State ex rel. v. Consolidated School Dist. No. 1

• Decision Date: 05 December 1921
• Docket Number: No. 2967.,2967.
• Citation: 238 S.W. 819
• Parties: FLEENER et al. v. CONSOLIDATED SCHOOL DIST. NO. 1
• Court: Missouri Court of Appeals

238 S.W. 819

FLEENER et al. v. CONSOLIDATED SCHOOL DIST. NO. 1

No. 2967.

Springfield Court of Appeals. Missouri.

December 5, 1921.

Rehearing Denied Jan. 4, 1922. Writ of Mandamus Dismissed by Supreme Court.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Proceeding in the nature of quo warranto by the State, on the relation of Claude Fleener and others, against Consolidated School District No. 1 and others. Judgment for defendants, and relators appeal. Affirmed.

McReynolds & McReynolds and John H. Flanigan, all of Carthage, for appellants. Owen & Davis, of Joplin, for respondents.

BRADLEY, J.

Relators, appellants here, caused to be filed in the circuit court an information in the nature of quo warranto, as follows:

"The state of Missouri, suing at the relation and to the use of V. H. Johnson, Claude Fleener, John C. Guinn, and C. E. McCulley, by C. S. Walden, prosecuting attorney for Jasper county, Mo., for its cause of action states that the defendant consolidated school district No. 1 of Jasper county, Mo., is a body politic, organized and existing as a consolidated school district under the laws of this state in Jasper county; that said organization was effected at an election held for that purpose on the 22d day of October, 1920, but that said consolidated school district is not entitled to exercise any of the rights or franchises belonging to consolidated school districts under the laws of this state, until the 30th day of June, 1921, until which date its corporate existence is suspended; that the defendants Elmer Earl, Nilson Olson, J. R. Brown, Joseph Giles, Hiram Pattison, and Ed Carlan are acting as directors of said consolidated school district No. 1; that an election of the qualified voters of the corporate defendant was held on the 5th day of April, 1921, at which election it was voted to levy a tax of 65 cents on the MO valuation upon all of the taxable property within said consolidated district No. 1; that said election was illegal and the assessment so sought to be made is illegal, for the reason that the corporate defendant has no right, power, or authority to do or perform any acts or things as a consolidated school district under the laws of Missouri until after the 30th day of June, 1921; that the individual defendants, in acting as directors and conducting said election, have usurped office, and the corporate defendant by conducting said election and seeking to levy the tax aforesaid has usurped a franchise, contrary to law; that the relators V. H. Johnson, Claude Flamer, John C. Guinn, and C. E. McCulley are citizen taxpayers residing within the territorial limits of said corporate defendant, and that all their property would be subject to the tax so voted by said levy.

"Wherefore plaintiff prays that the court, by its writ of quo warranto, inquire into the matters and things aforesaid, and the action of the voters of said corporate defendant in voting said assessments, and that the tax be annulled, set aside, and for naught held; that the corporate defendant be ousted of said unlawful exercise of franchises not properly belonging to it in and about said election and tax levy, and that the individual defendants and each of them be ousted from the illegal discharge of the' functions of school directors in and about said election and tax levy in said consolidated school district No.:1,, and for all proper relief."

A writ was duly issued directing respondents to show cause why the prayer of the information should not be granted, and why they should not be "ousted of their alleged unlawful exercise of franchises not Properly belonging to them in and about a school election held on April 5, 1921, and about the levy of a tax upon the taxable property within consolidated school district No. 1." Respondents filed a motion to quash the writ on the ground that the information failed to state sufficient facts to entitle relators to the relief prayed for. This motion to quash was sustained, and, relators failing to plead further, judgment went for respondents, and relators appealed.

The question is: Could the consolidated district function prior to June 30, 1921 Or was it an entity without vitality from the date of its creation on October 22, 1920, until June 30, 1921, by reason of the provisions of section 11262, R. S. 1919? The consolidated district was organized under sections 11257...