State v. Fry

Citation254 S.W. 1084,300 Mo. 541
Decision Date05 October 1923
Docket NumberNo. 23550.,23550.
PartiesSTATE ex Inf. MUELLER, Pros. Atty., v. FRY et al.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Quo warranto by the State, on the information of Frederick E. Mueller, Prosecuting Attorney of St. Louis County, against William Fry and others. From a judgment ousting defendants, they appeal. Affirmed.

Jos. C. McAtee, of Clayton, for appellants. Julius R. Nolte, of Clayton, For respondent.

LINDSAY, C.

This proceeding originated in an information filed by Frederick E. Mueller as prosecuting attorney of St. Louis county against William Fry and two others, as defendants who are the appellants here. The information charged that the three defendants, since the 11th day of June, 1921, "pretended to have been elected to" and "have unlawfully claimed, usurped, used, held, and exercised the offices of school directors of, in and for" Chambers school district in St. Louis county, a "pretended" school district, having no legal existence. A writ of quo warranto issued, and defendants made return thereto. The defendants set forth in their return and answer certain proceedings, had upon notice, by adult taxpayers of the City of Ferguson school district, residing outside of the city of Ferguson, whereby a school district called Chambers school district was alleged to have been organized of territory outside of said city limits, but of territory theretofore forming a part of said City of Ferguson school district, and it was alleged that following and pursuant to said organization the defendants were elected as directors and qualified as such,

The defendants denied the allegation that there was no legally incorporated school district in St. Louis county known as Chambers school district, and denied that they had unlawfully held and exercised the office of school directors thereof. They also alleged that the territory in Chambers school district, formerly part of the Ferguson school district, constituted 57 per cent, of the taxable wealth of the Ferguson school district; that the population of Ferguson consisted mainly of persons working and having business in the city of St. Louis, and outnumbered the population of the Chambers school district in the ratio of three to one, and always elected the board of directors, and fixed tax rates so excessive as to be in a measure confiscatory of the property in Chambers school district, which is exclusively a farming district. They alleged that the people of Ferguson had passed a bond issue, which had been set aside and restrained, but were threatening again to pass such bond issue of $75,000 for the construction of a gymnasium, which would be of no benefit to the residents of Chambers school district. The informant filed a demurrer to the return and answer of defendants, and set forth in his demurrer the various special grounds upon which it is claimed that the return was insufficient. The demurrer is not based upon the ground of lack of formal compliance by defendants with the requirements of the statute under which defendants and, others proceeded in undertaking to organize Chambers school district, but is directed against the validity of the statute itself. The court sustained the demurrer, and entered judgment ousting defendants.

It stands conceded that there was no way by which the Chambers school district could be organized in the manner adopted into a separate district out of the territory forming part of Ferguson school district under the general laws applicable to school districts, but that it could be done in that manner, if at all, only by virtue of the act approved March 25, 1913 (Laws 1913, p. 715), now appearing as sections 11192, 11193, 11194, 11195, 11196, R. S. 1919. The act is said to be violative of paragraphs 2, 14, 15, 19, and 32 of section 53, art. 4, of the Constitution, in that it is a local or special law, (2) regulating the affairs of school districts, (14) changing the lines of school districts, (15) creating offices and prescribing the powers and duties of officers in school districts, and (19) regulating the management of public schools, in each and all of which particulars a general law could have been made applicable as required by paragraph 32 of said section 53.

The enabling provision of the act (section 11192, R. S. 1919) is as follows:

"In any county in this state containing seventy-five thousand population and adjoining a city having over five hundred thousand inhabitants, whenever territory is annexed to an incorporated town city for school purposes, the adult taxpayers residing outside of the corporate limits of the town or city and in the school district thereof may, after giving thirty days' notice," hold the meeting, and take the action for the formation of a new district set forth in defendant's return.

It is thus apparent that this statute can apply only in a county which has 75,000 population and which also adjoins a city having over 500,000 inhabitants. The defendants urge that the act "is "not in its terms local and special," and therefore should be sustained, and cite in that behalf State ex rel. v. Marion County, 128 Mo. 427, 30 S. W. 103, 31 S. W. 23, and State ex rel. v. Roach, 258 Mo. 541, 557, 558, 167 S. W. 1008. But this court in those cases was far from holding that the mere use of certain general terms or the statement of a classification, general only in its outward seeming, determines whether a law is general or local. The contention here is that in the act of 1913 the classification is according to population. Following that it is urged that classification according to population has been repeatedly held to be sufficient to remove an act, otherwise special, into the category of general laws. This is true. It was so held in State ex rel. v. Miller, 100 Mo. 430, 13 S. W. 677, a case cited and much relied upon by defendants. In that case the act under review, while at the time it could be applicable only to the city of St. Louis, because that city was then the only one in the state having a population of over 300,000, was so drawn as clearly to leave its provisions open to any other city thereafter attaining a population of over 300,000. But, the law involved in the case at bar is not so open to let in other counties than St. Louis county. Defendants cite also State ex rel. v. Wurdeman, 254 Mo. 561, 163 S. W. 849, and State ex rel. v. Southern, 265 Mo. 275, 177 S. W. 640.

In the Wurdeman Case there was under consideration indirectly the act of 1913 (Laws 1913, p. 199), under which there was created an excise commission for St. Louis county. Said act applied to "all counties in this state which now have, or...

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