State ex rel. Gentry v. Sullivan

• Decision Date: 21 June 1928
• Docket Number: 27539
• Parties: The State ex rel. North Todd Gentry, Attorney-General, v. G. A. Sullivan et al
• Court: Missouri Supreme Court

8 S.W.2d 616

320 Mo. 362

The State ex rel. North Todd Gentry, Attorney-General, v. G. A. Sullivan et al

No. 27539

Supreme Court of Missouri

June 21, 1928

Motion for Rehearing Denied July 3, 1928.

Ouster awarded.

North T. Gentry, Attorney-General, Barney Reed and Irwin & Bushman for relator.

A W. Curry, L. C. Mayfield, Phil Donnelly and Schmook & Sturgis for respondents.

(1) The respondents in each of these cases challenge the jurisdiction of this court to hear and determine the same. Consolidated school districts are municipal or quasi-municipal corporations and their officers are not state officers, nor do they hold "an office under this State." This court has no original jurisdiction in quo warranto cases except in cases which if tried in the circuit court, an appeal would lie to this court. An appeal in a quo warranto case against an officer of a municipal corporation goes to the court of appeals and not this court and the same line of cleavage applies to original proceedings. State ex inf. Otto v. Hyde, 296 S.W 775; Mo. Constitution, Art. 6, sec. 12; Constitutional Amendment, 1884, secs. 1, 2 and 5; School District v Boyle, 182 Mo. 347; State ex rel. v. Rombauer, 101 Mo. 499; State ex rel. v. Nortoni, 201 Mo. 1. (2) This case while brought in the name of the Attorney-General, as required by Sec. 2066, R. S. 1919, is not prosecuted by him as part of his public duties, but is prosecuted in fact at the relation of certain residents of Stoutland Consolidated School District. In such case the relator should be named so that judgment for costs may be rendered against him. Secs. 2067, 2070, R. S. 1919. In such cases the relator or party at whose instance and for whose benefit the case is presented must be one who has a real interest in the controversy. Unless the relator is named and made a party, the respondent has no way of raising an objection to his right to maintain the suit. State ex inf. v. Heifferrnan, 243 Mo. 442; State ex inf. v. Taylor, 208 Mo. 442; State ex inf. v. School District, 277 Mo. 548. (3) The election held on June 19, 1925, whereby it is claimed that Stoutland Consolidated District was formed, was illegal and void. This election was in direct and open violation of the constitutional provision that "all elections by the people shall be by ballot, and every ballot voted shall be numbered in the order received and its number recorded by the election officers on the list of voters opposite the name of the voter who presents it." Art. 8, sec. 3, Constitution. A school election such as this one is an election within the provisions of this constitutional requirement. State ex rel. v. Board of Public Schools, 112 Mo. 213; State ex rel. v. Spencer, 164 Mo. 23. While mere irregularities do not invalidate an election, the total disregard of provisions essential to a fair and honest expression of the will of the voters does make the election void. A provision which the people of this State have thought to be so important and necessary to insure fair and honest elections, to-wit, keeping a list of the voters, that same has been embodied in the Constitution, should not be brushed aside as merely directory and immaterial. State ex rel. v. Ellison, 269 Mo. 151; State ex rel. v. Ellison, 193 Mo.App. 306; Bower v. Smith, 121 Mo. 45; Gaston v. Lamkin, 115 Mo. 20; Hill v. Schoence, 128 Mo. 661. The constitutional provision requires a list of the voters to be kept and a numbering of the ballots corresponding to the number of the voters on such list. The numbering of the voter and his ballot by the same number is important in preventing or detecting fraud, ballot box stuffing, and the like, in contested elections, etc. But the keeping of a list of the voters who cast ballots is absolutely essential to secure a fair and honest election. Without that is done, as in this case, there is no way of preventing more than one ballot being cast by a voter. (4) The appeal to the State Superintendent of Schools provided by statute, Laws 1921, page 655, in case of a disagreement between county superintendents of different counties when the consolidated district covers land in each, is a judicial proceeding. State ex rel. v. Job, 205 Mo. 32; State ex inf. v. Fleming, 158 Mo. 558. The posting of properly signed notices and plats before holding an election to vote on forming a consolidated district, is jurisdictional. Under the law, the notices and plats to be valid must be approved by the county superintendent of schools of each county in which any territory of such district lies. Sec. 11259, R. S. 1919; Law 1921, p. 664. In the present case the Superintendent of Schools of Laclede County, in which part of the proposed consolidated district was located, did not approve the formation and boundaries of the proposed district and refused to sign any plats or notices if indeed same were presented to him. This necessitated an appeal of the case to the State Superintendent of Schools, and Superintendent Foster of Camden County, being "an interested party," had the right to appeal. The only thing he did do was to take the notices and plats to the Superintendent at Jefferson City, and the only thing the State Superintendent did was to sign his name thereto at once and on the same day, and without any investigation or hearing, or opportunity being given for an investigation or hearing. The failure to give the Superintendent of Schools of the other county a chance to be heard in the matter, is not due process of law. An appeal means a hearing by a higher tribunal and implies a right of the other party to be heard. Black's Law Dictionary, Appeals, p. 78. Though the appeal may be informal and no form or method of notice is prescribed, the law implies that such notice will be given as will afford the other parties interested an opportunity to be heard. State ex rel. v. Walbridge, 119 Mo. 383; Wollard v. Nashville, 108 Tenn. 353. (5) The commissioner is clearly in error in holding that in this quo warranto proceeding to have Common School District No. 15 and the Wair Consolidated School District declared void and nonexistent, the respondents cannot in turn attack the validity and regularity of the organization of Stoutland Consolidated District. The very foundation of relator's case is based on the fact of the Stoutland Consolidated District being a legally organized district. (6) A valid notice of the time and place of holding an election to form a consolidated school district is jurisdictional. The notice of the holding of the election for forming the Stoutland Consolidated District did not designate the place of said meeting other than "at Stoutland." There was a schoolhouse there where school meetings were usually held, but this meeting was held on the suggestion of the County School Superintendent at the Christian Church in Stoutland, and it does not appear that any public meetings of this or any kind other than church services was ever held at that place. This case differs in that respect from the case of State ex rel. v. Higley, 250 S.W. 51, cited by the Commissioner. If this was the only matter tending to show an unfair and void election, then the court might hold it insufficient, but this fact must be coupled with the failure to keep polls open a reasonable length of time to permit all to vote, the failure to keep a list of the voters, or to have election officials who could reject unqualified voters and prevent any multifarious voting. 20 C. J. 102.

