State ex rel. Patterson v. McReynolds

• Decision Date: 31 October 1875
• Parties: STATE ex rel. A. PATTERSON, et al., Appellants, v. H. MCREYNOLDS, et al., Respondents.
• Court: Missouri Supreme Court

61 Mo. 203

STATE ex rel. A. PATTERSON, et al., Appellants,

v.H. MCREYNOLDS, et al., Respondents.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Bates County Circuit Court.

W. P. Johnson, with H. Henry, for Appellants.

In Missouri, the “Commons” were by laws of the United States secured to the towns and villages which had a legal existence when the United States acquired said territory. But where the land was unsettled at the date of that change, and was afterwards surveyed and sold according to legal subdivisions, the “““Commons,” as the word was originally, (see 1 Terr. Laws, pp. 184-5, § 687) and is still understood, could have no legal existence.

There were no commons attached to the village of Butler, but most of the outlying lands were farms, and any attempt to incorporate them under the statute as “Commons” was void, and every law and ordinance passed, and every tax levy by the board of trustees, were void.

If 900 acres of farm lands may be added as “Commons,” what limitation can be placed on the power of similar annexations?

The law never could have been intended to subject the owners of farms and unoccupied lands to the burdens of town taxes, oftentimes to the extent of confiscation.

There can certainly be no doubt that the incorporation and subsequent proceedings, so far as they affect the outlying district, are void, and that as to them, the trustees ought to be restrained from exercising their powers, especially from levying taxes.

A. T. Holcomb & John T. Smith, for Respondents.

The relators show but one fact upon which they demand relief, viz: that their lands are used for farming purposes. They do not show a state of facts that existed in Fulton vs. City of Davenport (17 Iowa, 404), and this court has no power to inquire into the discretion of the county court on this subject of incorporation.

The question of the power of extension of corporate limits, as settled in this State, is a legislative, not a judicial question. (Giboney vs. City of Cape Girardeau, 58 Mo., 741; Powers vs. Commons of Wood Co., 8 Ohio St., 288; Weeks vs. Milwaukee, 10 Wis., 262; State ex rel. Read vs. Weatherby, 45 Mo., 17; Kayser vs. Bremen, 16 Mo., 88; Allen vs. City of St. Louis, 13 Mo., 422; Walden vs. Dudley, 49 Mo., 422.)

VORIES, Judge, delivered the opinion of the court.

This is an information in the nature of a quo warranto filed in the Bates circuit court by the circuit attorney of said circuit, to inquire into the authority by which the defendants claimed to exercise and were exercising the powers and duties of trustees of the town of Butler, in said county.

The petition was filed on the 21st day of June, 1873, and averred that the defendants, without the authority of law, were exercising and usurping the rights and duties of trustees of the “Inhabitants of the Town of Butler,” in the county of Bates, in the State of Missouri, and were passing ordinances levying taxes, etc., without any legal authority therefor. It is also averred by the petition that there is no such incorporated town or municipality as the “Inhabitants of the Town of Butler.”

The defendants admit, by their answer, that they are exercising and performing the duties of the office of trustees of the “Inhabitants of the Town of Butler,” in Bates county, Missouri. They aver that said town had been and was duly incorporated under and by virtue of the 41st chapter of the General Statutes of Missouri, and that they had been duly elected as trustees for said town and had qualified as such trustees, and were lawfully exercising the duties imposed on them as such trustees, setting out in detail all and each of the acts done by the inhabitants of said town, and of the county court of said county, in the incorporation of said town, as well as their election to the office of trustees for said town.

The facts of the case, as shown by the records, are substantially as follows: On the 12th day of June, 1872, the town of Butler, in Bates county, as the same was laid out in lots, streets, etc., and a plat thereof filed in the recorder's office of said county, comprised between two hundred and fifty and three hundred acres of land, and was of an irregular shape. On said day two-thirds of the inhabitants of said town and of a portion of the adjoining country, containing in all about twelve hundred acres of land, petitioned the county court of Bates county to incorporate said district of country and the inhabitants thereof (which included the platted town of Butler), the metes and bounds of which were described in said petition. The boundaries of the country so described, as well of the said town as laid out and platted, will be more fully shown by the following map or plat thereof.

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE

The county court, in accordance with the prayer of said petition, made an order incorporating said district of country, and the inhabitants thereof, in conformity to the act of the legislature in such cases provided, said order of incorporation being in regular form.

It further appears that a considerable portion of the country included in the metes and bounds of said town as thus incorporated consisted of farms and farming lands, a portion of which were the lands of the relators. That two-thirds of the taxable inhabitants petitioned the county court for the order of incorporation is not questioned, nor is it questioned that defendants were elected as trustees of the district so incorporated, provided the incorporation was legal, and the inhabitants had a right to elect trustees for said town. The defendants admit that they are exercising the duties of the office of trustees of said town, and that they have passed ordinances and are about to levy and collect taxes from the inhabitants of said town, among whom are the relators. It is also shown by the evidence that at and before said order of incorporation, the said town of Butler as laid off and a plat thereof recorded, owned no commons or lands attached or belonging thereto, known by that description. Under this state of facts the plaintiff asked the court to declare the law to be as follows:

“If the court finds that a petition signed by two-thirds of the tax payers, citizens of the town of Butler, praying for an order incorporating the town of Butler and district of country surrounding said town, embracing 1,200 acres of land, three-fourths or four-fifths of which 1,200 acres of land is held, occupied and used exclusively for farming and agricultural purposes, and that only about 260 or 280 acres of the 1,200 acres were at the time included within the said town of Butler, and all its additions, the county court upon such a petition could not, under the statute, incorporate by its order any of the said district of country outside of or beyond the limits of the town and its additions, there being no commons belonging to said town; and the defendants when acting as town trustees outside of said town and its additions, though it be inside of said district of country, are acting without any warrant of authority and contrary to the statute in such case made and provided.”

2d. “If the relators are not residents of the said town of Butler, but farmers living about one-fourth of a mile outside and beyond the town of Butler and all of its additions, neither their lands on which they reside, nor their personal property thereon, nor themselves while residing there, can, under the statute, (ch. 41, Gen. Stat.) be subjected to the regulations and by laws of an incorporated town, and compelled to pay corporation tax. And although the said farms of relators may have been embraced in an order of the Bates county court, purporting to incorporate the said “town of Butler and district of country,” any action of said defendants as town trustees by virtue of said order of said court outside of said town and additions, though within said district of country, is without warrant of authority and contrary to the statute.”

3d. “The district of country described in the (petition) information, not being a part of the town or village of Butler, nor of its additions or commons, but farms, could not be incorporated under the General Statutes, chapter 41, and defendants have no authority as town trustees, within said district of country,...