State ex rel. Read v. Weatherby

• Decision Date: 31 October 1869
• Parties: STATE ex rel. WILLIAM H. READ, Plaintiff in Error, v. W. W. WEATHERBY et al., Defendants in Error.
• Court: Missouri Supreme Court

45 Mo. 17

STATE ex rel. WILLIAM H. READ, Plaintiff in Error,

v.W. W. WEATHERBY et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1869.

Error to Sixth District Court.

Boulware & Reed, for plaintiff in error, cited The People v. Utica Ins. Co., 15 Johns. 387, 388; Thompson v. The People, 23 Wend. 567; The King v. Leigh, 4 Burrows, 2145 to 2147; Art. III, Const. Mo.; People v. Wren. 4 Scam. 269; Sloan v. State, 8 Blackf. 361; Cheney v. Hosier, 7 Mun. 334; State v. McBride, 4 Mo. 303; Dartmouth College case, 4 Wheat. 518.

Carr, for defendants in error, cited Betts v. The City of Williamsburgh, 15 Barb. 255; Wood v. Peake, 8 Johns. 69; 3 Hill. 243; Griffith v. Bogart, 18 How. 158; Wyman et al. v. Campbell, 6 Porter, 219; 9 Wend. 382; 8 Wend. 645; Fry v. Bennett, 5 Sandf. 54; Garman et al. v. Lennox, Ex'r, 15 Pet. 115; 4 Cranch, 333; 3 Cranch, 229; 12 Barb. 573; State ex rel. Hequembourg v. Lawrence, 38 Mo. 535; Syme v. Steamboat “““Indiana,” 28 Mo. 335; Kayser v. Trustees of Bremen, 16 Mo. 88.

CURRIER, Judge, delivered the opinion of the court.

This is a proceeding in the nature of a writ of quo warranto. The information alleges that the defendants have “unlawfully usurped, and are now wrongfully holding and exercising the franchise of passing ordinances providing for the levy of taxes on the property of the inhabitants” of the town or village of Shelbina, in the county of Shelby, under the false pretense that the “inhabitants of said town are a body politic and corporate, under and by virtue of the provisions of chapter 41” of the General Statutes of the State of Missouri; that the defendants are also, in like manner, unlawfully exercising the franchise of appointing persons to collect such taxes, etc., and prays that the defendants may be required to show by what authority of law these franchises are being exercised by them; that judgment of ouster may be awarded, a suitable fine imposed, and costs recovered. The return denies the alleged usurpations, but admits the doing of the specific acts charged; and then proceeds to allege that the defendants were therein in the lawful and proper exercise of the duties of “trustees of the inhabitants of the town of Shelbina;” that the inhabitants of said town constitute a body politic and corporate, having been so “organized and established by virtue of an order of the County Court of said Shelby county, made and entered of record on the 5th of March, 1867;” that the defendants were duly appointed or elected trustees of the corporation thus constituted, and that they have since exercised the franchise in question, in virtue of the “authority thus conferred, and the authority contained in chapter 41 of the General Statutes.” A demurrer to the return having been overruled, the relator replied, admitting that the Shelby County Court, March 5, 1867, entered on its records an order declaring the people of said town incorporated by the name of the “Inhabitants of the town of Shelbina,” and designating the metes and bounds of said corporation. The reply then proceeds to allege that the order aforesaid was fraudulently made and procured on the part of the applicants therefor, and of the court granting it; setting out the particulars of said supposed frauds, and showing, among other things, that the petition upon which the court acted in granting the order and entering it of record, was not, as the law required it should be, signed by two-thirds of the taxable inhabitants of said town. This is substantially the state of the pleadings. On the trial the relator offered evidence tending to prove the facts averred in the reply. This evidence was objected to and excluded on the ground that the order of the Shelby County Court, declaring the inhabitants of the town of Shelbina a body politic and corporate, was judicial in its character, and that until annulled it was conclusive of the existence of the facts required to be shown as a condition to the grant of the order; and for the further reason that the facts offered to be proved could alone be inquired into upon a proceeding against the inhabitants of the town in their corporate name.

1. The demurrer to the return was properly overruled. It was not necessary, in alleging the existence of the corporation, to set out the facts preliminary to the grant of the order, and upon which the order was founded. (12 Barb. 573.) The order, and not the antecedent facts, brought the corporation into being The presence of these facts is to be presumed from the fact of the order until the order itself is attacked and overthrown. The court had jurisdiction of the subject, and the propriety and regularity of its action is to be presumed until the contrary appears. Its finding and judgment in the premises, until set aside, must be deemed conclusive of the main fact here sought to be drawn in issue. This principle is applicable to the acts and judgments of all courts of record having jurisdiction of the subject matter of such acts or judgment. (See Kayser v. Trustees of Bremen, 16 Mo. 88; Betts v. Williamsburgh, 15 Barb. 255; 1 Greenl. on Ev., part 3, ch. 5.)

2. The question of the existence or the non-existence of the supposed corporation was put directly in issue by the pleadings, and, in my opinion, properly. The information alleges, and it proceeds throughout upon the theory, that there was no such corporate existence as the defendants claim. The inquiry whether there was such a corporation, was not collateral, but primary and direct. It is not charged that the defendants intruded into an office, but that they usurped a franchise--no corporation, and, consequently, no...