State ex rel. Miller v. Consolidated School Dist. No. 7, Holt County

• Decision Date: 31 December 1927
• Docket Number: 25373
• Parties: The State ex rel. B. C. Miller et al., Appellants, v. Consolidated School District Number Seven, Holt County, et al
• Court: Missouri Supreme Court

1 S.W.2d 94

318 Mo. 865

The State ex rel. B. C. Miller et al., Appellants, v. Consolidated School District Number Seven, Holt County, et al

No. 25373

Supreme Court of Missouri

December 31, 1927

Appeal from Atchison Circuit Court; Hon. Charles H. Mayer Special Judge.

Affirmed.

W R. Littell and Hunt & Hunt for appellants.

(1) The court has power to review the election proceedings organizing the consolidated school district in a quo warranto proceeding. State ex rel. v. Heffernan, 243 Mo. 454; State ex rel. v. Townsley, 56 Mo. 107; State ex inf v. Bright, 298 Mo. 335. (2) The law relating to the formation of consolidated school districts does not require the numbering of ballots, nor the recording of the names of voters. Secs. 11237, 11259, R. S. 1919; Laws 1921, p. 654. (a) Fraud in an election is a proper subject of inquiry in an action at law such as quo warranto. State ex inf. v. Woods, 233 Mo. 380; State ex rel. v. Steers, 44 Mo. 227. (b) The final test as to the legality of an election is whether or not the voters have been given an opportunity to express, and have fairly expressed their will. Bowers v. Smith, 111 Mo. 45; Horsefall v. School Dist., 143 Mo.App. 541; State ex rel. v. Arnold, 278 Mo. 672; Miles v. City of Macon, 193 Mo.App. 316, 269 Mo. 151; 20 C. J. 186, sec. 227. (3) There was and is no substantial evidence in the case upon which to base the court's finding. Grace v. Gill, 136 Mo.App. 190; Miss. Valley Trust Co. v. Taylor, 238 S.W. 561; In re Lankford Estate, 272 Mo. 8. (4) The finding of the court should have been for the relators and against the respondents. Cases, supra; Brinton v. Thomas, 138 Mo.App. 73; Foley v. Harrison, 233 Mo. 460.

Tibbels & Bridgeman for respondents.

(1) A proceeding in quo warranto, attacking the validity of the organization of a consolidated district, and seeking to oust respondents as directors, is a suit at law, and findings of fact made therein by the trial judge, if supported by substantial evidence, are binding on the appellate court. State ex rel. Thompson v. Bright, 250 S.W. 601; State ex rel. v. Wright, 270 Mo. 376; State ex rel. v. Ice Co., 246 Mo. 200; State ex inf. v. Hall, 228 S.W. 1057; Graves v. Shelton, 282 S.W. 56; Hunt v. Hunt, 307 Mo. 375. (2) The question of casting and counting 24 to 30 illegal and fraudulent ballots by the officers at said school election will not be considered by this court for the reason that said error, if any, was not called to the attention of the trial court in appellants' motion for a new trial. Sec. 1453, R. S. 1919; State v. Burns, 280 S.W. 1026; Bartner v. Darst, 285 S.W. 451; Osage Tie Co. v. Timber Co., 191 S.W. 1029; King v. Grocer Co., 175 S.W. 78; Gattschalk v. Wells, 274 S.W. 400. (3) The circuit court is without jurisdiction to declare the election void in a consolidated school district case because of fraud on the part of the election officers in casting or counting illegal votes, there being no legislative enactment providing for such a contest. Boney v. Sims, 304 Mo. 369; State ex rel. Ray County v. Hackmann, 295 Mo. 417; Wilson v. Washington County, 247 S.W. 185; State ex rel. Wahl v. Speer, 284 Mo. 45. (4) "In quo warranto, parties cannot go behind the official returns, unless the specific objections thereto be stated in the pleadings; there must be, e. g., a specification of the number and names of the voters alleged to be illegal; general averments in reference thereto are insufficient." State ex inf. v. Heffernan, 243 Mo. 442; State ex rel. v. Townsley, 56 Mo. 107; State ex rel. v. Vail, 53 Mo. 97. (5) An information in the nature of a writ of quo warranto is essentially a civil proceeding. Burden of proof is on the relators; every reasonable intendment is to be made in favor of the regularity of the proceedings by which appellant was put into office. State ex inf. v. Hefferman, 243 Mo. 442; State ex inf. v. Kupferle, 44 Mo. 154; Ins. Co. v. Holmes, 68 Mo. 601.

OPINION

Walker, J.

An application for a writ of quo warranto was filed ex informatione by the Prosecuting Attorney of Atchison County at the relation of B. C. Miller and other taxpayers, to test the validity of the formation of Consolidated School District Number Seven, located in Atchison and Holt counties, and as a consequence to determine the official authority of the persons named as directors of said district, who are also made defendants.

This case was tried before and heard by Special Judge Charles H. Mayer, who rendered a judgment in favor of the respondents, from which the appellants appealed.

On the 15th day of August, 1923, a meeting was held in a school building in Corning, Holt County, to vote upon the question of creating Consolidated School District Number Seven out of certain territory in Atchison and Holt counties. The meeting was called to order and a chairman and secretary elected. Tickets were distributed and, according to the testimony of witnesses for the appellants, there was much disorder on the part of the voters in casting their ballots. This is denied by witnesses for the respondent. There was testimony pro and con of other irregularities during the progress of the election, which will be stated in the opinion, if necessary to a determination of the issue. The assignments of error are as follows:

"1st. There was and is no substantial evidence in the case upon which to base the court's finding.

"2nd. The finding of the court should have been for the relators and against the respondents."

The gist of these assignments is that the trial court erred in finding that there was substantial evidence upon which to base a judgment in favor of the respondents.

I. This is an action at law. Having been tried by the court its findings on questions of fact, if supported by substantial evidence, will not be disturbed. [State ex inf. Thompson v.Bright, 298 Mo. l. c. 347, 250 S.W. 599.] The gravamen of the appellants' contention is directed, not so much to the absence of substantial evidence to support the court's finding, as to the fact that in conducting the election the requirements of Section 11237, Revised Statutes 1919, were not complied with. The first provision of this section with which we are concerned, is as follows:

"First -- To organize as a town or city school district, those voting for the organization shall have written or printed on their ballots 'For organization,' and those voting against the organization shall have written or printed on their ballots 'Against organization;' and each person desiring to vote shall advance to the front of the chairman and deposit his ballot in a box to be used for that purpose. When all present shall have voted, the chairman shall appoint two tellers, who shall call each ballot aloud and the secretary shall keep a tally and report to the chairman, who shall announce the result; and if a majority of the votes cast are 'For organization,' the chairman shall call the next order of business." [Sec. 11237, R. S. 1919.] (Italics ours.)

The particular portion of said section which it is contended was not complied with we have italicized. It may be admitted, as stated by the appellants, that the requirements of the general election law concerning the use of booths to insure the secrecy of the ballot was not complied with, and that the voters crowded around the ballot box and difficulty was...