State v. Potter

• Citation: 191 S.W. 57
• Decision Date: 20 December 1916
• Docket Number: No. 18570.,18570.
• Parties: STATE ex inf. BURGES, ex rel. MARBUT v. POTTER et al.
• Court: United States State Supreme Court of Missouri

191 S.W. 57

STATE ex inf. BURGES, ex rel. MARBUT v. POTTER et al.

No. 18570.

Supreme Court of Missouri, Division No. 1.

December 20, 1916.

Appeal from Circuit Court, Greene County; Arch A. Johnson, Judge.

Information in the nature of quo warranto by the state, on the information of John T. Burges, on relation of James Marbut, against L. D. Potter and others. From a judgment ousting defendants as school directors, they appeal. Affirmed.

This is an information in the nature of quo warranto filed in the circuit court for Barry county on November 14, 1913, by leave of court. It was presented by the prosecuting attorney of said county at the relation of James Marbut, a resident and taxpayer in school district No. 22 of said county, having a family including a child of school age who was a pupil in the school of said district. It challenges the right of the six defendants to exercise the office of directors of an alleged consolidated school district including the whole of said district No. 22 and four other districts in said county, challenging the organization and existence of said consolidated district. The cause was removed by change of venue to Greene county, where it was tried in the circuit court of that county at the January term, 1914. After the testimony was all in, the court filed the following finding of facts:

"The court finds the facts to be: That, on the 27th of May, 1913, a petition in regular form, signed by the requisite number of taxpayers of the proposed consolidated district, petitioning the county superintendent of schools to take the steps necessary to organize such consolidated district, was filed with the county superintendent of schools of Barry county, Mo. That, upon the receipt of the petition, the county superintendent of schools, having taught school in the proposed consolidated school district and being acquainted with the conditions and needs of the proposed district, prepared a notice of an election to be held on the 12th day of June, 1913, and that said notice was in form as required by law and was sufficient in form and substance. That, at the same time and on the same day the notice was prepared, the county superintendent of schools, by aid of plats found in the office of the county clerk, prepared a plat or map of the proposed consolidated district and traced the same onto blanks sent out by the state superintendent of schools, which blanks showed two political townships, with blank spaces in which to insert the number of range and townships; on the face of the plat the sections were indicated. That on this blank he traced, in red ink, the outside boundaries of the proposed consolidated district, embracing the five districts known as districts 21, 22, 23, 24, and 25, of Barry county. I find that the maps as prepared and posted by the superintendent were sufficient in form and in compliance with the statute. That the superintendent did not go into the proposed consolidated district for the purpose of interviewing the citizens and patrons of the school with regard thereto, but acted on information he then had and that conveyed in the petition presented to him. That, on the following day, May 28th, he went into the proposed consolidated district and posted eight notices of the school meeting to be held for the purpose of voting on the proposed consolidation, and that, on the next day, May 29th, he posted four additional notices of the time and place of said election. That on May 28th he posted in said proposed district four plats of the proposed district, hereinbefore referred to, and on the following day, May 29th, he posted two additional plats of said proposed district. That on June 12th, the meeting was called to order by the superintendent, and, in calling the same to order, he announced that he did not have a plat of the proposed district with him, but he further stated that he thought he could draw a plat of said proposed consolidated district on the blackboard if he was furnished chalk for that purpose. That some one in the audience made the remark that that was unnecessary, as the boundaries of the proposed district were understood and that further explanation by the drawing of the plat was unnecessary. That no dissent was made to this suggestion, and the meeting thereupon proceeded to organize, and did organize, as provided by law, and proceeded to vote on the question of organizing the said proposed district. That a hat, placed on a table in front of the chairman and secretary, was used as a ballot box, and that the voters were instructed by the chairman to pass by the ballot box in file and deposit their ballots. That this course was, in the main, pursued, but at times the file was not maintained and people other than those in line advanced and voted. I find that no confusion, however, existed, and, in the absence of the charge of fraud, I find that the election was conducted in all respects in substantial compliance with the law. That, thereafter, the vote was counted and announcement made that the vote stood 50 for the organization and 47 against the organization of said proposed district. That no dissent was made to this announcement, and no protest made by any of the parties present, and no charge of fraud made at that or any subsequent time. I find that the election was conducted in the manner prescribed by law.

"I further find that the chairman and secretary of the meeting certified the proceedings and result of the election to the county superintendent of schools, and that a copy of same was filed with such superintendent and with the county clerk. I also find that a copy of the original petition asking the county superintendent of schools to call an election, together with copy of the plat prepared by the superintendent, were filed with the county clerk of Barry county, as provided by law.

"I further find that the proposed new district comprised more than 12 square miles of territory, and that there were more than 200 children of school age in the proposed consolidated district.

"I further find that, after the vote on the organization, the meeting of June 12, 1913, proceeded to elect directors, as provided by statute, and that the respondents, with the exception of Mr. Potter, were the directors elected on June 12, 1913, and that the respondent Potter is now acting as a director of the district in the place of Mr. Ellis, one of the directors elected on June 12, 1913, who subsequently resigned.

"I further find that the relator is an assessed, taxpaying citizen of the district, with a child or children of school age, and, as such, is interested in the affairs of the school district in his territory.

"I further find that the relator was present and participating in the election held on June 12, 1913, and I further find that he was present and participating in an election held subsequently to vote on the question of a site for the consolidated school building, and that he also participated in an election held at the same time to vote on the question of issuing bonds for the purpose of building and school grounds. I further find that the question of site was settled at this election, but that the proposition to vote bonds was defeated at that time, and that the relator was not present and did not participate in a subsequent election held, at which bonds were declared carried. I find, as a matter of law, that he is not estopped by reason of his participating in the elections as herein set forth."

This finding fairly presents the facts of the case, although we shall,...