State ex rel. and to Use of Consolidated School Dist. No. 3 v. Miller

• Decision Date: 25 November 1930
• Citation: 33 S.W.2d 122,326 Mo. 830
• Parties: The State At Relation and To Use of Consolidated School District No. 3 of Franklin County and E. W. Gross et al., Directors, v. Walter E. Miller, County Clerk of St. Louis County, Dozier School District No. 60, Otto Plagmann et al., Directors, and Owen Gudermuth, Clerk, Appellants
• Court: Missouri Supreme Court

33 S.W.2d 122

326 Mo. 830

The State At Relation and To Use of Consolidated School District No. 3 of Franklin County and E. W. Gross et al., Directors, v. Walter E. Miller, County Clerk of St. Louis County, Dozier School District No. 60, Otto Plagmann et al., Directors, and Owen Gudermuth, Clerk, Appellants

Supreme Court of Missouri

November 25, 1930

Appeal from Circuit Court of St. Louis County; Hon. J. C Kiskaddon, Judge.

Affirmed.

Walter Wehrle for appellants.

(1) The plats posted and filed were lacking in uniformity, misleading and could not convey definite information to the parties whose lands were to be affected. State ex rel Consolidated District v. Curtright, 205 S.W. 248. (2) The County Superintendent of Franklin County failed to file with the County Clerk of St. Louis County a copy of the petition signed by twenty-five qualified resident taxpayers. Sec. 11259, R. S. 1919; State v. Clardy, 267 Mo 382, 185 S.W. 187. (3) The only record of the action of the County Superintendent required to be made is the provision of the law requiring him to file with the County Clerk the plat of the district and a copy of the petition signed by the twenty-one qualified resident taxpayers. State v. Ross, 286 S.W. 728. (4) In case the district as established includes territory in more than one county, a copy of the petition and plat is required to be filed with the County Clerk of each county. State ex rel. v. Glaves, 268 Mo. 105. (5) Sec. 11140, R. S. 1919, requires an enumeration of children of school age to be made, and the enumeration lists to be filed with the County Clerk; and the lists, when so filed, become a part of the record, and are, in the absence of fraud, the only legitimate evidence of the enumeration to be considered in a proceeding of this kind. State v. Ross, 286 S.W. 728. (6) The Act of 1921, Laws 1921, p. 654, is unconstitutional. It contains more than one subject which is not clearly expressed in the title. The title is misleading and not broad enough to cover the amendment to Sec. 11259, R. S. 1919, attempted to be embraced therein. Sec. 28, Art. 4, Mo. Constitution; State ex rel. Greene Co. v. Gideon, 210 S.W. 358; Williams v. Railroad, 233 Mo. 667; St. Louis v. Weitzel, 130 Mo. 616; State ex rel. v. Revelle, 257 Mo. 538. The title to the Act of 1921 is identical with the title to Sec. 11259, R. S. 1919; it does not contain any reference to the amendment to Section 11259. (7) Sec. 11207, R. S. 1919, absolutely prohibited the formation of this consolidated district -- a district formed of territory lying in two counties, with no intervening stream.

Joseph C. McAtee, James Booth and Virginia Booth for respondents.

(1) The respondent district was formed under the provisions of Sec. 11259, R. S. 1919, and amendments thereto. Laws 1921, p. 655; State ex rel. Fry v. Lee, 284 S.W. 129. (2) Literal compliance with the law relative to consolidation of school districts is not required where non-compliance has caused no injury. State ex rel. Gentry v. Sullivan, 8 S.W.2d 616; State ex rel. v. Thompson, 250 S.W. 84; State ex rel. Thompson v. Pugh, 250 S.W. 599; State ex rel. Lincoln v. Bird, 244 S.W. 938. (3) The determination of the boundaries of the proposed consolidated district is one for the solemn discretion of the County Superintendent of Schools and the courts have uniformly refused to review his action. State ex rel. v. Scott, 264 S.W. 368. (4) The courts will take judicial notice of the effect of alternate rain and sunshine on posted notices and plats. State ex inf. Mansur ex rel. Fowler v. McKown, 290 S.W. 123. (5) Section 28, Article IV, of the Constitution of Missouri, was not violated by title to Act of 1921. Reference in a title to a prior statute is sufficient. Asel v. City of Jefferson, 287 Mo. 196. (6) The law presumes that the officers did their duty and that the petition, plats and notices were properly signed. And where, as here, the oral testimony as to such signing was conflicting, the finding by the trial court for relators was conclusive. State ex inf. Mansur v. McKown, 290 S.W. 123. (7) It is sufficient under the statute if the area contained within the proposed district was fifty square miles or an enumeration of at least two hundred children of school age. Laws 1925, p. 331; State ex rel. Gentry v. Lamar, 291 S.W. 458. (8) The constitutional issue raised by appellants has been ruled adversely to them, and the statute under which the consolidation was effected has been ruled to be constitutional, and that issue is no longer a pending one. State ex inf. v. Morgan, 268 Mo. 265; State ex rel. Clark v. Gordon, 261 Mo. 631. (9) The plats made by the county superintendent complied with the law in all respects. The following was written on all the plats: "The above proposed consolidated school district will consist of all the present school district of Pacific, Missouri, and the Dozier School District No. 60 of St. Louis County, Missouri. When consolidated the district will be known as Consolidated School District No. 3 of Franklin County, Missouri." Id certum est quod certum reddi potest. A similar plat has been held sufficient. State ex rel. v. Wright, 270 Mo. 376.

