State v. Small

• Decision Date: 28 April 1908
• Citation: 109 S.W. 1079,131 Mo. App. 470
• Parties: STATE ex rel. WHITE et al. v. SMALL et al.
• Court: Missouri Court of Appeals

109 S.W. 1079

131 Mo. App. 470

STATE ex rel. WHITE et al. v. SMALL et al.

St. Louis Court of Appeals. Missouri.

April 28, 1908.

1. MUNICIPAL CORPORATIONS—INCORPORATION —STATUTES — CONSTRUCTION — INCLUDING FARMING LANDS—"COMMONS."

The word "commons," in Rev. St. 1889, § 1666 (Rev. St. 1899, § 6004 [3 Ann. St. 1906, p. 3032]), providing for the incorporation of towns and villages on petition of over two-thirds of the inhabitants, setting forth the metes and bounds of their village and commons, means public grounds belonging or appurtenant to the town or village, and not farms or agricultural lands in the vicinity.

2. SAME.

Though a county court has no authority to incorporate farming lands in cities or towns, yet lands used for farming purposes alone might be so surrounded by lands used for town purposes as to render it necessary to include tracts of farming lands within the boundaries of the town, as otherwise a community would be prevented from incorporating by the fact that some of its inhabitants used property within the proposed town district for farming purposes, whereas the general character and fitness of the incorporated district as a whole, and not the use for which a small fraction of it might be employed, must determine the authority of the county court to incorporate it as such.

3. SAME.

Rev. St. 1889, § 1666 (Rev. St. 1899, § 6004 [3 Ann. St. 1906, p. 3032]), provides that upon presentation by over two-thirds of the inhabitants of a town or village to the county court of the county wherein the town or village is of a petition setting forth the metes and bounds of their village and commons, and praying that they be incorporated, the county court might declare such town or village incorporated, designating in the order the metes and bounds thereof. Held, that such provision only conferred power on the county court to incorporate towns and villages and their commons, and hence did not authorize the court to incorporate as a village a section containing 600 acres of land, of which only 30 or 40 were then occupied as a village; the remainder being devoted exclusively to agricultural purposes.

4. SAME—ORDER INCORPORATING—PARTIAL INVALIDITY—EFFECT.

The inclusion in an order of the county court incorporating a town or village of farm lands as petitioned for in the petition for the order renders the order void in toto, since it could not be known whether the petitioners for the order to incorporate would have desired the order if it embraced only lands covered by the village proper, or whether the county court would have been willing to incorporate such lands and no more.

5. QUO WARRANTO—PARTIES—RESPONDENTS.

Where, in a quo warranto proceeding or one in the nature of quo warranto, the existence of a municipality is denied, the proper respondents are the usurping officers who wield municipal powers, and not the municipality, as, by making it a party, its existence would be implied, which is the fact denied.

6. SAME—RELATORS.

Persons who are farmers and taxpayers within an illegally incorporated village have a sufficient special interest in having its incorporation declared invalid to maintain quo warranto to determine the existence of the village against the persons assuming to act as its officers.

7. SAME—LACHES.

An order incorporating a village was made in 1897, but no attempt to organize a municipal government was made until 1902, and until 1905 taxes were not levied against farm lands included within the limits of the village as incorporated. As soon as the village authorities undertook to treat the farm lands as part of the village and subject them to municipal burdens, the owners of the land brought quo warranto against the persons, assuming to act as officers of the village to determine its existence. Held, that the owners were not guilty of laches precluding them from maintaining their suit.

8. APPEAL—DETERMINATION—CHANGE OF LAW —STATUTORY PROVISIONS — RETROSPECTIVE OPERATION.

The act of 1907 (Laws 1907, p. 109), authorizing county courts in their discretion to exclude farming lands from the territory of a village on the petition of a majority of the taxpayers, does not affect an appeal in quo warranto proceedings to declare an order incorporating a village void for including farm lands, in which proceedings a judgment was rendered in the lower court before the passage of the act, and especially is this so where the order of incorporation was void from the first, since it might be impossible to procure the requisite petition, and, if procured, the county court in its discretion might choose not to exclude the farm lands.

