State v. Heffernan

• Decision Date: 31 May 1912
• Citation: 148 S.W. 90
• Parties: STATE ex inf. WEST, Pros. Atty., ex rel. THOMPSON v. HEFFERNAN.
• Court: Missouri Supreme Court

148 S.W. 90

STATE ex inf. WEST, Pros. Atty., ex rel. THOMPSON v. HEFFERNAN.

Supreme Court of Missouri. Division No. 1.

May 31, 1912.

1. COURTS (§ 231)—APPELLATE JURISDICTION —CONSTITUTIONAL QUESTIONS.

The Supreme Court has jurisdiction of an appeal involving constitutional questions, though the cause be disposed of on other grounds.

2. QUO WARRANTO (§ 55)—BURDEN OF PROOF.

In quo warranto to challenge defendant's right to the office of commissioner of a special road district incorporated under Act April 14, 1905 (Laws 1905, p. 282), now Rev. St. 1909, § 10,611 et seq., the burden was on relator to show right to maintain the action.

3. HIGHWAYS (§ 93) — SPECIAL ROAD DISTRICTS—ELECTIONS—METHOD OF HOLDING.

Under Act April 14, 1905 (Laws 1905, p. 282), now Rev. St. 1909, § 10,611 et seq., which provides for the organization of special road districts, and requires the board of commissioners to call elections for its members, the manner of taking, as well as of ascertaining and recording, the result is left to that body.

4. EVIDENCE (§ 73)—PRESUMPTIONS—REGULARITY OF CORPORATE PROCEEDINGS.

Corporate acts and proceedings are presumptively regular.

5. EVIDENCE (§ 337)—MUNICIPAL PROCEEDINGS.

Records of municipal acts and proceedings are admissible to show the truth of facts recited.

6. EVIDENCE (§ 163)—BEST EVIDENCE—CORPORATE ACTS.

Records of the board of commissioners of a special road district organized under Act April 14, 1905 (Laws 1905, p. 282), now Rev. St. 1909, § 10,611 et seq., required by the law to be kept, are the best evidence of the board's acts in holding an election.

7. QUO WARRANTO (§ 54) — PLEADING — ADMISSIBILITY OF EVIDENCE.

Where the answer, in quo warranto to challenge defendant's right to the office of commissioner of a special road district organized under Act April 14, 1905 (Laws 1905, p. 282), now Rev. St. 1909, § 10,611 et seq., setting up defendant's election, was not put in issue, relator was not entitled to show that the ballots of qualified electors were rejected.

8. QUO WARRANTO (§ 23)—EXPIRED TERMS OF OFFICE.

An information in quo warranto may be tried after expiration of the term of office to which it relates.

Appeal from Circuit Court, Greene County; J. T. Neville, Judge.

Quo warranto by the State, on the information of J. C. West, Prosecuting Attorney of Greene County, at the relation of A. D. Thompson, against F. S. Heffernan. Judgment for relator, and defendant appeals. Reversed and remanded.

This is an information in the nature of a quo warranto, filed in the circuit court for Greene county by the prosecuting attorney, at the relation of an owner of land in James River Club House road district of Greene county, a special road district incorporated under the act of the General Assembly, approved April 14, 1905. Laws 1905, p. 282; 3 R. S. 1909, § 10,611 et seq. It challenges the right of the defendant to exercise the office of commissioner of the district. The answer denies the usurpation charged, assumes the burden of justifying the exercise of the office, and sets forth with sufficient detail the election of the appellant by the landowners, at an election duly called by the commissioners, hold on the first Tuesday after the first Monday in January, 1904. It also sufficiently states his qualification, and that he was a citizen of the United States and of this state, an owner of land in the district, and had been a resident of Greene county for more than 40 years.

At the trial he identified the records of the corporation, and read therefrom the call for and the record of the election, showing the appointment of the tellers, the opening of the polls, and the vote by ballot, and the declaration that there were 14 votes cast, of which the appellant received 11 and one George B. McDaniel 3, and declaring that appellant had received a majority of the votes cast, and was duly elected commissioner of said district. This record was signed by the president and secretary of the district. He also proved his qualifications for the office and the taking and filing of the oath, and rested his case. The court remarked: "As far as the evidence shows, Mr. Heffernan was duly elected." The relator contended that this was not sufficient, and that the true return of the election is the ballots and tally sheets, to which the court remarked they were not in evidence. Relator refused to offer further evidence. The court said it would like to see them, and relator consented to their introduction. The court thereupon sent to the office of the clerk of the county court, and a paper box, unlocked, unsealed, and only tied with a piece of twine was brought and emptied on the table. It contained no signatures of the officers of election, or any electors of the district, or any other evidence of authority for writings or figures thereon shown. The respondent objected to the introduction of these papers, on the grounds, among others, (1) that the law does not require any return of the election of commissioners to be made to the county clerk; (2) because the proxies, ballots, tally sheets, and memoranda did not purport to have been used in the election; (3) that the tally sheets were not authenticated by any one. It was admitted, however, that these were tally sheets used and the ballots cast at the election, and had been returned to the county clerk by the judges and clerks.

The court overruled the objection and proceeded to examine the papers without further evidence of any kind, to which the appellant excepted. What the judge found in the box is stated by him in findings of fact filed, in substance, as follows: There were at least 14 persons present at the election, qualified voters, and of these 3 voted for McDaniel and 11 for Heffernan. Twenty-five landowners in the district were represented by proxies, 18 of which voted for McDaniel and 7 for Heffernan. The acres of land represented by votes cast for Heffernan amounted to something like 1,400 or 1,500. It was impossible to tell the exact amount. The acres of land represented by votes for McDaniel amounted to something over 2,500. It was impossible to say the exact amount. Upon this evidence the judgment of ouster was rendered. The points to which reference will be made in the opinion were properly saved and assigned as error.

J. J. Gideon and H. C. Young, for appellant. J. C. West, pro se. G. A. Watson and J. J. Collins, for respondent.

BROWN, C. (after stating the facts as above).

1. The statute to which the road district is indebted for its existence is founded upon the theory that good roads constitute an improvement to the lands accessible to them, and that to that extent the land so benefited should be charged with the cost of such improvement. The district is an organized body, not of citizens, nor even of property holders generally, but of landowners, combined for the purpose of increasing the value of their own holdings, and willing to pay the cost, or such portion of the cost, as should be imposed upon them by common consent and the law by which they were created. That public quasi corporations constitute legitimate instruments for this class of improvement has never been seriously questioned; their public character being based upon the incidental benefits derived by the public from such improvements. Their government has been frequently intrusted, not to the whole body of the people of the districts included, but to the owners of the property immediately affected, upon the principle that, as these were the persons peculiarly affected by the scheme, it is fair to permit them, under proper restrictions in the interest of the public, to control the funds which they themselves contribute for the purpose. In this case the corporation was formed by the landowners of a restricted territory, under the act mentioned in the foregoing statement, now article 7, c. 102, of the Revised Statutes of 1909; all other citizens than property owners being excluded from participation by the terms of the act. By this act the district is made a body corporate, possessing the usual powers of corporations for public purposes; and it is further provided (R. S. 1909, § 10,617) that "it shall be a political subdivision of the state for governmental purposes." From these provisions it is evident that the Legislature did not intend to leave the municipal character of its new creation in doubt. Its corporate powers are vested in a board of three commissioners. Id. § 10,613. The validity of this corporation, and, consequently, of the governing board in which its corporate powers are vested, is expressly admitted by the information; and the only matter at issue in this proceeding is the election of the appellant as a member of that board. The law provides (Id. § 10,613) that these commissioners shall be "landowners in said...