State v. Huff

• Decision Date: 01 March 1904
• Parties: STATE ex rel. CHANDLER v. HUFF et al.
• Court: Missouri Court of Appeals

79 S.W. 1010

105 Mo. App. 354

STATE ex rel. CHANDLER v. HUFF et al.

St. Louis Court of Appeals. Missouri.

March 1, 1904.

MUNICIPAL CORPORATIONS—INCORPORATION —ORDERS OF COURT—EFFECT—COLLATERAL ATTACK—QUO WARRANTO TO TEST VALIDITY OF INCORPORATION — PARTIES — LACHES — STATUTORY REPEAL OF CHARTER LAW—EFFECT ON CHARTERS.

1. An order of the county court incorporating a village is a judgment having the force of any other judgment rendered by a court of competent jurisdiction, and is not open to collateral attack.

2. An order of the county court incorporating a village, which describes the commons as "on the west side of said limits one quarter of a mile in a westerly direction," is not so indefinite as to make the description of the territory attempted to be incorporated void, as the word "westerly" means due west, rendering the description definite and certain.

3. Where an order incorporating a village remains in force and is not void on its face, the county court has no jurisdiction to again incorporate it.

4. Where the sole purpose of a quo warranto proceeding to oust from office the mayor and councilmen of a city is to test the validity of the incorporation of the city, the city is a necessary party, it being the real party in interest.

5. The courts, in the absence of any statute on the subject, will refuse to repeal the charter of a municipal corporation which has stood unchallenged for from 10 to 15 years, and where the municipality has acquired property, contracted debts, assumed jurisdiction over the streets and alleys, and has taken on itself the duty of preserving the peace of the community.

6. Laws 1895, p. 90, § 108, though repealing the laws under which municipal charters were obtained, does not repeal the charters themselves.

Appeal from Circuit Court, Lawrence County; Henry C. Pepper, Judge.

Quo warranto by the state, on the relation of W. T. Chandler, against John Huff and others. From a judgment for defendants, the relator appeals. Affirmed.

White & McCammon and Vaughan & Coltrane, for appellant. W. B. Skinner and J. C. Hayden, for respondents.

Statement.

BLAND, P. J.

On the information of the prosecuting attorney of Greene county, at the relation of W. T. Chandler, the defendant T. Polk James was required to show by what authority he exercised the office of mayor of the city of Ash Grove, in said county, and the other defendants by what authority they exercised the functions of common councilmen of said city. The controversy grew out of the following two orders made by the county court of Greene county incorporating the town of Ash Grove. The first, made May 8, 1871, omitting caption, reads as follows: "Now, at this day comes a number of the citizens of the town of Ash Grove, in Greene county, Missouri, and file their petition asking that they be incorporated under the provisions of chapter 41, title 15, General Statutes of Missouri, said petition setting forth the following metes and bounds, embracing the following quarter of said town, that is to say: The east half of the northwest quarter of the southwest quarter, the east half of the southwest quarter of southwest quarter, and the east half of the southwest quarter, of section 21, township 30, range 25, and, as commons to said town on the west side of said limits, one quarter of a mile in a westerly direction. And the court being satisfied that two-thirds of the taxable inhabitants of said town have signed said petition, and that the prayer of said petitioners is reasonable, it is ordered and hereby declared that said town is hereby incorporated by and under and within the above described limits, and shall be henceforth known as a body corporate by the name and style of the inhabitants of the town of Ash Grove. And it is further ordered by the court that J. F. G. Bentley, L. P. Downing, William Comegys, W. S. Hawkins, and Henry Hay be and they are hereby appointed trustees of said town of Ash Grove." The second order, dated January 1, 1884, omitting caption, reads as follows: "Now at this day comes on to be heard the petition of J. F. G. Bentley and other inhabitants of the town of Ash Grove, praying to be incorporated as a city of the fourth class under and by virtue of the provisions of article 1, chapter 89, Revised Statutes of Missouri. And said petition being by the court fully heard and carefully examined, and it appearing to the court from said hearing and examinations of said petition, and from evidence submitted, that a majority of the taxable inhabitants of said town of Ash Grove in the metes and bounds hereinafter described have signed said petition, and that said town contains a population of more than 500 and less than 5,000: It is therefore by the court ordered that said city of Ash Grove be, and the same is hereby, incorporated, and that the inhabitants within the following described metes and bounds, viz., beginning at a point in section 21 on the east side of the Walnut Grove road ¼ of a mile south of the north line of said section 21, being the southwest corner of northeast ¼ of northwest ¼ of section 21, township 30, range 24, running thence west 20 rods, thence north 20 rods, thence west 40 rods, thence south 20 rods, west 20 rods to the section line between sections 21 and 20, thence south ¼ mile, west ¼ mile into section 20, thence south 40 rods, thence west ¼ mile, thence south 80 rods, thence east ¼ mile to section line between sections 21 and 20, thence south ¼ mile, thence east ½ mile to section line between sections 21 and 28, thence north ½ mile, thence west ¼ mile to east side Walnut Grove road, thence north ¼ mile to beginning, all in township 30, range 24, shall be a body politic and incorporate by the name and style of the city of Ash Grove, and the following named persons shall be the first officers of said city of Ash Grove, who shall hold their offices respectively until the general election for city officers in said city, to be held on the first Tuesday in April, 1884, and until their successors are elected and qualified: As mayor, David Allen; as marshal, Thomas McCall; as aldermen, W. C. Swinney, Wm. Comegys, J. W. B. Appleby, and W. C. Crane." The town operated under the first order of incorporation until its officers were superseded by the officers appointed under the second order of incorporation. The city continued to operate under the second order of incorporation until April, 1888, when its councilmen resigned, and the mayor and the marshal removed from the town. The resignation of the councilmen was for the purpose of avoiding the service of a threatened mandamus on them to compel them to levy a special tax against the inhabitants of the city to pay a judgment of $3,500 recovered by Mrs. Sarah Hurst against the city of Ash Grove, which had just been affirmed by the Supreme Court. This judgment was compromised, and paid by voluntary contributions of the citizens of Ash Grove on March 20, 1902. After the satisfaction of the judgment, a justice of the peace of Ash Grove called an election to be held in said city in May, 1902, for the purpose of electing city officers. Pursuant to the call or notice of the justice of the peace, an election was held, at which respondent James was elected mayor, and the other respondents elected councilmen of the said city, and they were duly inducted into their respective offices, and were discharging the duties thereof when this proceeding to oust them was commenced. From April, 1888, until after the election in May, 1902, the city was without any officer or officers, and made no effort to operate under either of the orders of incorporation. At the time it ceased to operate as a city it is shown it was indebted to the marshal in the sum of $125, which has never been paid, and it also owed A. T. Weir, a lumber merchant, $18, not yet paid. The second order of incorporation takes in most of the land described in the first order, and a considerable territory in addition thereto. Over...