State v. McClain

• Decision Date: 15 March 1905
• Citation: 86 S.W. 135,187 Mo. 409
• Parties: STATE on Inf. of BERKLEY, Pros. Atty., v. McCLAIN et al.
• Court: Missouri Supreme Court

86 S.W. 135

187 Mo. 409

STATE on Inf. of BERKLEY, Pros. Atty., v. McCLAIN et al.

Supreme Court of Missouri, Division No. 1.

March 15, 1905.

SCHOOL DISTRICTS—ESTABLISHMENT—STATUTES —ELECTION—APPEAL—ARBITRATORS—QUALIFICATION —QUO WARRANTO—PARTIES—LEAVE TO SUE—DISCRETION—NATURE OF PROCEEDING.

1. A petition to determine the legality of the organization of a school district, filed by the prosecuting attorney of a county at the instance of a resident taxpayer of the district to be formed, is a proceeding in the nature of a quo warranto, or statutory quo warranto, authorized by Rev. St. 1899, § 4457, and not a quo warranto ex officio.

2. A proceeding in the nature of quo warranto to determine the validity of a school district, as authorized by Rev. St. 1899, § 4457, may be entertained by the court, or not, in the exercise of its judicial discretion.

3. Where, on petition in the nature of quo warranto to oust respondents from the position of school directors of a school district, it appeared from the petition, return, and agreed statement of facts that respondents were legally elected, and that relator voted for them, and induced one of them to become a candidate for the office, the question as to respondents' right to hold the office, if it existed, was not reviewable.

4. Where the right of school directors to exercise jurisdiction over certain territory depended on the legality of the organization of a school district embracing such territory, a proceeding in the nature of quo warranto to determine such question was properly brought against defendants, and not against the school district.

5. Rev. St. 1899, § 9742, provides for the formation of new school districts from two or more other school districts, to be determined by an election held on petition of 10 qualified voters residing in any affected district, and declares that, if all the districts or parts of districts affected do not vote in favor of the change, the matter may be referred to the county commissioner, and, on such appeal being filed with him in writing, he shall appoint four disinterested resident taxpayers of the county, who, with himself, shall constitute a board of arbitration to determine the matter. Held that, where the vote of all parts of districts affected was not in favor of the change, the original petitioners were entitled to appeal to the county commissioner.

6. Rev. St. 1899, c. 154, § 9742, providing for an appeal to arbitrators appointed by a county commissioner in a proceeding to establish a new school district, is a law complete in itself; and, as it does not require that the arbitrators be sworn, failure of arbitrators appointed thereunder to take oath before proceeding with the arbitration did not affect the validity of their decision.

7. In a suit to establish a new school district from other districts, 10 votes were cast in one district in favor of the proposition, and 8 votes against it. One of the voters in favor, however, was subsequently discovered to be a nonresident of the district, and another person who voted was not a citizen, but it was not shown which way he voted. Held, that such facts were insufficient to show that the district did not vote in favor of the proposition.

Appeal from St. Louis Circuit Court; S. P. Spencer, Judge.

Proceeding in the nature of quo warranto by the state, at the information of James G. Berkley, prosecuting attorney of Jefferson county, on relation of Mitchell McCormack, against Emmett S. McClain and others. From a judgment in favor of defendants, relator appealed to the St. Louis Court of Appeals, by which the case was certified to the Supreme Court. Affirmed.

Jos. G. Williams and Sam. Byrnes, for appellant. Edwin J. Bean and James F. Green, for respondents.

MARSHALL, J.

This is a proceeding under the statute in the nature of a quo warranto, instituted by the prosecuting attorney of Jefferson county, at the instance of a citizen, to oust the defendants from the position of school directors of School District No. 5, townships 39 and 40, ranges 5 and 6, of said county. The real question in the case is whether said school district was ever legally organized. On the one hand, it is claimed by the defendants that said school district was legally made up, by taking parts of four contiguous school districts and forming said parts into a new district; and, on the other hand, the relator claims that the prerequisites and proceedings provided by statute for the formation of a new school district, by severing the constituent parts from existing districts, were not complied with. The circuit court ordered judgment for the defendants, and the relator appealed to the St. Louis Court of Appeals, and that court certified the case to this court on the ground that this court has appellate jurisdiction of the case.

1. The petition was filed by the prosecuting attorney of Jefferson county at the instance of Mitchell McCormack, a resident taxpayer of the district to be formed. It is therefore a proceeding in the nature of a quo warranto, or statutory quo warranto, such as is provided for by section 4457, Rev. St. 1899, and not a quo warranto ex officio. The statute requires the prosecuting attorney to file such a proceeding when requested by an interested citizen, and forbids the prosecuting attorney from dismissing or discontinuing it without the consent of the person who set it in motion. It is therefore such a proceeding as the court may entertain, or refuse to entertain, according to a wise judicial discretion, and is not a common-law quo warranto, which may be filed ex officio by the Attorney General or prosecuting attorney without leave of court. The trial court granted leave to file this case, and there is no abuse of judicial discretion apparent in its action.

2. The petition is bottomed upon the predicate that the defendants have no right to hold the office or place of directors of School District No. 5, townships 39 and 40, ranges 5 and 6, not because they have usurped or intruded themselves into office, or wrongfully hold or execute such office, but because there is no such school district legally existent, and hence there is no such office. No claim is made that the defendants were not legally elected to, and rightfully exercise the powers of, the office or place or franchise of school directors of said district, if there is such a district; but, on the contrary, it appears from the petition and the return and the agreed statement of facts, upon which this feature of the case was submitted to the court, that such is the fact; that relator voted for them for such office, and, in...