State ex rel. Burns v. Johnston

• Citation: 249 S.W.2d 357
• Decision Date: 09 June 1952
• Docket Number: No. 1,No. 42886,42886,1
• Parties: STATE ex rel. BURNS et al. v. JOHNSTON
• Court: Missouri Supreme Court

Page 357

249 S.W.2d 357

STATE ex rel. BURNS et al. v. JOHNSTON.

No. 42886.

Supreme Court of Missouri, Division No. 1.

June 9, 1952.

Paul W. Cisel, Windsor, for appellants.

Delton L. Houtchens, Clinton, for respondent.

HYDE, Judge.

Mandamus by School District R-VIII of Henry County of compel the township treasurer of Springfield Township to transfer to its treasurer $8,542.97 which he holds as funds of four common school districts of the township, as required by Section 165.690, RSMo 1949, V.A.M.S. These four districts were included in District R-VIII at an election held November 2, 1949. The Court ordered a peremptory writ and defendant has appealed.

The return to the writ was in the nature of a collateral attack upon the existence of District R-VIII. The return alleged as grounds of invalidity of the organization proceedings that notice of the election was not properly given; that the County Board of Education abused its discretion in designating the voting place; that the County Board did not submit a proper plan of reorganization; and that the Act, Section 165.657-165:707, RSMo 1949, V.A.M.S. is unconstitutional as an improper delegation of legislative power to County Boards of Education. The return constituted no defense because defendant had no right to make such a collateral attack. See State ex rel. Smith v. Gardner, Mo.App., 204 S.W.2d 319 and cases cited. The remedy for determination of this question of valid existence of the District is quo warranto by the State, although declaratory judgment might be available to districts being abolished by the reorganization but not to individuals. See Spiking School District No. 71, DeKalb County v. Purported 'Enlarged School Dist. R-II'. Mo.Sup., 245 S.W.2d 13. Therefore, such a collateral attack is not a valid ground for refusal of a public officer to perform a mandatory statutory duty. See State ex rel. Consolidated School Dist. No. 2, Clinton County v. Hunt, Mo.Sup., 199 S.W. 944; State ex rel. Consolidated School No. 1, Mississippi and New Madrid Counties v. Jones, 320 Mo. 353, 8 S.W.2d 66; See also as to constitutional questions State ex rel. State Board of Mediation v. Pigg, Mo.Sup., 244 S.W.2d 75 and cases cited. Moreover, the questions raised by the return have been decided; the constitutional question in State ex rel. Reorganized Dist. No. 4 of Jackson County v. Holmes, 360 Mo. 904, 231 S.W.2d 185 and the questions of notice and voting place in that case and in State ex inf. Stipp ex...