State ex rel. Major v. Wood

• Decision Date: 21 March 1911
• Citation: 233 Mo. 357,135 S.W. 932
• Parties: STATE ex rel. MAJOR, Atty. Gen., v. WOOD et al.
• Court: Missouri Supreme Court

135 S.W. 932

233 MO. 357

STATE ex rel. MAJOR, Atty. Gen., v. WOOD et al.

Supreme Court of Missouri.

March 21, 1911.

1. MUNICIPAL CORPORATIONS (§ 12) — ORGANIZATION—"COMMONS."

Rev. St. 1909, § 8529, provides that, if a majority of the inhabitants of a portion of a city or town desire incorporation, they may present a petition setting forth the metes and bounds of their city and town, and commons, and pray that they may be incorporated, and for the preservation and regulation of any commons. Held, that the word "commons," as so used, should not be construed to mean the narrow rectangular pieces of ground appertaining to French and Spanish villages as anciently established, and hence as obsolete and without effect, but to mean land held in common, according to modern acceptation, as by all the members of a community, a tract intended for pleasure, pasturage, etc., the use of which was to belong to the public or a number of persons, including parks, squares, and public grounds intended for general public purposes, and hence a petition for incorporation omitting all reference to "commons" was insufficient to confer jurisdiction on the county court to grant incorporation.

2. ACTION (§ 35)—CREATION OF RIGHTS AND REMEDIES.

Where a statute creates a right and provides a remedy, the remedy so provided is preclusive and must be followed.

3. COURTS (§ 33)—JURISDICTION—SPECIAL OR LIMITED JURISDICTION.

Presumptions are not to be indulged to support or establish the jurisdiction of a court of limited jurisdiction, especially in proceedings not according to the course of common law; but jurisdiction must affirmatively appear on the face of the record.

4. QUO WARRANTO (§ 8)—GROUNDS—FRAUD.

Since fraud is cognizable at law as well as in equity, it is available in support of a writ of quo warranto to set aside proceedings for the incorporation of a town.

5. APPEAL AND ERROR (§ 220) — REVIEW — EVIDENCE.

An objection to the competency of witnesses not raised on their examination before a master in quo warranto proceedings will not be considered by the Supreme Court on exceptions to the master's report.

6. MUNICIPAL CORPORATIONS (§ 12)—INCORPORATION—PRIMA FACIE CASE—BURDEN.

In proceedings to incorporate a city or town, the burden is on the incorporating petitioners to establish a prima facie case in the first instance, and, if the case is successfully rebutted, it is the duty of the court to require from the petitioners such further proof as will satisfy the court by a fair preponderance of the evidence.

7. MUNICIPAL CORPORATIONS (§ 12)—INCORPORATION—FRAUD.

Certain unknown persons signed, or caused to be signed, and placed on petitions for the incorporation of a town, the names of a number of persons without their knowledge, authority, or consent as petitioners, purporting to be the signatures of taxable inhabitants residing within the territory, notwithstanding a number of the persons whose names were so signed had removed from the territory, and the county court, on such facts being shown, refused to require evidence of the genuineness of the signatures to the petition, and failed to require proof that at the time the petition was filed the signers were inhabitants of the territory described in the order of incorporation. Held, that such facts amounted to fraud in law, avoiding the proceedings.

8. QUO WARRANTO (§ 38)—INCORPORATION OF TOWN—REVIEW—PARTIES.

Where the incorporation of a town is challenged in a quo warranto proceeding, it is properly brought against the officers of the town; the town itself not being a necessary party.

In Banc. Quo warranto by the State, on the relation of E. W. Major, Attorney General, against Roy C. Wood and others to oust respondents from their offices in the incorporated City of Wellston. Writ granted.

Elliott W. Major, Atty. Gen., Wm. R. Gentry, and Johnson, Houts, Marlatt & Hawes, for relator. J. C. Kiskaddon, B. L. Matthews, and Martin T. Farrow, for respondents.

LAMM, J.

