State ex rel. Heppe v. Zilafro
| Decision Date | 08 December 1947 |
| Docket Number | 40232 |
| Citation | 206 S.W.2d 496 |
| Parties | The State of Missouri, at the Relation of M. D. Heppe, Respondent, v. Alex Zilafro, John Hale and J. B. Simkins, Directors of Hurricane School District No. 35 of Mississippi County, Missouri, Appellants |
| Court | Missouri Supreme Court |
From the Circuit Court of Mississippi County Appeal from Proceeding in Mandamus Judge J. Henry Caruthers
Appeal Transferred
Mandamus. The State, at the relation of M. D. Heppe instituted the action against Alex Zilafro, John Hale and J B. Simkins, as Directors of Hurricane School District No. 35 of Mississippi county, Missouri, to compel said Directors to order a special meeting under § 10434, R. S. 1939, to vote upon the attaching of said District No. 35, a common school district, to East Prairie Consolidated School District No. 5 of said county, a consolidated school district. The trial court found for relator and issued its peremptory writ of mandamus. The Board of Directors appealed. They say we have jurisdiction because the rights of citizens under the provisions of §§ 2 and 10, Art. I, Missouri constitution, 1945, are involved, having been raised by paragraph 8 of the amended return.
A contested issue was whether § 10484, supra, or Laws 1941, p. 545, § 1 (Mo. R. S. A. § 10500.1) governed. Section 10484 is commonly known as the "annexation" statute, while Laws 1941, p. 545, is known as the "consolidation" statute. Section 10493 makes "all the laws applicable to the organization and government of town and city school district" of said article (embracing § 10484) applicable to consolidated school district. See Laws 1913, p. 722, § 1. A distinguishing feature between the above mentioned annexation and consolidation statutes is that under the annexation statute the annexed territory is taken into the annexing school district which continues to function as before without any change in personnel et cetera; whereas under the consolidation statute a new consolidated district is created and provisions exist for a meeting and an organization of the newly created district. Consult cases like State ex inf. v. Consolidated School Dist. No. 1, 277 Mo. 458, 468(I), 209 S.W. 938, 940(I); State ex inf. v. Scott, 304 Mo. 664, 672, 673, 264 S.W. 369, 371, 372; State ex inf. v. School Dist. of Lathrop, 314 Mo. 315, 322(I), 284 S.W. 135, 137.
Paragraph 8 of appellants' amended return to the alternative writ, insofar as a constitutional issue is attempted to be presented, reads: "To require respondents to call said special election under said Section 10484 would be to deprive them and the voters of said School District No. 35 of their property without due process of law in contravention of Section 10 of Article I of the present Constitution of Missouri, by permitting taxes to be levied against the lands and other property within said District No. 35 and collected, without following the process of law provided in said Section 10500.0, the protection of which constitutional provision respondents hereby expressly invoke."
Courts of appeals have jurisdiction "to construe statutes and determine their applicability to a given state of facts." Mellon v. Stockton, 326 Mo. 129, 132, 30 S.W.2d 974, 976[4]; State ex rel. v. Allen, 340 Mo. 44, 50, 100 S.W.2d 868, 871[3]; Jacoby v. Missouri Val. Drain. Dist., 349 Mo. 818, 834, 163 S.W.2d 930, 939]10]; State ex rel. v. Colt, (Mo.), 194 S.W.2d 1021, 1022[2].
The averments in appellant's return anticipate a judgment applying § 10484 instead of Laws 1941, p. 545, to the facts of the case and upon this they base their claim that such construction of the statutes and application of § 10484 would result in a deprivation of property without due process of law. Also, the true complaint in appellants' brief is that Laws 1941, p. 545, and not § 10484 applies. All statutes are construed in the light of the constitution. It is a logical inference from appellants' position that if Laws 1941, p. 545, be held applicable then § 10484 is constitutional and valid. Assume that the application of § 10484 would deprive School District No. 35 of its property, it does not follow that such deprivation would be without due process of law. The very wording of appellants' plea presupposes a notice, a hearing, and a judgment requiring appellants to proceed under § 10484, instead of Laws 1941, p. 545. The deprivation would be the result of a correct or an erroneous judgment. If erroneous, the mistake follows due process and does not constitute a denial of due process of law. It is self-evident that a litigant may not lodge review proceedings here by simply anticipating an adverse judgment and inserting appropriate averments in the pleadings that the same would violate the due process or other constitutional provisions. Robinson v. Nick, 345 Mo. 305, 309[4], 134 S.W.2d 112, 114 [8]. Consult State ex rel. Volker v. Kirby, 345 Mo. 801, 136 S.W.2d 319. The issue involves naught other than the construction and application of statutory law, and is restricted to a judgment asserted to be an erroneous construction and application thereof. It does not involve the construction of any constitutional provision within an appellate jurisdictional sense. ...
To continue reading
Request your trial