State ex rel. Consol. School Dist. No. 1, Miss. and New Madrid Counties, v. Jones

• Decision Date: 21 June 1928
• Docket Number: 28308
• Parties: The State ex rel. Consolidated School District of Mississippi and New Madrid Counties v. C. L. V. Jones, Clerk of County Court of New Madrid County
• Court: Missouri Supreme Court

8 S.W.2d 66

320 Mo. 353

The State ex rel. Consolidated School District of Mississippi and New Madrid Counties v. C. L. V. Jones, Clerk of County Court of New Madrid County

No. 28308

Supreme Court of Missouri

June 21, 1928

Writ awarded.

J M. Haw for relator.

(1) In support of the motion to strike out, relator submits the following reasons and authorities: (a) Respondent first sets out two objections to relator's application which virtually amount to a demurrer. He subsequently pleads to the merits. The two pleadings are inconsistent and cannot stand. Sec. 1224, R. S. 1919; Long v. Towl, 41 Mo. 398; Donahue v. Bragg, 49 Mo.App. 273; Taber v Wilson, 34 Mo.App. 89; Dunklin County v. Clark, 51 Mo. 60; Cramer v. Power & Light Co., 279 S.W. 46. The section of the statutes above cited is contained in the general code. A demurrer is recognized in this court in mandamus proceedings, and there is no reason why the same principle should not obtain. State ex rel. v Gordon, 268 Mo. 321, 223 Mo. 1; Sec. 1984, R. S. 1919. (b) Respondent also contends that it is necessary for relator to plead steps by which it was organized. This is not necessary, whether relator be a de facto or a de jure corporation. Black v. Early, 208 Mo. 303; School District v. Holmes, 53 Mo.App. 487; School District v. School District, 94 Mo. 617. This is especially true of relator, as its organization has been upheld by this court. State ex rel. v. Hackmann, 277 Mo. 56. The statutes expressly provide that school districts shall be corporations. Common School District, Sec. 11197, R S. 1919; Town and City Districts, Sec. 11236, R. S. 1919; Consolidated Districts, Sec. 11257, R. S. 1919. (c) Respondent's third contention is that no proper evidence of the organization of relator district was ever filed in his office. This in substance is a collateral attack on the legality of the organization of relator district. Such an attack cannot be made. State ex rel. v. Hunt, 199 S.W. 944; State ex inf. v. Smith, 271 Mo. 168; State ex inf. v. Woods, 233 Mo. 380; Black v. Early, 208 Mo. 307; Bank v. Rockefeller, 195 Mo. 15; State ex rel. v. Birch, 186 Mo. 205. The legality of the organization of relator district has been recognized by this court and cannot now be questioned. State ex rel. v. Hackmann, 277 Mo. 56. (2) If it be held that the motion to strike out respondent's return should not be sustained, still on the facts in the case the writ should be made peremptory. Technical objections to proceedings to organize consolidated school districts are not favored, since the school law was designed as a method workable by citizens not learned in the law and, therefore, no strict or technical construction is to be put on it. State ex rel. Morrison v. Simms, 201 S.W. 910; State ex inf. v. Jones, 266 Mo. 191; State ex inf. v. Clardy, 267 Mo. 371; State ex rel. Richart v. Stouffler, 197 S.W. 248; State v. Consolidated School District, 238 S.W. 820. (3) Respondent cannot avail himself of his own misconduct and failure to perform his duties as a defense to this action. Whatever delay there has been, has been brought about by him and the officials of Common School Districts No. 20 and 21. (4) Under all the facts in this case, it is the duty of the county clerk to extend the taxes in favor of relator. Sec. 11183, R. S. 1919; State ex rel. v. Hunt, 199 S.W. 944; State ex rel. v. Riley, 85 Mo. 156; State ex rel. v. Byars, 67 Mo. 706; State ex rel. v. Patton, 108 Mo.App. 26; State ex rel. v. Burford, 82 Mo.App. 343.

