State ex rel. Perkins v. Long

• Decision Date: 28 June 1918
• Citation: 204 S.W. 914,275 Mo. 169
• Parties: THE STATE ex rel. HENRY E. PERKINS et al. v. HENRY B. LONG et al
• Court: Missouri Supreme Court

204 S.W. 914

275 Mo. 169

THE STATE ex rel. HENRY E. PERKINS et al. v. HENRY B. LONG et al

Supreme Court of Missouri

June 28, 1918

Appeal from Clinton Circuit Court. -- Hon. Alonzo D. Burnes, Judge.

Affirmed.

Henry E. Perkins, F. B. Ellis, E. C. Hall for appellants.

(1) The demurrer and motion for judgment on the return should have been sustained. The court erred in overruling them, because (a) The return fails to show that a proper petition was presented. Laws 1913, p. 722. (b) The return fails to show that a meeting was held in the proposed district, or where it was held. (c) The return fails to show that a meeting was held pursuant to such notices. State v. Potter, 191 S.W. 57. (b) The return fails to show that such meeting or any meeting was called to order under the supervision of the county school superintendent. Laws 1913, p. 722. (e) The return fails to show that a meeting was organized and conducted in accord with Sec. 10865, R. S. 1909. (f) The return fails to show who, if anyone was chosen as chairman or who was secretary. (g) The return fails to show that the petition was filed with the county superintendent of the county in which a majority of the petitioners resided. Laws 1913, p. 723. (h) The return fails to show that such district contained two hundred children of school age. (i) The return fails to show what territory, with the boundaries thereof, if any, was comprised in such proposed district. (j) The return fails to show what specific proposition was submitted to the voters at the special meeting, or what territory was included therein. (2) The creative power by which such consolidated school districts are enabled to override the will and wishes of a vastly more numerous community, composed of the surrounding school districts, whose territory is being taken without giving them a voice in the proceedings, is principally comprised in the vote taken at the special meeting. If it votes no, there can be no organization; if it votes yes, and antecedent proceedings have been regular, the vote will give life and being to the new corporation. But to have such effect the acts must be certain, reasonably complying with the law granting the power, and designating with certainty well defined boundaries for the operation of such corporation. And unless the proposition voted on specifies the boundaries of the district sought to be formed the vote will not have the effect to create the corporation. School Dist. v. School Dist., 94 Mo. 618; Mason v. Kennedy, 89 Mo. 22. (3) Laws 1913, p. 722, require proceedings of the special meeting to be in accordance with Sec. 10865, R. S. 1909, which requires the chairman and secretary to keep a record of the proceedings. (4) Said Act of 1913, page 722, expressly requires the superintendent of schools to call the special meeting to order. This statute is mandatory. 36 Cyc. 1158-1159; Hope v. Flentge, 140 Mo. 402; State ex rel. v. Tucker, 32 Mo.App. 627; State ex rel. v. School Dist. 3, 163 Mo.App. 253; State ex rel. v. Denny, 94 Mo.App. 559. (5) The rule is that the burden is on respondents to show title to the office claimed, by both pleading and proof. State ex rel. Harris v. McCann, 88 Mo. 386; State ex rel. v. Giovanoni, 59 Mo.App. 43; Mechem Pub. Officers, secs. 490-491; State ex rel. Ewing v. Francis, 88 Mo. 561; State ex rel. Mo. Pac. Ry., 206 Mo. 40; State v. Powles, 136 Mo. 376.