At its May term, 1909, the county court of St. Louis county incorporates Wellston as a city of the third class, proceeding under R. S. 1909, § 8529, and designates its first officers. In January, 1910, Mr. Attorney General exhibits here an information, ex officio, in the nature of quo warranto, to oust respondents as such officers. Respondents (mayor, marshal, attorney, police judge, assessor, collector, treasurer, and councilmen of said city) enter their appearance and make return. Thereafter we appoint Jesse C. Hargus, Esq., of the St. Clair bar, our special commissioner with donation of power to take testimony and report findings of fact and conclusions of law, together with such testimony. Thereafter Commissioner Hargus qualifies, hears the cause, and in September reports—finding for relator and recommending that judgment of ouster go on the ground the judgment of incorporation is void for fraud and want of jurisdiction. Thereafter respondents file exceptions, and the cause is finally submitted in January, 1911, on report, testimony, exceptions, briefs, and oral argument. Our learned Attorney General's information is not assailed by respondents in matter of form or substance; therefore it need not be reproduced. It is full enough in allegation to justify all the offered proofs on each issue raised. The cause proceeds on the theory that the sole right of respondents to act as officers of Wellston is based on its incorporation by the county court. If that incorporation is valid, they are not usurping official authority; otherwise, otherwise. The information, inter alia, charges the incorporation is void: (1) Because of lack of jurisdiction in the county court (and herein of the incorporating petition not stating facts sufficient to constitute a cause of action); and (2) because of fraud. Respondents' return traverses those allegations. The forensic controversy is pitched on that line, and there the adversary parties go up to battle.

The material part of the statute in judgment (section 8529, R. S. 1909) reads: "* * * Any city or town of the state not incorporated may become a city of the class to which its population would entitle it under this article, and be incorporated under the law for the government of cities of that class, in the following manner: Whenever a majority of the inhabitants of any such city or town shall present a petition to the county court of the county in which such city or town is situated, setting forth the metes and bounds of their city or town and commons, and praying that they may be incorporated, and a police established for their local government, and for the preservation and regulation of any commons appertaining to such city or town, and if the court shall be satisfied that a majority of the taxable inhabitants of such town have signed such petition, the court shall declare such city or town incorporated, designating in such order the metes and bounds thereof, and thenceforth the inhabitants within such bounds shall be a body politic and incorporated, by the name and style of the city of ......, or the town of ......; and the first officer of such city or town shall be designated by the order of the court, who shall hold their offices until the first general election of officers, as provided by law, and until their successors shall be duly elected and qualified. * * *"

The vital part of the challenged incorporating petition reads: "To the Honorable County Court of St. Louis County and to the Honorable Judges thereof: The undersigned are taxable inhabitants of that part of the county of St. Louis defined in the accompanying map as the proposed `Wellston,' and the general description of the metes and bounds thereof is as follows: (Description omitted.) * * * As taxable inhabitants of the aforesaid territory indicated by said map and description as that of the proposed city to be called `Wellston,' your petitioners pray that they may be incorporated, and a police established for their local government, and that the inhabitants of said described territory may be so incorporated as a city of the third class under the general laws of the state of Missouri by the name of Wellston, included therein the territory hereinbefore described and the inhabitants thereof. Said territory of said proposed city is entirely within the county of St. Louis, Mo., and within the jurisdiction of your honorable court, and your petitioners further respectfully state: (1) That the said territory withing which your petitioners reside (and the inhabitants whereof it is hereby proposed to incorporate as a city) in said county of St. Louis is not at present within the limits of any town, city or village, and said territory includes more than 3,000 and less than 30,000 inhabitants. (2) That the name of the proposed city is `Wellston.' (3) That your petitioners (at the time this petition is submitted to this court) comprise in number more than a majority of the taxable inhabitants of the said territory proposed to be incorporated, and all of your petitioners moreover reside therein. Whereof, your petitioners pray for an order incorporating the said territory within the said county of St. Louis, Mo., as a city of the third class, under the name of Wellston and for such orders in the premises as may be in conformity with law. And your petitioners will ever pray, etc."

The finding of fact by our special commissioner (so far as material to questions raised) follows: "I find from the pleadings and the evidence the material facts upon which the case must turn to be substantially as follows: That on the 3d day of May, 1909, the respondents, also John Sacks, and other persons filed in the county court of St. Louis county a petition (said petition consisting of several separate petitions) wherein they prayed that the inhabitants of the hereinafter described territory within the county of St. Louis and state of Missouri, be incorporated as a city of the third class, under the name and style of `Wellston';...