OPINION

White, J.

The relators, June 20, 1928, filed petition in the Circuit Court of St. Louis County, praying for an alternative writ of mandamus commanding the defendant Walter Miller, County Clerk of St. Louis County, "to file for record in his office the estimate prepared by relators and presented to him for that purpose and to extend the school taxes of Dozier School District No. 60 on behalf of relators and to require the other defendants to turn over to relators the property and money on hand, books and papers of the said Dozier School District No. 60, or to show cause why they should not do so, and that upon a final submission the alternative writ be made peremptory."

The petition set out the facts showing the organization of Consolidated School District No. 3, under Section 11259, Revised Statutes 1919, as amended by the Act of 1921 (Laws 1921, page 654). The district was formed by consolidating a district called the Pacific District in Franklin County with Dozier School District No. 60 in St. Louis County. From the plats in the record it seems that the town of Pacific in Franklin County laps over somewhat into St. Louis County.

The petition alleged that the meeting for the purpose of organizing the consolidated school district was held March 1, 1928; that two hundred and sixty-three votes were cast for the organization, and forty votes cast against it, and the performance of all the preliminary steps necessary to the holding of the meeting. The answer and return of the respondents -- appellants -- to the alternative writ specifically denied each and every allegation of the petition.

The relators introduced the record of the proceeding to consolidate, which recites the facts alleged in the petition regarding the formation of the district and the vote cast at the meeting held for the purpose, and other evidence showing the steps taken. Among other things there was evidence that the number of children of school age in the consolidated district was less than five hundred -- four hundred and forty-eight in the Pacific District, and about twenty-one in the Dozier District. The respondents -- appellants -- then introduced evidence tending to show that the notices and the plats posted in accordance with the statute were lacking in uniformity; that some of them failed to have the necessary signatures and were defective in other particulars; that they were examined when they were put up, February 14, 1928, and that they remained in the same condition until they were taken down on the first day of March, after the meeting for the purpose of consolidation. The relators introduced evidence to show that all the plats were in the same condition, properly signed when put up. The circuit court on the evidence introduced found for the relators and ordered the remedy prayed in the petition. From that judgment the respondents appealed to the St. Louis Court of Appeals, which court transferred the case to this court on the ground that a constitutional question was involved.

I. Appellants first assert that Section 11259, as amended by the Act of 1921 (Laws 1921, p. 655), is unconstitutional. That section as amended provides that when resident citizens of a community desire to form a consolidated school district a petition of at least twenty-five voters of the said county shall be filed with the county superintendent of public schools. The county superintendent upon receipt of the petition shall investigate the needs and determine the boundary of the proposed consolidated district and so locate the boundary lines as will in his judgment form the best possible consolidated school district, having due regard for the welfare of the adjoining districts. He shall call a special meeting of all the qualified voters of the proposed consolidated district for the purpose of considering the question of consolidation. He shall make this call by posting within the proposed district ten notices in public places stating the time, place and purpose of the meeting, which shall commence at two o'clock on the date set. He shall also post in that territory five plats of the proposed consolidated district. The notices and plats shall be posted fifteen days prior to the date of the special meeting and within thirty days after the filing of the petition. The county superintendent shall file a copy of the petition and of the plat with the county clerk, and shall send or take one plat to the special meeting.

The section then provides the method of proceeding at the meeting.

The petition was filed with the Superintendent of Schools of Franklin County February 8,...