J. M. Massengill and Gallivan & Finch for respondent.

(1) The petition and alternative writ are insufficient in law to entitle relator to the relief prayed for, in that only conclusions of law are pleaded as to its right to relief, and to its legal capacity to sue and not the facts as to such right and capacity. State ex rel. v. Shinnick, 208 Mo.App. 287; State ex rel. v. Hudson, 226 Mo. 265; School Dist. v. School Dist., 94 Mo. 612; State ex rel. v. Thompson, 293 S.W. 398; Curry v. Cabris, 37 Mo. 334; State v. Everet, 52 Mo. 89; Hambleton v. Town of Dexter, 89 Mo. 191; State ex rel. v. Reynolds, 276 Mo. 694; Murrill on Mandamus, sec. 255; High on Ex. Leg. Rem. (3 Ed.) sec. 450; Spelling on Inj. & Ex. Leg. Rem., sec. 1567; Bliss on Code Pleadings, secs. 186, 246; Clark on Corporations, p. 42. (2) The peremptory writ should not issue for the reason the relator is guilty of such laches as bars any relief, if ever entitled thereto. State ex rel. v. Gibson, 187 Mo. 555; High on Ex. Leg. Rem. (3 Ed.) p. 38; Spelling on Inj. & Ex. Leg. Rem. (2 Ed.) secs. 1382, 1469; 33 C. J. 533; 38 C. J. 21. (3) The question as to whether any land in New Madrid County ever became a part of relator district was not raised in the case involving the registration of bonds of relator district. State ex rel. v. Hackmann, 277 Mo. 56. (4) Relator says in its brief that the respondent collaterally attacks its organization. The respondent merely contends that the territory lying in New Madrid County was never a part of relator district and that nothing was on file in his office that made it his duty to extend taxes on the lands in New Madrid County. State ex rel. School Dist. v. Curtright, 205 S.W. 248. (5) In its motion to strike respondent's return and in its brief relator attacks the return and says it is inconsistent, and relies on Sec. 1224, R. S. 1919, and cases cited. The Code of Civil Procedure does not apply to mandamus proceedings, and the cases cited in relator's brief are not controlling. State ex rel. Curran v. Williams, 96 Mo. 13; Smith v. County Court, 19 Mo. 433; State ex rel. v. Jones, 155 Mo. 573.

OPINION

White, J.

The relator filed in this court his petition for writ of mandamus to compel the respondent, Clerk of the County Court of New Madrid County, to assess, for taxes claimed to be due relator for school purposes, land in that county included in relator district.

Alternative writ was issued, to which respondent filed return, setting up four defenses to the writ: "First, that the petition and alternative writ did not show facts sufficient to entitle relator to the relief asked; second, that the petition and alternative writ did not show on its face legal capacity in relator to sue; third, facts are set out which respondent claims show that the relator is not entitled to maintain the action because it was never properly organized as a consolidated school district, and which show that it has no right to tax for the support of said district the land described (in the petition) in New Madrid County, and that school districts 20 and 21 in New Madrid County included such lands and had voted bonds to maintain schools in such districts; and, fourth, laches, which respondent claims bars relator's right to recover.

Relator filed a motion to strike out the return on the ground that it stated no defense to the action and no facts which would prevent the relief prayed for. This motion was taken with the case. Thereupon the relator, reserving his right to question the sufficiency of the return, filed a reply denying specifically the facts stated in the return, and setting up affirmative facts in relation to the issues tendered.

This court then appointed as commissioner Honorable Harry C. Blanton, of Sikeston, Missouri, to take evidence upon the issues. This evidence was accordingly taken and is before us for consideration.

I. Relator complains that the return combines both the functions of a demurrer and an answer, and therefore having answered the respondent waives his demurrer to the sufficiency of the petition and cannot question relator's right to sue. Since the relator's right to sue is questioned in the form of an answer as well as demurrer, it is unnecessary to consider whether that part of the return in the form of a demurrer is proper pleading.

Respondent contends that the general rules of the pleading do not apply to this case. The rule is that in a proceeding of this kind the alternative writ is generally taken as the first pleading and the return takes the place of an answer. [State ex rel. Wagner v. Fields, 263 S.W. 853.] Many other cases may be cited to the same effect. Section 1290, Revised Statutes 1919, provides that Article VI, Chapter 12, relating to amendments of pleadings shall apply to writs of mandamus. Some general rules of pleadings are applied to mandamus, by Sections 1983 and 1984, which provide for a plea to the return and reply or demurrer to such pleading. Averments sufficient to constitute a cause of action in an ordinary case would be sufficient in an alternative writ of mandamus.

The complaint of respondent is that the petition simply states conclusions and does not plead facts which show that the relator is in fact a consolidated school district with a right to sue. Section 1244, Revised Statutes 1919, provides that it shall not be necessary to plead evidence, and it has many times been held that it is only necessary to plead ultimate facts. In this case the petition and alternative writ allege that relator is, and ever since the 17th day of May, 1917, has been a consolidated school district of Mississippi and New Madrid counties, duly organized and existing under the laws of the State of Missouri, being a body corporate and having the right in its name to sue and be sued, and possessing the same corporate powers and governed the same as other school districts. We have been pointed to no ruling of this court where an averment of that character was held an insufficient statement of the incorporation of the party making it. It is generally the practice, when a corporation brings a suit, to state as the ultimate fact its corporate character and its right to sue in that form.

II. The respondent is in no position to question the corporate character of the relator....