State v. Bright

• Decision Date: 09 April 1923
• Docket Number: No. 22708.,22708.
• Parties: STATE' ex rel. THOMPSON, Pros. Atty., ex rel. PUGH et al. v. BRIGHT at al.
• Court: Missouri Supreme Court

250 S.W. 599

298 Mo. 335

STATE' ex rel. THOMPSON, Pros. Atty., ex rel. PUGH et al.

v.

BRIGHT at al.

No. 22708.

Supreme Court of Missouri, Division No. 2.

April 9, 1923.

Appeal from Circuit Court, Ray County; Ralph Hughes, Judge.

Quo warranto by the State, on the relation Of David A. Thompson, Prosecuting Attorney for Ray County, at the relation of Thomas Pugh and Fleetwood Rust, against Arch Bright and others. From a judgment for respondents, relators appealed to the Court of Appeals, which transferred the case to the Supreme Court. Affirmed.

Clark, Milligan & Garner and M. Milligan, all of Richmond, and Jacobs & Henderson, of Kansas City, for appellants.

Lozier & Morris, of Carrollton, and Lavelock & Kirkpatrick, of Richmond, for respondents.

DAVID B. BLAIR, P. J.

This is a proceeding in quo warranto In the circuit court of Ray county, attacking the validity of the proceedings attending the organization of consolidated school district No. 2 of Ray and Carroll counties, and seeking to oust respondents as directors of such consolidated school district. From a judgment sustaining the validity of such proceedings and denying the ouster, relators have appealed.

The appeal was granted to the Kansas City Court of Appeals, and that court transferred the case to this court. Counsel for relators and respondents filed a stipulation in the Court of Appeals, agreeing that the case be transferred to this court, stating in such stipulation: "It being mutually understood, herein, that a constitutional question is involved." The mandate of the Court of Appeals was based on such stipulation. There is no constitutional question involved, as a careful examination of the record discloses. As said by Faris, J., in the case of In re Letcher, 269 Mo. loc. cit. 147, 190 S. W. loc. cit. 21:

"We are by law the keepers of our own jurisdiction and we have the right and it is our duty to determine this question for ourselves as the initial question up for decision in any case which comes before us."

The parties attempted to confer jurisdiction upon this court by stipulation. Such stipulation was utterly futile for that purpose and did not authorize such transfer to this court. As we said, in Estate of Bennett v. Bennett (Mo. Sup.) 243 S. W. 769:

"Parties of cases cannot confer appellate jurisdiction upon this court by agreement."

However, an examination of the record discloses that the appeal should have been granted to this court in the first instance, because "the title to an office under this state" is involved. Article 6, § 1.2, Missouri Constitution; State ex inf. Sutton v. Fasse, 189 Mo. 532, 88 S. W. 1; State ex rel. v. Stone, 152 Mo. 202, 53 S. W. 1069; State ex rel. v. Hill, 152 Mo. 234, 53 S. W. 1062; State ex rel. West v. Consolidated School District No. 2 (Mo. Sup.) 234 S. W. 54. The foregoing cases hold that the office of school director is an "office under this state" within the meaning of article 6, § 12, of the Constitution. Since the case falls within our appropriate appellate jurisdiction, it is our duty to dispose of the case, regardless of the grounds upon which it was transferred to this court.

The validity of the proceedings attending the organization of the consolidated school district and the right of respondents to hold their offices as directors of such district is challenged in the petition upon the following grounds:

"Because proper and legal notices of said special meeting to vote on the proposition to form said proposed consolidated district were not posted according to law; because said county superintendent did not post proper and legal plats of said proposed consolidated district as required by law; because said county superintendent did not file a proper and legal plat of said proposed consolidated district with the county clerks of said Ray and Carroll counties, as required by law; because the special meeting at which said proposition was attempted to be voted on was not legally organized, and said proposition was not legally submitted; because the proceedings of said special meeting were not properly and legally certified to the county clerks and to the county superintendents of schools of the counties affected, because the petition asking for said special meeting was not filed with the county superintendent of schools in the county in which a majority of the petitioners resided, to wit, Ray county; because proper and legal copies of said petition and of said plat were not filed with the county clerks of each county, to wit, Ray and Carroll, from which territory was proposed to be taken.

"Your petitioner further states to the court that, at the purported election, your petitioner Rust, who was then and there a qualified voter, was denied the right and privilege of franchise and voting; that he arrived at the place of voting about 5 or 10 minutes after 2 o'clock p. m.; that the votes at that time had not been counted nor had not been finally collected; that he tendered his vote, expressed his desire to vote; that he was a qualified voter, and the defendants well knew that he was a qualified voter, and well knew that he was interested in the outcome of said election; that, notwithstanding this knowledge on the part of the defendants, they then and there refused the petitioner Rust the right to vote, and did not accept his ballot, and the same was not counted.

"Your petitioner further states that, if he had been permitted to vote and cast his ballot, he would have cast his ballot `against consolidation'; that thereafter, when the result of the said vote was tabulated, the result was 52 for consolidation and 51 against consolidation.

"Your petitioner desires to show the court that, had he been permitted to vote, the result of the said election would have been a tie, and there would have been no so-called consolidated district formed. The directors were illegally elected, and there is nothing in the records to indicate how the ballot stood for the respective directors who purported to hold the office of director.

"Your petitioner further desires to show that there is nothing in the petition filed with the county superintendent of schools to indicate that there are at least 200 children of school age or that there is at least 12 square miles of territory embraced in the district proposed; that the county superintendent of schools did not in truth and in fact visit the district and really investigate the needs of the community; that all the information had and received on that subject by the county superintendent of schools was made and provided by the parties interested in that consolidation; that there were no proper legal notices posted; that there were no proper maps or plats posted; that the maps or plats which were purported to have been posted and purported to cover the territory embraced were not properly authenticated—they were not properly certified; that they bore no official title or the names of any official; that there was nothing about said plats to inform the people, residents of said district, that the same were posted by authority of law to embrace the properties purported to have been covered, and there was nothing about said plats that would indicate that they had anything to do with the purported and expected meeting for the purpose of voting on the consolidation of the district for the purpose of establishing a high school."

Before stating the facts in the case, it is well to understand the province of this court with respect to the facts found by the trial court. The proceeding is in quo warranto. It is a suit at law. The findings of the trial court on questions of fact, if supported by substantial evidence, are binding on this court. State ex rel. v. Wright, 270 Mo. 376, loc. cit. 387, 194 S. W. 35; State ex rel. v. Ice Co., 246 Mo. 168, loc. cit. 200, 151 S. W. 101; State ex inf. v. Hall (Mo. Sup.) 228 S. W. 1055, loc. cit. 1057. The case was tried by the court without a jury. No declarations of law were asked or given. Hence, we are bound by the findings of the trial court, where they are supported by substantial evidence.

It is not necessary to make a preliminary statement of the facts at length, since such facts will necessarily be more or less discussed in the opinion. The trial judge incorporated his findings of fact in the judgment which he rendered. They go into great length and detail. He found every fact at issue in favor of respondents, and fully sustained the validity of the proceedings and the right of respondents to hold their offices. He recited each and every step in the proceedings, from the filing of the petition requesting the county superintendent of schools to call a special school meeting, down to the election of some of the respondents as school directors at an election subsequent to the organization meeting.

I. It is contended that the court erred in finding for respondents because the greater weight of the evidence is in favor of relators and against respondents. Since this is an action at law, it is not our province to weigh the evidence. See cases above cited.

II. Relators contend that the county superintendent of schools of Ray county did not visit the community and really investigate its needs. The trial court found to the contrary. The record shows that such superintendent advised with persons in the districts included in the consolidated district, and that he was familiar with conditions therein. If he was familiar with the conditions and needs of the community, by reason of the previous discharge of the ordinary duties of his office, and had advised with those residing in the district, his" failure, If he did so fail, to visit the community after the filing of the petition and before fixing the boundaries of the consolidated district and taking the other steps devolving upon him, cannot defeat the organization. The only purpose of the statutory requirement is to familiarize the superintendent with the needs of the community....