State v. Fleming

• Decision Date: 16 February 1898
• Parties: STATE ex rel. CROW, Atty. Gen., et al., v. FLEMING et al.
• Court: Missouri Supreme Court

44 S.W. 758

147 Mo. 1

STATE ex rel. CROW, Atty. Gen., et al., v. FLEMING et al.

Supreme Court of Missouri.

February 16, 1898.

QUO WARRANTO — USURPING CORPORATE POWERS — PARTIES — JUDGMENT — RES JUDICATA — LOCAL ACT — PLEADING.

1. An action of quo warranto for usurping the powers of a corporation is properly brought against the officers of such corporation as individuals.

2. The determination of a court that the majority of the taxable inhabitants of a town signed the petition to be incorporated as a city, as provided by Rev. St. 1889, § 977, makes the order therein incorporating the city a judgment, and not simply a ministerial or legislative act.

3. The judgment of a court, allowing a town to be incorporated as a city, may be invalidated by an action of quo warranto, since it is a direct proceeding by the state, which was not a party to the record in the cause in which such judgment was rendered, and consequently was not bound thereby.

4. An action of quo warranto lies to question the right of a city to extend its territorial limits as allowed by Rev. St. 1889, § 1580, as amended by Acts 1895, p. 65.

5. Act March 16, 1895, relating to elections in cities of the fourth class, which applies to all cities in the state of a certain class, is a general law, and not a local or special one.

6. A motion to strike out portions of a pleading should be specific, so as to clearly indicate the irrelevant parts.

In banc. Quo warranto by the state, on the information of E. C. Crow, attorney general, and F. A. Heidom, prosecuting attorney of St. Louis county, against William S. Fleming and others. Commissioner appointed to take testimony.

L. A. McGuinis & Martin & Bass, for defendant Fleming.

SHERWOOD, J.

This is an original proceeding instituted in this court by the attorney general and the prosecuting attorney of St. Louis county, in which they inquire quo warranto William S. Fleming as mayor, and the other respondents as board of aldermen, of the pretended city of Webster Groves, have usurped and are still usurping the powers, privileges, franchises, and prerogatives of a city of the fourth class over certain specified territory, the boundaries whereof are fully set forth in the petition. Briefly told, the history of this case is as follows: On March 26, 1896, a petition purporting to be signed by a majority of the taxable inhabitants of the unincorporated town of Webster Groves, and praying for its incorporation as a city of the fourth class, was presented to the county court of St. Louis county, in accordance with section 977, Rev. St. 1889. The boundaries of the territory which it was desired to have so incorporated were fully set forth in the petition. They are not the same boundaries set out in the information filed in this case, but the territory which the court was asked to incorporate is included within the boundaries set out in said information. On the 2d of April, 1896, said county court made an order incorporating the city of Webster Groves, in accordance with the prayer of the petition; and on the 6th of April it appointed William S. Fleming mayor, and the other respondents aldermen, of said city. On the 20th of the same month it made a nunc pro tunc order as of April 2d, in order to correct some fancied irregularities in the original order of April 2d. The several appointees of the county court qualified and entered upon the discharge of their duties, and thereafter an ordinance (No. 1) was duly passed, dividing the city into wards. At the general election in April, 1897, the respondents were elected mayor and aldermen of said city, respectively, were duly commissioned and qualified, and are now acting as such. On the 29th of April, 1897, an ordinance (No. 59) was passed by the board of aldermen, and approved by the mayor, extending the limits of said city (in accordance with section 1580, Rev. St. 1889, as amended by Acts 1895, p. 65) so as to include all the territory described in the information herein, and calling a special election, to be held on May 25th, at which the question of such extension should be submitted to the voters of the city for their approval. At the election held on that day a large majority of the voters of said city assented to such extension. On the 29th of said May an ordinance (No. 64) was passed by the board of aldermen, and approved by the mayor, reciting the result of the election held on the 25th, and declaring the limits of the city extended accordingly. In both of these ordinances the extended limits were fully described. On June 10th the mayor, in accordance with the provisions of Ordinance No. 59, issued his proclamation declaring such extension of the limits. On the 17th of July, 1897, an ordinance (No. 73) was passed by the board of aldermen, and approved by the mayor, dividing the enlarged city into four wards, and also Ordinance No. 74, providing for an election to be held August 4th, in the Fourth ward, for two aldermen therefrom. At said election Thomas S. Burnett and Thomas J. Shands were duly elected, and subsequently qualified. At the time of the filing of the information they were acting as such aldermen, but neither of them has been made a party to this action. The respondents, in their return, set out in hæc verba the several orders of the county court of St. Louis county incorporating the city of Webster Groves, with certain fixed and determined boundaries, in said orders fully set forth. The informants, in reply, admit that said orders were made and entered of record as alleged, but say that they were and are null and void, because: "(1) The petition for incorporation was not signed by a majority of the taxable inhabitants of the unincorporated town or city of Webster Groves. (2) That said order incorporated within the limits of said city of Webster Groves, as set forth in said order, large tracts of territory not included within the limits of the unincorporated town or city of Webster Groves, which tracts of territory so included contained many acres of land used for pasture and farming purposes. And informants further aver that the ordinance and proceedings extending the limits of the city of Webster were void on account of alleged irregularities in the vote upon the proposition to extend the same; and it is further alleged that there was no necessity for such an extension, that the territory sought to be annexed consists mostly of pastoral and farming lands, that the extension ordinance was passed solely for the purpose of raising revenue, and, upon information and belief, that between 80 and 90 per cent. of the taxpayers of the district sought to be annexed were, and still are, opposed to said annexation," etc. A motion to strike out from informants' reply all the allegations of fact in support of the above points was filed, on the ground that the matters and things therein charged and set forth are wholly irrelevant and immaterial to any issue which can possibly be raised in this cause, and because they are not proper subjects of inquiry herein. This record discloses that the state has, in the institution of this prosecution, a twofold object in view, to wit: First, to have declared void the original incorporation of the city of Webster Groves by the county court of St. Louis county, and, failing in that, second, to have the subsequent extension of the limits of said city declared void.

1. The authorities cited on behalf of informants sanction the direction of the information against the respondents as individuals, in manner and form as it has been directed. The true rule in such cases was tersely stated in an early English case (Rex v. Amery, 2 Term R. 515), where, quoting from Lord Hale's commonplace book, it was said "that, if a quo warranto be brought for usurping to be a corporation, it should be brought against particular persons, because it is in disaffirmance of the corporation, and then judgment of ouster shall be given; but, if it be brought for liberties claimed by a corporation, it must be brought against the corporation itself." See, also, 2 Spell. Extr. Relief, §§ 1843, 1844, 1852, 1811, 1812, and cases cited; People v. City of Spring Valley, 129 Ill. 169, 21 N. E. 843; People v. Rensselaer & S....