State ex rel. Crites v. West, 9569
| Decision Date | 03 May 1974 |
| Docket Number | No. 9569,9569 |
| Citation | 509 S.W.2d 482 |
| Parties | STATE of Missouri ex rel. John CRITES et al., Plaintiffs-Appellants, v. John S. WEST et al., Defendants-Respondents. |
| Court | Missouri Court of Appeals |
L. Joe Scott, Poplar Bluff, for plaintiffs-appellants.
Ted M. Henson, Jr., Poplar Bluff, for defendants-respondents.
This appeal is from an order of the Circuit Court of Butler County dismissing an alternative Writ of Mandamus which had been issued by the trial court on February 14, 1973. We affirm.
In Missouri, a county fire protection district is a creature of statute. The Butler County Fire Protection District exists by virtue of authority granted by chapter 321, RSMo 1969, V.A.M.S.
On January 9, 1973, initiative petitions were submitted to the board of directors of the fire district ordering them to call a special election to submit to the voters of the district the proposition: 'Shall the Butler County Fire Protection District of Butler County be dissolved?' Appellants were signatories to the initiative petitions and are voters who reside in the district. Respondents, as members of the board of directors of the fire district, refused to call the election.
Appellants then filed a petition for a Writ of Mandamus in the Circuit Court of Butler County. The petition requested the trial court to order respondents to call a special election for the purpose of submitting the dissolution proposition to the voters of the district. The trial court issued an alternative Writ of Mandamus.
Respondents filed a motion to dismiss the petition and the alternative writ. They contended that they, as the board of directors, had no legal right, power, or duty to call the election in question, and that appellants had adequate remedies at law if they wished to submit the proposition to the voters.
The trial court sustained the motion and dismissed the alternative writ, and appellants appealed from such order.
Section 321.220, RSMo 1969, V.A.M.S., sets out in detail the powers that may be exercised by the board of directors in providing fire protection. Subsection (14) gives the board the power to have and exercise all rights and powers necessary or incidental to or implied from the specific powers granted, and states that the specific powers granted shall not be considered as a limitation upon any power necessary or appropriate to carry out the intent and purpose of chapter 321. There is no express statutory language in Section 321.220, or in any other section in chapter 321 that gives the board of directors the right to call an election for the purpose of attempting to dissolve the fire district.
Section 321.490, RSMo 1969, V.A.M.S., states that all powers which may be exercised by the board of directors of the fire district may be exercised by the duly qualified electors of that district by initiative or referendum.
It necessarily follows that if the board had the right to call a dissolution election the qualified voters, by initiative petition, had a right to do so.
Appellants concede that the statutes do not specifically grant the board the power to call the election. They do contend that the question of whether or not the fire district should continue to operate was incidental to the operation of the district; that the board was given the statutory power to operate the district, and therefore the board has incidental, implied or inherent power to dissolve the district. We do not agree.
The legislature has specifically provided the method for dissolving a fire district. See Sections 321.390--321.410, RSMo 1969, V.A.M.S. The law provides that if at least one hundred owners of real estate located in the district file a petition in the circuit court of the county in which the district is located, asking for dissolution of the district, the court may order a hearing on the issue of whether or not it is in the best interest of the people to dissolve the district. If the court concludes that the district should, in the interest of public safety and welfare, be dissolved, it orders the submission of the issue to the qualified voters of the district. If two-thirds of the voters favor dissolution, the circuit judge orders the dissolution and appoints a trustee to liquidate the affairs of the district. It is interesting to note that the procedure requires a two-thirds...
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