State v. Flemming

• Decision Date: 13 November 1900
• Citation: 59 S.W. 118,158 Mo. 558
• Parties: STATE ex rel. CROW, Atty. Gen., et al. v. FLEMMING et al.
• Court: Missouri Supreme Court

59 S.W. 118

158 Mo. 558

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

Supreme Court of Missouri.

November 13, 1900.

MUNICIPAL CORPORATIONS — INCORPORATION — VALIDITY — ATTACK — TERRITORIAL EXTENT — QUO WARRANTO — PARTIES.

1. Where there has been no fraud in procuring an order incorporating a city under Rev. St. 1889, § 977, authorizing the same when a majority of the taxable inhabitants of the district present a petition to the court, errors of fact made by the court in computing the number of taxable inhabitants within the district, or errors of law as to who are "taxable inhabitants," cannot be brought before the supreme court for review by a writ of quo warranto.

2. The incorporation of a city by an order of the county court under Rev. St. 1889, § 977, authorizing the incorporation of unincorporated towns and cities when a majority of the taxable inhabitants present a petition therefor, is not void because the order of incorporation includes within the limits of the city tracts not included within the original unincorporated town, some of which are used for agricultural purposes, where such use is merely temporary, and such tracts are so surrounded and connected with the lands used for city purposes as to constitute a part thereof.

3. Quo warranto proceedings to oust a municipal corporation from the exercise of a franchise which it usurps must be against the corporation itself, and not against its officers.

In banc. On the merits. For former opinion, see 44 S. W. 758.

The Attorney General, F. A. Heidorn, John F. Shepley, and Chas. S. Reber, for relators. Webster & Webster, G. A. Finkelnburg, and Dawson & Garvin, for respondents.

ROBINSON, J.

Since the opinion of this court on the motion to strike out from informants' reply certain allegations of facts therein stated, reported in 147 Mo. 1, 44 S. W. 758, and the further action of this court in denying informants' application to have made a party to this cause the city of Webster Groves, made after the case was argued and submitted upon its merits, but little now remains to be said. For a full history of the case and the records of the proceedings reference is made to the statement accompanying the opinion on the motion to strike out allegations of informants' reply. Briefly stated, however, it may here be said that informants, by this proceeding, seek to have declared void by this court the original incorporation of the city of Webster Groves by the county court of St. Louis county on the ___ day of April, 1897, for the reasons, as claimed by them: First, that the order of the county court was improvidently and fraudulently entered without evidence or information that the signers to the petition presented to it were a majority of the taxable inhabitants of the unincorporated town; second, that the boundaries of the unincorporated town were different from, and included less territory than, the boundaries of the city as incorporated by the county court; and, thirdly, because a majority of the taxable inhabitants of the district incorporated did not, as a matter of fact, sign the petition upon which the county court acted. And, further, it is contended that, if informants are wrong on these propositions, still the ordinance of the so-called city extending its limits so as to include and take in the territory surrounding Webster Groves was void for the reason that it was not approved by a majority of the qualified voters by the so-called city of Webster Groves, and, in the second place, because the ordinance so passed was and is unreasonable. The informants in the institution of this proceeding may then be said to have had in view the twofold object, first, to have this court declare void the original incorporation of the city of Webster Groves by the county court; but, if failing in that, to have its ordinance subsequently extending the limits of said city declared void. From the testimony taken it appears that a petition purporting to be signed by a majority of the taxable inhabitants of the unincorporated town of Webster Groves was presented to the county court of St. Louis county, in which the metes and boundaries of the town were set out and defined therein, and that said petition concluded with a prayer for the incorporation of said town under the name and style of the city of Webster Groves. The records of the county court further show that it found as a matter of fact that the petition presented was signed by a majority of the taxable inhabitants of said town, and that said town had more than two and less than three thousand inhabitants. Thus every fact necessary to give the county court jurisdiction of the subject-matter and to make the order of incorporation is affirmatively shown by the records, if it was essential that all such facts should appear to give validity to the order and judgment of incorporation. While this court, in disposing of the motion to strike out part of informants' reply in its opinion supra, did assume that the action of the county court in making its order incorporating the city of Webster Groves under the facts as charged in informants' petition was subject to direct attack through the medium of the writ of quo warranto, and that quo warranto was the proper method of procedure in a case of the character charged, it did not hold, nor can the faintest impression be drawn from what was said therein, that under a state of facts such as was disclosed by the testimony taken the writ of quo warranto, or, for that matter, any other writ or process known to the law, is adequate to relieve against the order and judgment as entered at that time by the county court. That order and finding of the county court, under the circumstances made, is final and conclusive, binding alike upon this and all other courts. That court, in such inquiries, is the agent of the state, exclusively authorized and empowered to ascertain and determine those very facts; and the state, through its attorney general, or its prosecuting attorneys of the different counties of the state, cannot question the act of the state's court agent acting within the scope of its authority, unless fraud and collusion on part of such agent is charged and proven, or unless fraud has been so practiced upon it in the matter of procuring the order that for that reason it might be treated as fraudulent. Here the charge of fraud upon the part of the county court...