State v. Morgan

• Decision Date: 02 June 1916
• Docket Number: No. 18754.,18754.
• Citation: 187 S.W. 54,268 Mo. 265
• Parties: STATE ex inf. WRIGHT, Prosecuting Attorney, v. MORGAN et al.
• Court: Missouri Supreme Court

187 S.W. 54

268 Mo. 265

STATE ex inf. WRIGHT, Prosecuting Attorney, v. MORGAN et al.

No. 18754.

Supreme Court of Missouri, Division No. 1.

June 2, 1916.

Appeal from Circuit Court, Nodaway County; Wm. C. Ellison, Judge.

Quo warranto, on the relation of George P. Wright, Prosecuting Attorney of Nodaway County, against Everett L. Morgan and others. From a judgment for respondents, the relator appeals. Judgment affirmed.

On July 7, 1914, George P. Wright, prosecuting attorney of Nodaway county, commenced a proceeding by quo warranto, in the circuit court of said county, against the above-named defendants, charging that they were unlawfully and willfully usurping and exercising the functions and prerogatives of directors of school districts numbered 141, 160, 161, 162, and 181, in said county, in the way and manner aforesaid, under the pretense and claim that the above-mentioned school districts were embraced in and constitute the alleged consolidated district No. 162 as aforesaid; and that said respondents have been, and now are, unlawfully and willfully acting in concert and together, as a board of school directors in the territory embraced in the school districts aforesaid, and are causing taxes to be assessed and levied, teachers to be employed, schools to be run, etc., and are performing all acts and things required and permitted to lawful school directors; all of which is willfully and unlawfully done to the injury and detriment of the state of Missouri.

On October 12, 1914, respondents filed their return, setting out in detail all the different steps and proceedings to establish consolidated school district No. 162, and tending to show that they were elected as directors in said consolidated district, as required by law. The facts stated in the return, if true, show a substantial compliance with the law, in regard to the formation of said district and the election of respondents as directors therein.

Relator filed a reply, putting in issue the facts pleaded by respondents in their return, and attacked the validity of the Acts of 1913, page 721 and following, upon the alleged grounds that said act violates section 28 of article 4 of our Constitution in that it contains more than one subject, which is not clearly expressed in the title; and that the title to said act is misleading and not broad enough to cover the subjects attempted to be embraced therein. He further charges that said act violates section 53 of article 4 of our Constitution in that it is local, special, and applies only to a part of the state; that a general law could be made applicable to the whole state; that it is a local option law and exempts from its operations portions of the state; that the attempted classification violates section 11 of article 10 of our Constitution. He further alleges that said act violates the Fourteenth Amendment to the Constitution of the United States in that it denies to the citizens of the state the equal protection of the laws; and that the enforcement of said act would abridge the privileges and immunities of citizens of the United States and of the state of Missouri.

The court, on the 19th of December, 1914, after hearing the evidence and argument of the counsel, found the issues in behalf of respondents and entered judgment in accordance therewith. The cause was duly appealed by relator to this court.

We have simply set out heretofore the substance of the petition, answer, reply, and judgment, as constituting the record proper; and have not set out any of the evidence and matters of exception, because the alleged bill of exceptions mentioned in the abstract of record does not contain a motion for a new trial, nor is there any call therein for same. This matter will be considered more fully in the opinion to follow.

Wm. G. Sawyers, Pros. Atty., of Maryville (George P. Wright and A. F. Harvey, both of Maryville, of counsel), for appellant. Cook, Cummins & Dawson, of Maryville, for respondents.

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

Appellant has set out, as a part of the record proper his motion for a new trial, the ruling of the court thereon, and alleged that an exception was taken to the action of the court in overruling same. Turning, however, to the abstract of record, and inspecting the contents of the alleged bill of exceptions, we find no motion for a new trial set out, nor is there any call made there for said motion.

