of requiring a redemption bond is to......
  • Stine v. Kansas City, No. 25307
    • United States
    • Court of Appeal of Missouri (US)
    • June 1, 1970
    ...be done, that is, matters of substance, are mandatory. State ex inf. Taylor ex rel. Borgelt v. Pretended Consolidated School Dist. No. 3, 362 Mo. 249, 240 S.W.2d 946, 950(4, 5). Among the essential purposes of Chapter 341 is to ensure that in such cities plumbing practitioners shall possess......
  • State ex rel. Purdy Reorganized School Dist. No. II, Barry County v. Snider, No. 9051
    • United States
    • Court of Appeal of Missouri (US)
    • August 2, 1971
    ...a going school district may have a de facto existence, State ex inf. Taylor ex rel. Borgelt v. Pretended Consolidated School Dist. No. 3, 362 Mo. 249, 253, 240 S.W.2d 946, 948(3), and that the respondent is in no position to question the regularity or legality of relator's corporate existen......
  • Schmidt v. Goshen School Dist., Dist. No. 12, Cape Girardeau County, No. 28409
    • United States
    • Court of Appeal of Missouri (US)
    • June 17, 1952
    ...State ex rel. Frisby v. Hill, 152 Mo. 234, 53 S.W. 1062, and State ex inf. Taylor v. Pretended Consolidated School Dist. No. 3, Mo.Sup., 240 S.W.2d 946. Each of these cases has language to the effect that the corporate existence is not necessarily brought into question by an attack upon an ......
4 cases
  • State ex rel. Hopkins v. Stemmons, No. 7604
    • United States
    • Missouri Court of Appeals
    • April 22, 1957
    ...253 S.W.2d 402, 404(1). See also State ex inf. Taylor ex rel. Borgelt v. Pretended Consolidated School Dist. No. 3 of St. Charles County, 362 Mo. 249, 255, 240 S.W.2d 946, 950(4); Warrington v. Bobb, Mo.App., 56 S.W.2d 835, It is obvious that the purpose of requiring a redemption bond is to......
  • Stine v. Kansas City, No. 25307
    • United States
    • Court of Appeal of Missouri (US)
    • June 1, 1970
    ...be done, that is, matters of substance, are mandatory. State ex inf. Taylor ex rel. Borgelt v. Pretended Consolidated School Dist. No. 3, 362 Mo. 249, 240 S.W.2d 946, 950(4, 5). Among the essential purposes of Chapter 341 is to ensure that in such cities plumbing practitioners shall possess......
  • State ex rel. Purdy Reorganized School Dist. No. II, Barry County v. Snider, No. 9051
    • United States
    • Court of Appeal of Missouri (US)
    • August 2, 1971
    ...a going school district may have a de facto existence, State ex inf. Taylor ex rel. Borgelt v. Pretended Consolidated School Dist. No. 3, 362 Mo. 249, 253, 240 S.W.2d 946, 948(3), and that the respondent is in no position to question the regularity or legality of relator's corporate existen......
  • Schmidt v. Goshen School Dist., Dist. No. 12, Cape Girardeau County, No. 28409
    • United States
    • Court of Appeal of Missouri (US)
    • June 17, 1952
    ...State ex rel. Frisby v. Hill, 152 Mo. 234, 53 S.W. 1062, and State ex inf. Taylor v. Pretended Consolidated School Dist. No. 3, Mo.Sup., 240 S.W.2d 946. Each of these cases has language to the effect that the corporate existence is not necessarily brought into question by an attack upon an ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT