State v. Clements

• Decision Date: 06 September 1924
• Docket Number: No. 24935.,24935.
• Citation: 264 S.W. 984
• Parties: STATE ex inf. BARRETT, Atty. Gen., ex rel. NEWMAN et al. v. CLEMENTS et al.
• Court: Missouri Supreme Court

264 S.W. 984

STATE ex inf. BARRETT, Atty. Gen., ex rel. NEWMAN et al. v. CLEMENTS et al.

No. 24935.

Supreme Court of Missouri, in Banc.

September 6, 1924.

Motion for Rehearing Denied September 18, 1924.

Original proceeding in quo warranto by the State of Missouri, at the information of Jesse W. Barrett, Attorney General, at the relation of Frank Newman and others, against B. M. Clements and others. Writ

W. P. Zumbrunn and W. B. Brown, both of Kansas City, and Alan F. Wherritt, of Liberty, for relators.

James S. Simrall, Martin E. Lawson, and Francis G. Hale, all of Liberty, for respondents.

DAVID E. BLAIR, J.

This is an original proceeding in the nature of quo warranto, whereby relators seek to oust respondents from their alleged pretended offices as directors of three common school districts in Clay county. Said districts are alleged to be comprised within and to be a part of consolidated school district No. 1 of Clay county, notwithstanding an alleged dissolution of such consolidated school district. Our writ to show cause issued, accompanied by our injunctive order restraining respondents in certain particulars not now important. Service of our writ was accepted by counsel for respondents, and their appearances entered in this court.

The common school districts of Clay county included in the consolidated district prior to May 3, 1923, were Faubian No. 51, Big Shoal No. 65 (63), Englewood No. 64, Linden No. 63 (?), and Fairview No. 50. The respondents claim to be directors of Faubian, Big Shoal, and Englewood common school districts, organized since such alleged dissolution of the consolidated district. Big Shoal district is referred to in the record both as No. 65 and No. 63, but that is of no importance now.

Separate answers and returns were filed by respondents. Relators' replies thereto were general denials. An issue of fact was thus raised, and Hon. Nick T. Cave, of the Callaway county bar, was appointed by this court as its commissioner to take the testimony and report to the court. He has filed his report and a complete transcript of the testimony taken by him.

The information and the answers and returns" are quite lengthy. We are saved the necessity of setting out even the substance thereof, because of admissions made by counsel. The sole question for decision is whether or not consolidated school district No. 1 of Clay county was legally dissolved or disorganized on May 3, 1923. The transcript contains the following statement of an agreement by counsel, to wit:

"Mr. Hale: For the purpose of the record, respondents would like for it to show that counsel for relators and respondents agree that the dissolution election held in consolidated school district No. 1, in Clay county, Mo., at Linden in that district on May 3, 1923, was regularly called in the manner and by the means provided by statutes, and that thereafter the several elections in Faubian district No. 51, in Big Shoal district No. 63, and in Englewood district No. 64 were all three called for reorganization purposes, as set out in respondents' return, were all duly called and held, and that, if the proposition of dissolving consolidated school district No. 1 duly carried at the election on May 3, 1923, then said school districts, Faubian, Big Shoal, and Englewood, were and are duly organized common school districts, and respondents herein are the duly elected, qualified, and acting directors of said common school districts.

"Mr. Wherritt: Relators admit that the foregoing statement of facts is correct, and that, if consolidated school district No. 1, Clay county, Mo., was legally dissolved on May 3, 1923, the respondents in this cause of action are the duly elected, qualified, and acting directors of said common school districts."

Other similar admissions appear in the transcript, but the foregoing is sufficient in scope for our purpose. Such admissions make it unnecessary for us to consider the various allegations of fraud, bad faith, and force made against respondents by relators, or the sufficiency of any of the preliminary proceedings preceding the election on May 3, 1923, itself, or any of the subsequent proceedings incident to the organization of the present Faubian, Big Shoal, and Englewood common school districts, or the regularity of the election of respondents as directors thereof.