Appellant, in his abstract of record, where matters of exception are relied on, must show by the record proper that his motion for a new trial was filed within the time required by law. He complied with this requirement, as shown by the record. He is likewise required, in his abstract of record, to set out, as a part of the bill of exceptions, the motion for a new trial, or by appropriate language call for same therein. In the case at bar, the alleged bill of exceptions does not contain any motion for a new trial, nor is there any call therein for said motion. Hence, under the repeated rulings of this court, we can only consider the record proper. Haggerty v. Ruth, 259 Mo. loc. cit. 222, 223, 168 S. W. 587; City of St. Louis v. Young, 248 Mo. loc. cit. 347, 348, 154 S. W. 87; Realty Co. v. Brewing Co., 247 Mo. loc. cit. 31, 32, 152 S. W. 31; Blanchard v. Dorman, 236 Mo. loc. cit. 438, 439, 139 S. W. 395; City of St. Louis v. Henning, 235 Mo. loc. cit. 51, 138 S. W. 5; Betzler et al. v. James, 227 Mo. loc. cit. 387, 126 S. W. 1007; Hays v. Foos, 223 Mo. loc. cit. 423, 424, 122 S. W. 1038; State ex rel. v. Adkins, 221 Mo. loc. cit. 120, 119 S. W. 1091; Groves v. Terry, 219 Mo. loc. cit. 597, 598, 117 S. W. 1167; Gilchrist v. Bryant, 213 Mo. loc. cit. 443, 111 S. W. 1128; Reed v. Colp, 213 Mo. 577, 112 S. W. 255; Stark v. Zehnder, 204 Mo. 442, 102 S. W. 992; Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638; State v. Ruck, 194 Mo. 416, 92 S. W. 706, 5 Ann. Cas. 976; State v. Revely, 145 Mo. 660, 47 S. W. 787; State v. Handley, 144 Mo. 118, 45 S. W. 1088; State v. Wray, 124 Mo. 542, 27 S. W. 1100; State v. Griffin, 98 Mo. loc. cit. 674, 12 S. W. 358, and cases cited. There are numerous other cases decided by this court, as well as the various courts of appeals, announcing the same rule of law. This court has endeavored to impress upon counsel throughout the state the necessity of observing this plain requirement. If members of the bar are heedless in failing to observe the law, in respect to these matters, with so many decisions requiring it, they should not expect the court to overlook such errors, when they are patent upon the face of the record.

II. Record Proper. The petition states a good cause of action, and the answer, as heretofore stated, sets out in detail all of the proceedings tending to show that consolidated school district No. 162 was legally established, as required by the Acts of 1913, page 721 and following, and that respondents were legally elected to fill the positions, from which they are now sought to be ousted by relator. The reply puts in issue the allegations of the answer, and attacked the validity of above act upon the grounds heretofore set out in the statement.

On the record thus presented, the trial court, after hearing the evidence and argument of counsel, found the issues in favor of respondents and entered judgment in accordance therewith. As the trial court, on the facts, has found in favor of respondents, and as we are precluded from reviewing same, because no motion for a new trial appears in the bill of exceptions or is called for therein, the judgment below must stand affirmed, unless the Acts of 1913, at page 721 and following, be held as unconstitutional upon one or more of the grounds set out in the reply.

III. The reply challenges the constitutionality of the Act of the General Assembly of Missouri, approved March 14, 1913, and reported in the Session Acts of 1913, at page 721 and following, on the ground that it is violative of section 28 of article 4 of the Constitution of Missouri in that it contains more than one subject which is not clearly expressed in the title, and because the title to said act is misleading and not broad enough to cover the subject attempted to be embraced therein.

We are relieved of the necessity of considering this question, on account of the recent ruling of the court in banc in the case of State ex rel. Clark et al. v. John P. Gordon, 261 Mo. 631, 170 S. W. 892. Judge Woodson, in speaking for the above court, in his opinion set out various sections of the act complained of, and in direct terms held that said act did not violate the provisions of section 28 of article 4 of the Constitution aforesaid. He cites in his opinion a large number of authorities sustaining the conclusion reached by him in that respect. In discussing other constitutional questions raised, in respect to said act, Judge Woodson, on page 649 of 261 Mo., page 897 of 170 S. W., said:

"This act is progressive and in keeping with the forward movement of the state and country at large — bringing home better schools and higher grades of instruction, which the ordinary public schools do not teach, and are incapable of teaching on account of the lack of means to construct appropriate buildings and to employ competent teachers. By this scheme of the Legislature, thousands of our children can and will be instructed in the higher branches of education not taught in the ordinary school, who are unable to go to city high schools, colleges, and universities away from home.

"The design of the Legislature is good and wise, and before the act conferring this beneficence upon the youth of the country should be declared invalid the reasons therefor should be so clear and unanswerable that no reasonable doubt should exist as to its unconstitutionality; and, after a careful reading of the briefs of the respective parties and having investigated the authorities cited, we are of the opinion that no such reason has been pointed out."

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