State v. Killam, No. 20384.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWhite
Citation273 Mo. 198,201 S.W. 52
PartiesSTATE, on Inf. of KILLAM, Pros. Atty., et al. v. COLBERT et al.
Decision Date05 January 1918
Docket NumberNo. 20384.
201 S.W. 52
273 Mo. 198
STATE, on Inf. of KILLAM, Pros. Atty., et al.
v.
COLBERT et al.
No. 20384.
Supreme Court of Missouri, Division No. 2.
January 5, 1918.
Rehearing Denied February 16, 1918.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

Information in the nature of quo warranto by the State, on the information of David E. Killam, Prosecuting Attorney of Lincoln County, at the relation of T. J. Higginbotham and others, against W. Y. Colbert and others. From the decree rendered, plaintiff appeals. Reversed and remanded, with directions.

David E. Killam, Pros. Atty., of Troy, Rufus L. Higginbotham, of Bowling Green, Sutton & Huston, of Troy, and Hostetter & Haley, of Bowling Green, for appellants. John L. Burns and Dudley & Williams, all of Troy, for respondents.

WHITE, C.


This proceeding was begun by an information in the nature of a quo warranto filed in the circuit court of Lincoln county by the prosecuting attorney of that county, at the relation of 25 persons whose names are given, challenging the right of the respondents to exercise the functions of commissioners

201 S.W. 53

of a special road district. The respondents filed their return alleging that they had been duly elected, had qualified, and were acting commissioners of the "Silex and Louisville road district of Lincoln county," setting out in detail the facts which, as they claimed, showed the organization of such district and their authority to serve as such commissioners. On the trial of the cause the records of the county court of Lincoln county, relating to the attempted formation of the Silex and Louisville road district, under sections 10611 to 10625c, Laws 1913, pp. 677 to 695, together with the petition and notice in said matter, were offered in evidence.

The petition in the proceeding set out the boundaries of the proposed road district, stating that it included in the aggregate 11,360 acres; set out a description of the several tracts of land included in it, with the name of the owner and the number of acres of each tract, and was signed by proper form by 35 or 40 of such owners. The statutory notice, dated on the day the petition was filed, signed by the clerk of the county court, setting forth the same boundaries as stated in the petition, with the same number of acres (11360), was directed to the several parties named as landowners in the petition. Proof of the proper service of notice also was made. The order of the county court incorporating the district was made May 17, 1915, being the first term following the filing of the petition and the publication of the notice. It recites, among other things, that the court finds the petition and notice were in due form and the notice duly served, "and that the court has duly acquired and has jurisdiction of the subject-matter of this cause and of all the persons interested therein, and of all the lands located within the boundary of said district." The order then recites:

"The court further finds from the evidence adduced that the public good requires and makes necessary that the boundaries of the said proposed district as set out in the petition and notice should be changed, but that such changes in the boundaries proposed shall not be so as to embrace any land not included in the notice given by the clerk of this court; that after such changes in the boundaries are made, the court further finds that such petition is signed and in writing consented to by the owners of more than a majority of all the acres of land within the district as so changed, and that said district and the boundaries thereof as changed are in all respects suitable and proper, and that district ought and should properly be incorporated and established by the name, and with the boundaries so changed, as aforesaid."

Then follows a description of the land included within the boundaries of the district as changed, leaving out a large part of the land included within the boundaries set out in the petition and notice. The land left out in the order is stated by the appellant to be 2,000 acres; the respondents claim it is only 1,220 acres. However, it is unquestioned that it is a large tract, some of it contiguous to the proposed road marked on the plat submitted to the court showing the boundaries of the district and the direction of a road in contemplation from Silex to Louisville.

The record does not show that a remonstrance was filed to the petition, nor that the petition was amended so as to conform to the territory embodied in the district covered by the order. Recitals in the order indicate that no remonstrance was filed, and the petition was not amended. It does not appear by the record thus introduced nor by other evidence that the parties, the relators, or any of them, were present at the time of the hearing of the matter before the county court, or that there was any hearing other than the consideration of the petition and notice. The authority for the order as shown in its recitals is based upon the petition and the notice in the form in which they were filed and served, as above set forth. The circuit court decided the district was properly incorporated, and dismissed the information. From that judgment, relators appeal.

I. It is claimed by the relators in this case that the county court was without jurisdiction to incorporate the district with the boundaries changed from those stated in the petition and notice, so as to exclude a large part of the land in contemplation by the petitioners for the formation of the district in the first place. The statute under which the proceeding was had (section 10612, Laws 1913, p. 678) requires that a petition signed by the owners of a majority of the acres of land within the district proposed to be organized, and setting forth the proposed name of the "district, and giving the boundaries thereof," etc., shall be filed in the office of the clerk of the county court 30 days before the beginning of the regular term of said court, and requires the clerk to give notice, setting forth the manner in which the notice is to be given:

"Said notices shall contain the names of at least three signers of said petition and set out the boundaries of the said proposed district, and shall notify all owners of land in said proposed district, who may desire to oppose the formation thereof, to appear on the first day of such regular term of court and file their written remonstrance thereto."

The section then provides for the filing of remonstrances in writing which are required to state the objections of remonstrators to the formation of the district, and at the term of court following:

"The court shall hear such petition and remonstrance, and shall make any change in the boundaries of such proposed district as the public good may require and make necessary, and if, after such changes are made it shall appear to the court that such petition is signed or in writing consented to by the owners of a majority of all the acres of land within the district as so changed, the court shall make an order incorporating such public road district, and such order shall set out the boundaries of such district as established.""