Walker, C. J. Ragland, White, Blair, Atwood and Gantt, JJ., concur; Blair, J., in the result.

OPINION

WALKER

This is an original proceeding in quo warranto brought by the Attorney-General, as relator, against the respondents to test their authority to hold the offices and exercise the duties of school directors of Common School District No. 15, Laclede County.

The contention of the relator is that District No. 15 has ceased to exist by being merged in and made a part of Consolidated School District No. 2, otherwise known as the Stoutland School District, Camden County, which rendered the offices of school directors of District No. 15 functus officio.

The respondents contend that the merger in question was irregular, unauthorized and void and that they are and have been since their election the legally elected directors of said district and as such empowered to perform the functions and discharge the duties of the same.

This matter was referred to a commissioner to take testimony and report on the law and the facts. He complied with this order and recommended that the respondents be ousted from their offices.

I. The Supreme Court's jurisdiction, either in an original proceeding or upon appeal, in cases of the character at bar, is no longer an open question. We have held in proceedings challenging the validity of the organization of a consolidated school district for the purpose of ousting from office the directors of the same, that the case involved "title to any office under the State" and was within the jurisdiction of this court. [Sec. 12, Art. VI, Const. Mo.; State ex inf. Barrett v. Parrish, 307 Mo. 455 and cases p. 457, 270 S.W. 688; State ex inf. Killam v. Con. School Dist., 277 Mo. 458, 209 S.W. 938.]

The rule, as broadly announced in these cases, is impliedly subjected to criticism in State ex rel. Otto v Hyde, 317 Mo. 714, 296 S.W. 775, in which a proceeding to oust a village trustee was held not to be an "office under the State" within the meaning of the Constitution. The difference, so far as their relation to the State is concerned, between a school director and a village trustee is difficult of determination. Despite their similarity and the discriminating analysis of the rulings discussed in the Otto case, an adherence to the doctrine of stare decisis seems most...