State ex rel. and to Use of Behrens v. Crismon

• Decision Date: 16 July 1945
• Docket Number: 39326
• Citation: 188 S.W.2d 937,354 Mo. 174
• Parties: State of Missouri, at the Relation and to the Use of Raymond C. Behrens, Relator, v. Rufus Crismon, E. H. Stark, and Walter Grady, Judges of the County Court of Miller County, Missouri
• Court: Missouri Supreme Court

188 S.W.2d 937

354 Mo. 174

State of Missouri, at the Relation and to the Use of Raymond C. Behrens, Relator, v. Rufus Crismon, E. H. Stark, and Walter Grady, Judges of the County Court of Miller County, Missouri

No. 39326

Supreme Court of Missouri

July 16, 1945

Original Proceeding in Mandamus.

ALTERNATIVE WRIT MADE PEREMPTORY.

Alternative writ made peremptory.

Scott Peters and Paul E. Allen for relator.

(1) The alternative writ was properly granted and issued, and should be made peremptory. Art. VI, Sec. 3, Mo. Constitution; State ex rel. v. Deatheridge, 120 S.W.2d 193; State ex rel. v. Brown, 48 S.W.2d 857. (2) The petition filed with respondents by relator, asking the county court to submit Article 10 of Chapter 46, R.S. 1939, to a vote of the people of the proposed road district, was in proper form. Sec. 8704, R.S. 1939. (3) The town of Bagnell is a "town" within the meaning of the provisions of Article 10 of Chapter 46, R.S. 1939, having been incorporated by the County Court of Miller County on May 6, 1926, and such corporation has never been dissolved. Secs. 7295, 7297, R.S 1939; State ex rel. v. Bolche, 89 Mo. 188, 1 S.W 234. (4) Respondents had no discretion in the matter, but were duty-bound to make an order that Article 10 of Chapter 46, R.S. 1939 be submitted to the voters of the proposed special road district at the next general election, or at a special election to be held for that purpose, their duty in the premises being purely ministerial and not judicial. Sec. 8704, R.S. 1939; State ex rel. v. Smith, 107 S.W. 1051, 129 Mo.App. 49; State ex rel. v. Lemay Ferry Sewer Dist., 61 S.W.2d 724, 332 Mo. 965; State ex inf. Atty. Gen. v. Hughesville Special Road Dist., 6 S.W.2d 594. (5) Motion for judgment on the pleadings is proper pleading, and should be sustained. State ex rel. v. Thompson, 289 S.W. 338.

Robert M. Fendorf, Prosecuting Attorney of Miller County, for respondents.

(1) The county court exercises judicial functions in creating a road district. State ex inf. v. Colbert, 273 Mo. 198, 201 S.W. 52. (2) The Village of Bagnell is not a town or village within the meaning and intent of Article 10, Chapter 46, R.S. 1939. Art. 10, Chap. 46, R.S. 1939; Holdaway v. St. Louis-S.F. Ry. Co., 269 S.W. 641; Iba v. Hannibal & St. Joseph R. Co., 45 Mo. 469. (3) Mandamus is not a writ of right, and will be denied when in a collateral matter it would decide questions of importance between persons not parties to the proceeding, or where the public interest is concerned and may be injuriously affected. State ex rel. v. Cottengin, 172 Mo. 129, 72 S.W. 498; State ex rel. Davis v. State Highway Comm., 312 Mo. 230, 279 S.W. 689; State ex rel. Cranfill v. Smith, 330 Mo. 252, 48 S.W.2d 891.

Leedy, J. All concur except Gantt, J., absent.

OPINION

LEEDY

Relator and other resident taxpayers of certain territory in Miller County desired to organize the same into a special road district aggreeably to the provisions Art. 10 Chap. 46, R.S. '39. ^[1] To that end, and as one of the requisite steps under the statutory scheme for establishing such districts [Sec. 8704], they filed a petition in the county court of said county, of which the respondents were and are the judges, asking the court to submit to a vote of the people of such proposed special road district the question of the adoption of Art. 10, supra. The respondent judges denied said petition. Whereupon relator, alleging said action to have been arbitrary and capricious, applied to this court for mandamus to compel the submission of said question. Our alternative writ issued, and respondents made return. On the coming in of the return, relator filed a motion for judgment on the pleadings which had the effect of admitting all facts well pleaded in the return. State ex rel. Russell v. State Highway Commission, 328 Mo. 942, 42 S.W. 2d 196. The facts not being in dispute, the issues presented are questions of law.