The section then directs:

"If no remonstrance shall have been filed, or all remonstrances filed are overruled by the

201 S.W. 54

court, the court shall determine whether such petition has been signed by the owners of a majority of the acres of land in the district, and, if so, shall make an order incorporating the district with the boundaries given in the petition, or with such boundaries as may be set forth in an amended petition signed by the owners of a majority of the acres of land affected thereby; and such amended petition may be filed at any time before the making of the order establishing a road district, but the boundaries proposed for the district shall not be so changed as to embrace any land not included in the notice given by the clerk, unless the owner thereof shall in writing consent thereto, or shall appear at the hearing," etc.

Then follow sections of the act which make provision for the appointment and election of commissioners after the incorporation of the district, their organization, the levy of taxes, the issuance of bonds, petitions for road improvements, and the hearing of objections and exceptions to such improvement, and the apportionment of the tax against the property of the district, in accordance with its value, and the benefits to be received from the construction of the road according to its distance from the road so constructed, the issuance of tax bills, making of contracts for the construction of the road, etc. This statute shows that two contingencies are provided for on the hearing of the petition:

First, where remonstrances are filed the court hears the petition and the remonstrances, and, if the public good requires it, makes a change in the boundaries of the proposed district, and incorporates it with such change. Evidently the change to be made in such case would be only after all the parties for or against the change might have opportunity to be heard before the court. All parties are notified of the original boundaries of the district as shown in the original petition and notice. It will be noticed that the only action to be taken by the county court under this section is the formation of the district, and the only question which would come before the court in the first contingency, if the district should be incorporated, would be whether the boundaries should be as set out in the original petition or changed on consideration of the remonstrances. A remonstrance could not, in any event, cover any other objection than one of these two: Either that the public good did not require the formation of the district at all, or that its formation should include land bounded differently from that stated in the petition. The Legislature doubtless had in mind that when a remonstrance is filed, suggesting...

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11 practice notes
  • State ex Inf. Attorney-General v. Curtis, No. 28264.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...240 U.S. 242; Jones v. Yore, 142 Mo. 38; Asphalt Co. v. Ridge, 169 Mo. 376; St. Louis v. Railways, 211 S.W. 671; State ex inf. v. Colbert, 273 Mo. 198; State ex rel. Inv. Co. v. McKelvey, 301 Mo. 1. (a) Section 2 of the act provides what the petition for the organization of the district sha......
  • State ex Inf. Shartel v. Mo. Utilities Co., No. 31441.
    • United States
    • United States State Supreme Court of Missouri
    • October 5, 1932
    ...already conferred upon it by state charter and municipal consent. Quo warranto is a direct proceeding (State ex inf. v. Colbert, 273 Mo. 198, 209, 201 S.W. 52) in which it may be determined whether or not such rights and privileges have in fact been conferred. The final orders and decisions......
  • State ex rel. Reorganized School Dist. R-2 of Newton County v. Robinson, R-2
    • United States
    • Court of Appeal of Missouri (US)
    • February 15, 1955
    ...264 S.W. 997, 999(4). See also State ex inf. Barrett v. Imhoff, 291 Mo. 603, 238 S.W. 122, 123(3); State on Inf. of Killam v. Colbert, 273 Mo. 198, 201 S.W. 52, 55(4); State ex rel. Major v. Wood, 233 Mo. 357, 135 S.W. 932, 935; State ex rel. Crow v. Flemming, 158 Mo. 558, 59 S.W. 118,...
  • State v. Thompson, No. 27027.
    • United States
    • United States State Supreme Court of Missouri
    • June 15, 1926
    ...charged with the cost of that work." We had that benefit assessment article under consideration in State ex inf. Killam v. Colbert, 273 Mo. 198, loc. cit. 210, 201 S. W. 52, where we held that the county court in organizing the district and in passing upon whether lands included in the......
  • Request a trial to view additional results
17 cases
  • State ex Inf. Attorney-General v. Curtis, No. 28264.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...240 U.S. 242; Jones v. Yore, 142 Mo. 38; Asphalt Co. v. Ridge, 169 Mo. 376; St. Louis v. Railways, 211 S.W. 671; State ex inf. v. Colbert, 273 Mo. 198; State ex rel. Inv. Co. v. McKelvey, 301 Mo. 1. (a) Section 2 of the act provides what the petition for the organization of the district sha......
  • State ex Inf. Shartel v. Mo. Utilities Co., No. 31441.
    • United States
    • United States State Supreme Court of Missouri
    • October 5, 1932
    ...already conferred upon it by state charter and municipal consent. Quo warranto is a direct proceeding (State ex inf. v. Colbert, 273 Mo. 198, 209, 201 S.W. 52) in which it may be determined whether or not such rights and privileges have in fact been conferred. The final orders and decisions......
  • Johnson v. Underwood, No. 27988.
    • United States
    • Missouri Supreme Court
    • February 3, 1930
    ...an "essential" step and must be strictly followed or tax bills are void. State ex rel. Major v. Ward, 233 Mo. 357; State v. Colvert, 273 Mo. 198; Meade v. Jasper County, 266 S.W. 469; Mississippi Fox River Drain. Dist. v. Ackley, 270 Mo. 157; Spurlock v. Dorman, 182 Mo. 242; Roth v. Gabbert......
  • Ballentine v. Nester, No. 38043.
    • United States
    • Missouri Supreme Court
    • August 6, 1942
    ...Alton Railroad Co. v. United States, 86 L. Ed. 378; Yee Bow v. Cleveland, 99 Ohio St. 269, 124 N.E. 132, 12 A.L.R. 1424; State v. Colbert, 273 Mo. 198, 201 S.W. 52; State v. Dixon, 335 Mo. 478, 73 S.W. (2d) 385; Marsh v. Bartlett, 343 Mo. 526, 121 S.W. (2d) 737; Merchants Exchange v. Knott,......
  • Request a trial to view additional results

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