State v. Stanwood, 27321.

• Court: Court of Appeal of Missouri (US)
• Citation: 208 S.W.2d 291
• Docket Number: No. 27321.,27321.
• Parties: STATE on Inf. of WALLACH, Pros. Atty. ex rel. H. B. DEAL & CO., Inc., v. STANWOOD et al.
• Decision Date: 20 January 1948

208 S.W.2d 291 STATE on Inf. of WALLACH, Pros. Atty. ex rel. H. B. DEAL & CO., Inc.,
v.
STANWOOD et al. No. 27321. St. Louis Court of Appeals. Missouri. January 20, 1948. On Motion for Rehearing or to Transfer to Supreme Court Denied February 17, 1948.

[208 S.W.2d 293]

Appeal from Circuit Court, St. Louis County; Fred E. Mueller, Judge.

"Not to be reported in State Reports."

Quo warranto proceeding by the State of Missouri, at the information of Stanley Wallach, Prosecuting Attorney, at the relation of H. B. Deal & Company, Inc., a corporation, against C. Lloyd Stanwood, and others, trustees; Helen Thayer, treasurer; Margaret Maul, Clerk; Harry G. Wedler, Marshal; and others, Zoning Commissioners; and Jesse R. Vertreex, Building Commissioner of the Village of Warson Woods, to have the incorporation of the Village of Warson Woods held void and to oust the respondents from their respective offices. From the judgment, plaintiffs appeal.

Affirmed and remanded.

Leo F. Laughren, of St. Louis, for appellants.

John L. Gilmore and Raymond F. McNally, Jr., both of St. Louis, for respondents.

WOLFE, Commissioner.

This is an action in quo warranto to have the incorporation of the Village of Warson Woods held void and to oust the respondents from their respective offices. The court found for the defendants below. The defendants, respondents, have been substituted in this court by agreement, by the officials elected to village offices since the appeal of this case.

The petition for quo warranto is brought by the prosecuting attorney of St. Louis County at the relation of H. B. Deal & Co., Inc., a corporation. It alleges that all of the defendants are exercising the function of officers of the "pretended" Village of Warson Woods, and that no such village exists by reason of certain alleged defects in its attempted organization. It is alleged that fourteen of thirty-three petitioners for the incorporation of the village were not residents; that no village in fact existed; that the territory embraced was farm land; that there is an error in the description of the territory proposed to be covered; that no evidence of the genuineness of the signatures of the petition was taken by the county court; that the action of the petitioners and the court was fraudulent; and that the relator desires to develop some of the land in a Veteran's Building project but is precluded from so doing by an ordinance of the "pretended" village. There are further allegations to the effect that certain village functions have never been carried out and that it has no bonded indebtedness.

Defendants admit an error in the description of the territory embracing the village. They admit that they are the officers of the village and assert that the village existed and was properly incorporated on a petition bearing the signatures of thirty-four persons, and after other averments in the answer they deny some of the allegations in the plaintiff's petition and set up a plea of res judicata and assert laches.

The village involved in this litigation was originally called the Village of Royal Oak but later the name was changed to Warson Woods and for the sake of clarity the latter name by which it is now known will be used.

The evidence discloses that in the month of July, 1936, the area that now comprises the village consisted of 348.5 acres extending westwardly along Manchester Road in St. Louis County, and was bounded on all sides by incorporated areas. It was traversed by three streets running in a general north and south direction. The residents of the village lived in the houses and other living quarters throughout the area, and there was within it a gas station, a vegetable stand, a garage, a tourist camp, a riding

208 S.W.2d 294

stable, and two dairies. Some of the land was wooded and some of it was used for pasturing cows and some for truck gardening.

A petition for the incorporation of the village was signed by all but two or three of the property owners of the land embraced within the tract and was filed in the County Court on July 3, 1936. Twelve of the signers were not residents of the village. Two of the judges inspected the area after the petition was filed and set the matter for hearing on the 15th of July, 1936. Several petitioners in the company of their attorney attended court on that day and the matter was called and the petition presented to the court. None of the witnesses testifying professed to have a clear recollection of what transpired in the court but they all generally were of the opinion that the court asked if there were any objectors to the petition, and none being present the petition was granted without the taking of any testimony. After July 15, 1936, the village started to function as such and it has continued to do so. It has levied taxes each year since it was incorporated. It has passed ordinances, resurfaced streets, procured the installation of fire hydrants, put up street signs and safety signs, and each year elected its officials.

In February, 1946, H. B. Deal & Co. purchased property within the village and at its relation this suit was brought in October, 1946. Upon these pleadings and evidence the court found for the defendants and the relator appealed.

At the time the inhabitants of Warson Woods set about to incorporate there was in effect section 7091, Mo.R.S. 1929, now section 7242, Mo.R.S.1939, Mo. R.S.A., which provided in substance that whenever two-thirds of the taxable inhabitants of a town or village desired to incorporate they could petition the county court, and that if the court was satisfied that two-thirds of the taxable inhabitants had signed the petition for incorporation and that the petition was reasonable the village could be declared incorporated and its boundaries designated. The residents of the village sought to follow this relatively simple procedure. But the first assignment of error asserts that the village was never legally incorporated because the county court failed to judicially ascertain that two-thirds of the taxable inhabitants had signed the petition or that a village in fact existed. The words of the statute as to what the court shall do upon presentation of a petition of this nature are "the court shall be satisfied" as to the averments, and it is maintained here that such words require a judicial determination of facts based upon evidence. Our courts have held that while some of the acts of the county court are administrative and not judicial in nature this act, that they are required to perform in granting the incorporation of a village, is a judicial act and when it is performed it is a judgment. In re City of Uniondale, 285 Mo. 143, 225 S.W. 985; In re City of Berkeley, Mo.App., 155 S.W.2d 138. Since this is a judgment, when properly tested, it must rest upon some proof that enabled the court to satisfy itself that the petition was true. As to the existence of the village the court determined this by going over the territory covered after the petition was filed, and while such procedure may lack the formality of introducing plats of the territory in evidence it obviously presents to the court a very clear understanding of the physical facts sufficient to "satisfy" it upon that point. As to the determination by the court of the validity and numerical sufficiency of the signers of the petition we have only the recollection of those who were present in the court, including one of the judges, testifying about something that took place ten years before, and although their memory is admitted by them to be dimmed by the lapse of time they are all more or less agreed that no testimony was taken by the county court. In the case of State...