R. H. Musser, Pross T. Cross, R. E. Culver, for respondents.

(1). The demurrer has the effect to admit all facts alleged; so that it is shown: "That none of the complainants are resident tax-payers of the consolidated school district; that the district of which respondents are directors was organized under Laws 1913, pp. 721 to 725; that a petition of twenty-five or more residents of the Grayson community petitioned the organization; that thereafter the county superintendent visited the community, investigated the needs and determined the boundaries of a proposed district, called a meeting, gave the notices, made the plats, posted plats, filed copies of plat, petitions, etc., with county clerks and superintendents; that meeting was held; that plat was there; that a vote was had; that fifty-two voted "for organization" and twenty-five "against organization;" that district was declared organized; that respondents were thereafter elected directors and these proceedings certified as required by laws to the county clerks and superintendents of Clinton and Buchanan County; that the district contained more than twelve square miles of territory," all of which appears to be all that the law requires. Laws 1913, pp. 721 to 725; State ex inf. v. Gordon, 261 Mo. 631; State ex inf. v. Morgan, 268 Mo. 266; State ex inf. v. Cloud, 192 Mo.App. 322; State ex inf. v. Jones, 266 Mo. 191; State ex inf. v. Clardy, 267 Mo. 371; State ex inf. v. Gleaves, 268 Mo. 100; State ex inf. v. Wright, 270 Mo. 376; State ex inf. v. Smith, 271 Mo. 168; State ex. inf. v. Stouffer, 197 S.W. 79; State ex inf. v. Moss, 187 Mo. 155; State ex inf. v. Berkley, 140 Mo. 184; State ex inf. v. Francis, 88 Mo. 557; State ex rel. v. Sims, 201 S.W. 910. (2) The court is without jurisdiction to determine this appeal. (a) Sec. 2631, R. S. 1909, allows the prosecution of the information to final judgment by the relators or their attorney, so that when the information is filed, the prosecuting attorney is without right to dismiss or discontinue the case, without the consent of the complainants. In this case, final judgment was entered. Sec. 2090, R. S. 1909; 2 Ency. Plead. & Prac. 53; 23 Cyc. 1232; 13 Am. & Eng. Ency. Law (2 Ed.) 24. (b) The affidavit for an appeal was made by the attorney of the complainants, and upon its face shows that it is not made by anyone with authority to make it; appeals are purely of statutory origin, and the right of appeal must exist in the person or the agent so applying or no jurisdiction is conveyed. Quo Warranto is a proceeding solely for the purpose of ascertaining by what right or title respondents or others coming within its provisions, are exercising rights, franchises and privileges which the State in its sovereign power can grant, and the State only is the aggrieved party, and the State only by its properly selected or elected representatives can take appeals. In this case, the prosecuting attorney was satisfied with the facts pleaded in the return and when it was adjudged sufficient by the court did not longer take part in the case. Judgment was entered, and from that judgment the State by no authorized person has taken an appeal. State ex inf. v. Duncan, 265 Mo. 34. The prosecuting attorney is by law the representative of the State within the county that elects him, and he prosecutes for and on behalf of the State all civil and criminal matters of the State, but private rights or injuries have nought to do with the public wrongs, and the public can only be represented through the official of the State who performs every act, made necessary by law, to be done on behalf of the State. The wrongful usurpation of a public office is a public wrong and only the State can be the plaintiff and the party aggrieved by such action. The State undertakes the prosecution not to punish the private injury, but the wrong done, the public and society is solely the object of the State solicitude. Sec. 2038-2040, R. S. 1909; State ex inf. v. Taylor, 208 Mo. 442; State ex inf. v. Standard Oil Co., 218 Mo. 345; State ex inf. v. McMillan, 108 Mo. 157; State ex inf. v. Rose, 84 Mo. 198; Hessig v. Atty. General, 104 Ills. 292; State v. Railroad, 242 Mo. 275; State ex inf. v. Railroad, 176 Mo. 687; Churchill v. Walker, 68 Ga. 681; 17 Ency. Plead. & Prac., 456-488. The relators are not parties to the information and have no rights of their own authority to make any application to the court. Atty. General v. Wright, 43 Eng. Chancery, 447; Commonwealth v. Burrel, 7 Pa. St. 34. The relators have no vested rights in the statute laws of the State and were without any further right of appeal after judgment without the consent of the prosecuting attorney.

OPINION

In Banc.

WALKER J.

This is a proceeding by information in the nature of quo warranto, to determine the right of respondents to exercise the duties of school directors. A return was filed by respondents to the information, to which the appellants demurred. This demurrer was overruled. Appellants refused to plead further, and on motion for judgment on the pleadings by the respondents, appellants' bill was dismissed, from which judgment an appeal was perfected to the Kansas City Court of Appeals. On motion of respondents, the case was transferred to this court for final determination, on the ground that a constitutional question, to-wit, "title to an office under the State was involved."

The question to be determined is the sufficiency of the answer. A better understanding of same may be had by setting forth first the material allegations of the information, which omitting formal matters as to the official character of the prosecuting attorney at whose relation the action is brought, and that he sues at the request of the individual relators (appellants here) named, avers that "the individual relators are taxpaying citizens and voters of School Districts No. 48 and No. 51 and that said school districts are legally constituted school districts in the county of Clinton, with proper and legally elected and qualified directors, exercising lawful jurisdiction over and being interested in the territory attempted to be included into and forming a part of the proposed consolidated school district for which the respondents herein claim to be directors by virtue of an attempted organization under and by virtue of Session Laws of 1913 of Missouri at page 721. That the proceedings for the...