State ex rel. District No. 1 v. Miller

• Decision Date: 26 June 1905
• Citation: 88 S.W. 637,113 Mo.App. 665
• Parties: STATE ex rel. District No. 1 et al., Appellants, v. HERBERT H. MILLER, Clerk, etc., Respondent
• Court: Kansas Court of Appeals

88 S.W. 637

113 Mo.App. 665

STATE ex rel. District No. 1 et al., Appellants, v. HERBERT H. MILLER, Clerk, etc., Respondent

Court of Appeals of Missouri, Kansas City

June 26, 1905

Appeal from Chariton Circuit Court.--Hon. John P. Butler, Judge.

AFFIRMED.

Judgment affirmed.

T Shackelford and E. W. Henry for appellants.

(1) The court will perceive from the record in this case that the only defense to this action is that the pretended school district is a de facto district; this is a direct admission that the pretended district formed from the unorganized district in township 52, range 17, and a part of school district No. 1, township 51, range 17, divided by a county line was illegally formed and in direct violation of law. Before such a defense is available, it must be conceded that courts will not favor direct vioations of law without the concurrence of certain fundamental principles, which should govern in all cases of this kind. That by virtue of section 3, article 2, Constitution of Missouri, the right of local self-government must not be impaired. R. S. 1899, sec. 7972; State ex rel. v. Patton, 79 Mo.App. 164-168; State ex rel. v. Byers, 67 Mo. 706; Shutticks v Phelps, 78 Mo. 80. (2) That school districts since the revised laws of 1879 are corporations which exist as a part of the civil government of the State, and as a public corporation; and that when a corporation is attempted to be formed, based on an acknowledged violation of law and an estoppel is pleaded, based upon long usage, then in order that such a position be sustained, it must clearly be shown that a disturbance of the de facto relation will work manifest injustice and be clearly inequitable, and each case must be governed by the circumstances of its own case. McClure Bros. v. School District, 79 Mo.App. 80; Perryman v. Bethune, 89 Mo. 158; Bradshaw v Yates, 67 Mo. 221; R. S. 1889, sec. 8514. (3) The true test of a de facto corporation is that there was a law in existence under which there might have been a de facto corporation of the kind, character and class to which the organization in question appropriately belonged. 95 F. 497-508, 67 Wis. 634; State ex rel. v. Riley, 85 Mo. 155; School District v. School District, 94 Mo. 612; Smith on Corporations, sec. 190. (4) Corporations cannot be formed to accomplish a fraud. Clark and Marshall on Corporations, sec. 7, p. 22. (5) Mandamus will lie to compel a mandatory duty. Tudor on Municipal Corporations, sec. 374; State ex rel. v. Riley, 85 Mo. 155.

R. B. Caples and Crawley & West for respondent.

(1) The object of the suit is to establish the alleged right of relator district to taxes on lands and other property located within the territorial boundaries of district number 2, which is admittedly in possession of the territory, claimed and exercising its corporate functions over the same. Thus the interests of district number 2 are vitally affected, and that district is not a party to the suit and has no opportunity to be heard. School District v. Smith, 90 Mo.App. 215. (2) The return shows the existence of a school district having a legal existence, recognized by the State and county, in the actual user of its corporate franchises as a statutory school district continuously from the year 1896 to the date of the trial of this suit, covering the territory claimed by relator district. Its right to exist and act as a corporation cannot be impeached collaterally as is attempted by the answer of relators. Burnham v. Rogers, 167 Mo. 17, and cases cited on page 21; Fredricktown v. Fox, 84 Mo. 59; State v. Fuller, 96 Mo. 165; State ex rel. v. Board of Eq., 108 Mo. 241; School Dist. v. Smith, 90 Mo.App. 215; State ex rel. v. Buhler, 90 Mo. 560. (3) School district number 2 was organized in 1896, and from that date to this has had a recognized de facto existence, and the people of the district have adapted themselves to the changed conditions, built a schoolhouse and incurred expenses necessary to carrying on a school. By timely objection before such organization had been recognized relators might have taken advantage of the irregularities complained of but by their laches they have allowed a condition of things to exist for seven years which they will not now be allowed to destroy. Stamper v. Roberts, 90 Mo. 683; State v. Eden, 54 Mo.App. 31. (4) The effect of sustaining appellants' position would be to destroy the corporate existence of district number 2, and thus deprive the members of its school board of their offices in a proceeding to which neither the school district nor its officers were parties. Not only would this be done in a proceeding in which they had no opportunity to be heard, but done by a court that has no jurisdiction to determine a case wherein title to an office under this State is involved. Constitution of Missouri, sec. 12, art. 6; State ex rel. v. Stone, 152 Mo. 202; School District v. Smith, supra.

OPINION

ELLISON, J.

The relator school district seeks to compel the respondent county clerk of Chariton county to assess and extend the taxes on property in certain territory claimed by relator, as certified by it on the 12th of May, 1903. The object of relator is to subject certain territory to taxation as a part of said district. The trial court refused a peremptory mandamus and relator appealed.

It appears that prior to 1896, the territory composing the relator district was partly in Chariton and partly in Howard counties. The territory now in dispute lies wholly in the former county. In 1896 the territory now in dispute, with some not in dispute, organized into a separate district known as district number 2. The relator attacks the regularity and legality of the proceeding whereby such district number 2 was attempted to be organized. But it appears in the case that such district number 2 did in fact exist from 1896 down to the present time. That it had officers, built a school house, carried on a school and received its share...