Bland, P. J., dissents.

Appeal from Circuit Court, Mississippi County; Henry C. Riley, Judge.

Proceeding in nature of quo warranto by the state, on the relation of Jesse S. White and others, against W. E. Small and others, charging defendants with usurping and exercising the duties of trustees of the village of Anniston. From a judgment for relators, defendants appeal. Affirmed.

Russell & Deal, for appellants. O. W. Joslyn and Boone & Lee, for respondents.

GOODE, J.

This is a proceeding in the nature of quo warranto, charging the defendants with usurping and exercising the rights and duties of the trustees of the village of Anniston, in Mississippi county, and in the capacity of trustees enacting ordinances, levying taxes, and prescribing police regulations over the land and property of the relators. The information was filed by the prosecuting attorney of Mississippi county at the relation of Jesse S. White, Homer Lynn, and J. L. Busby. In addition to the charge of usurpation against defendants, the information avers the village of Anniston never was incorporated legally and had no corporate existence; that the lands of relators are, and ever since the pretended incorporation of the village in 1897 have been, inclosed farms used for agricultural purposes exclusively; that the order of the county court attempting to incorporate said village embraced the entire area of section 9, township 25, range 16, within the boundaries of the village, though the village proper contained but 40 acres and the remaining 600 thereof were agricultural lands then and now used and occupied as farms, not platted, and constituting no part of commons appurtenant to the village. In their return to the writ the defendants averred facts to show they were eligible for village trustees, and were elected trustees of the village of Anniston in April, 1906, and have qualified as such. They aver the county court of Mississippi county on March 3, 1897, pursuant to a petition of two-thirds of the taxable inhabitants of the town of Anniston, incorporated said town, designating in the order of incorporation its metes and bounds so as to embrace all of said section 9. Since said date Anniston has been a body politic and corporate, and its trustees have passed by-laws and ordinances. It is further averred as follows: The sole purpose of the information is to have the order of the county court incorporating Anniston declared void, and therefore the village itself is a necessary party to the proceeding. Since the incorporation a large part of the land within the boundaries, to wit, 90 acres, has been laid off and platted as an addition to the town, and streets and alleys have been opened therein, and lots sold to purchasers. The state of Missouri and the public have recognized Anniston as a body politic for more than nine years, and the state has levied and collected taxes on lots therein. The territory within its limits has been excluded from road districts, and the town has levied taxes, enforced ordinances, improved streets and sidewalks, and done many other acts within the charter powers of towns and villages, and, should the town be ousted of its franchises, all said acts would be rendered illegal, and future acts of the same kind prevented. It is further averred two of the three relators have no lands used exclusively for agricultural purposes in the town limits, and therefore have no interest in this proceeding, and the other relator, Busby, purchased the land he uses for agricultural purposes after the town was incorporated, knowing the land lay within the corporate limits. A reply was filed, putting in issue the averments of the answer regarding the acquiescence of the state and public in the corporate existence of the town, reasserting the invalidity of the order for its incorporation as a body politic, and averring Anniston did not attempt to exercise corporate franchises over the lands of relators until 1906, when relators protested against such exercise. It is alleged the village has acquired no property, contracted no debts, made no improvements other than to work the streets and alleys of the platted district, and therefore no injustice will be done by annulling the order of the county court for its incorporation. The testimony shows the hamlet of Anniston at the date of the order to incorporate it had from 400 to 500 inhabitants and covered 35 acres of land in section 9. A petition was presented to the county court for the incorporation of the entire section under the name "Inhabitants of the Village of Anniston," and this was done by an order entered March 3, 1897. On said date 600 acres or more of the land in the section were devoted to agricultural purposes, and composed of farms with residences and other farm buildings on them here and there. In April, 1904, seven years after the attempt to incorporate, an addition to the town covering 80 acres was platted, and a few houses have been built on a small portion of this addition. Outside the area covered by it and the area covered by the original hamlet the entire section is yet in farms; that is to say, 520 acres or more are farm lands. There are four miles of country roads running through the section, and in all respects it is like any other farming country, consisting of cultivated fields, meadows, and forests. These...