The questions raised, or sought to be raised, by respondents are two: (1) That the village of Bagnell is not a town or village within the meaning of Sec. 8673, ^[2] et seq., and hence want of compliance with one of the conditions prescribed by said statutes for the organization of such districts; and (2) Inequitable and unjust consequences would result from the formation of such proposed district, for which reasons, and both of them, it is alleged, the petition in the county court was denied.

The proposed road district consists of territory in Miller County not exceeding eight miles square, wherein is located Bagnell, a village containing less than one hundred thousand inhabitants. Said county is not under township organization, nor does it contain fifty thousand inhabitants, or more, and lie adjoining a city of three hundred thousand inhabitants. Thus it appears that all the requirements of the statutes, supra, have been met, unless there is validity in the first of respondents' foregoing claims.

For present purposes it will be assumed, as contended by respondents, that the term "village," as used in Sec. 8673, means an incorporated village. ^[3] Passing, then, to a consideration of the facts, upon which it is asserted that the village of Bagnell is no longer "a town in fact or reality," but exists "merely on paper," we find the return makes the following allegations: That respondents admit that "Bagnell is a village of said county," although they deny it "is an incorporated town or village within the meaning and intent of" the statutes, supra; that the townsite of Bagnell was laid out and platted in 1883-1885 by William Bagnell; that it was not incorporated at that time, but for years thereafter was a ferry crossing, a trade center, and an important point for the shipment of railroad ties.

The return further avers: "In 1926 the town was incorporated by the county court of Miller County. During the construction of the Bagnell Dam, three disastrous fires wiped out most of the buildings in the town proper, and in May, 1943, a record flood of the Osage River destroyed other buildings. The Missouri Pacific Railroad continues to maintain a depot for one train on a three-day-per-week schedule, but other than the depot there is not a store of any description or any other business establishment whatsoever in the whole incorporated area. The river ferry operated for so many years at Bagnell went out of business because a state highway passes across the Bagnell Dam only a few miles away. The United States Postoffice at Bagnell was also discontinued several years ago. Most of the former inhabitants have moved away. The corporate boundaries of 1926 included 330 acres of land, and included all the land embraced within one entire common school district (District 48), the William Bagnell platted townsite being only a small part of the area included within the corporate limits. Most of the land at the time of the incorporation was and since has been used for agricultural purposes, a good part of which is rough and hilly and used only for pasture. Few of the streets laid out by William Bagnell were ever opened up for public travel, and most of the lots, blocks and streets platted out by him have long since been obliterated as such and now lie in fields and pastures without having any semblance of ever having been townsite property. In one section of the William Bagnell townsite up a hollow or ravine, commonly known as the "old town" or "Pennytown," is a group of about six scattered houses now occupied. About half a dozen more scattered residences are occupied half a mile away in the vicinity of the railroad depot near the Osage River and in what used to be the main part of the village. Farm and pasture land lies between and all around the two groups of houses. No trustees for the town were elected, no town taxes were levied and no municipal functions were carried on during the eleven years from 1933 to 1943, inclusive. But in the spring of 1944, in an attempt to revive and qualify Bagnell as a town for the formation of the proposed road district a board of trustees was elected from the few adult inhabitants of the incorporated area." (Italics ours.) Furthermore, it is admitted in respondents' brief that the corporation "has never been formerly dissolved by an order of the county court."

We think respondents' contentions overlook certain fundamental principles of the law relating to the municipal corporations. "The power to create or establish municipal corporations, or to enlarge or diminish their area to reorganize their governments, or to dissolve or abolish them altogether is a political function which rests solely in the legislative branch of the government, and in the absence of constitutional restrictions, the power is practically unlimited." 37 Am. Jur., Municipal Corporations sec. 7, p. 626. In that connection this court has said: "It has long been the rule in this state, and generally throughout the country, that the power of the legislature in the creation of public corporations . . . is absolute except where limited by the constitution. The legislature may also change, divide, consolidate and abolish them as the public welfare demands." State ex rel. Consolidated School District No. 8 of Pemiscot County et...