We digress to say that it is apparent that the present lawsuit is by no means the first litigation arising since the organization of said consolidated school district. The organizaton itself was attacked by some of the present respondents. See State ex inf. Simrall ex rel. Benjamin M. Clements v. Clardy, 267 Mo. 371, 185 S. W. 184. The information in the case at bar alleges the pendency and final disposition of other suits. The various lawsuits indicate most serious factional differences among the residents of the consolidated district. Such differences have no bearing upon the question here at issue, but they shed an interesting side light upon the case.

The only question left in the case, in view of the admissions, is this: Did two-thirds of the resident voters and taxpayers of such consolidated school district vote to dissolve such district? If they did, the lawsuit is ended in favor of respondents. If they did not so vote, the consolidated district is still in existence, organization of the common school districts was wholly unauthorized and a mere nullity, there are no offices of directors of such districts, and respondents should be ousted from their pretended offices.

The statute governing disorganization or dissolution of consolidated school districts is section 11242, R. S. 1919, and reads as follows:

"Any town, city or consolidated school district heretofore organized under the laws of this state, or which may be hereafter organized, shall be privileged to disorganize or abolish such organization by a vote of the resident voters and taxpayers of such school district, first giving fifteen days' notice, which notice shall be signed by at least ten qualified resident voters and taxpayers of such town, city or consolidated school district; and there shall be five notices put up in five public places in said school district. Such notices shall recite therein that there will be a public meeting of the resident voters and taxpayers of said school district at the schoolhouse in said school district, and at said meeting, if two-thirds of the resident voters and taxpayers of such school district shall vote to dissolve any such town, city or consolidated school district, then from and after that date the said town, city or consolidated school district shall be dissolved, and the same territory included in said school district may be organized into a common school district under article III of this chapter."

Admittedly the procedural steps outlined in the statute were duly and properly taken. The sole question is whether two-thirds of the resident voters and taxpayers of such consolidated school district voted at said meeting to dissolve said consolidated district.

The parties are in agreement (and such is our view) that the statute requires that two-thirds of all the taxpaying voters residing in the consolidated district vote for such disorganization, and that it is not sufficient that two-thirds of those present at the meeting and having such qualifications vote for such disorganization. See State ex inf. Major v. Kansas City, 233 Mo. 162, loc. cit. 189, 134 S. W. 1007, and cases cited thereat.

The word "voter" is readily and universally understood to mean a person who is legally qualified to vote for elective officers generally. The word "taxpayer" is probably not so generally or clearly understood. In State ex inf. Sutton v. Fasse, 189 Mo. loc. cit. 536, 88 S. W. 2, a taxpayer is defined as "a person owning property in the state subject to taxation, and on which he regularly pays taxes." Such definition appears to be a very satisfactory one. Such voter and taxpayer must also reside in the consolidated school district, and two-thirds of all such must vote to disorganize or dissolve the district before it is legally dissolved.

Regardless of where the burden of proof in the case rested, relators assumed same upon the hearing before our commissioner. Among other things, relators offered in evidence the minutes of the meeting of May 3, 1923, duly signed by the chairman and attested by the secretary thereof. An affidavit signed by the same officials, which was filed with the county clerk of Clay county, was also offered in evidence. It set forth the same facts as did the minutes of the meeting. Among other things, the minutes recited as follows:

"Whereupon said meeting proceeded to vote on said proposition by ballot; and the vote thereon being finished, and all the ballots cast thereat being counted, it was found by the officers of said meeting, and so declared, that three hundred ninety-four (394) votes were east for the dissolution of said school district, and three (3) votes cast against the dissolution of said district, and that said proposition duly carried by the votes of more than two-thirds of the qualified voters and resident taxpayers of said district. Whereupon the chairman declared said district duly dissolved. No further business appearing the meeting duly adjourned."

It will be noted that the minutes recited that "said proposition duly carried by the votes of more than two-thirds of the qualified voters and resident taxpayers of said district." That part of the recital we have italicized is clearly equivalent to "resident voters and taxpayers," as required by the statute. A person cannot be a qualified voter of the district unless he is a resident thereof.

The statute does not provide for the taking of any particular steps to evidence the disorganization or dissolution of a consolidated school district by the meeting provided for in the statute, other than that two-thirds of the resident voters and taxpayers vote...