State v. Sweaney

• Citation: 270 Mo. 685,195 S.W. 714
• Parties: STATE ex inf. CONKLING, Pros. Atty., ex rel. HENDRICKS et al. v. SWEANEY et al.
• Decision Date: 22 May 1917
• Court: Missouri Supreme Court

195 S.W. 714

270 Mo. 685

STATE ex inf. CONKLING, Pros. Atty., ex rel. HENDRICKS et al. v. SWEANEY et al.

Supreme Court of Missouri. In Banc.

May 22, 1917.

Error to Circuit Court, Jackson County; William O. Thomas, Judge.

Proceeding by quo warranto by the State of Missouri, at the information of Virgil Conkling, Prosecuting Attorney of Jackson County, at the relation of John C. Hendricks and others, against John M. Sweaney and others. From a judgment for relators, defendants bring error. Affirmed.

This is a proceeding by quo warranto, instituted in the circuit court of Jackson county by the then prosecuting attorney of said county, at the relation of the directors of the school district of Dallas, situated in said county, against the therein named defendants, whereby it is sought to oust the defendants from acting as school directors over territory which it is claimed by relators is embraced within the school district of Dallas. The circuit court entered judgment in favor of the relators, and issued a writ of ouster against the defendants. Thereafter, and in due time, the defendants brought the suit to this court by writ of error. The facts necessary to a determination of the issues involved may be stated substantially as follows:

The school district of Dallas is what is known as a town or village school district, and was so organized in 1903, and the legality of said organization was affirmed by this court in the case of State ex rel. v. Gill, 190 Mo. 79, 88 S. W. 628. The relators now comprise the board of directors of said school district as originally organized, unless it should be determined in this proceeding that the original school district of Dallas had, prior to the institution of this suit, been divided into two school districts. In the spring of 1912 a portion of the inhabitants of said school district, proceeding under and by virtue of section 10837, R. S. 1909, undertook to divide the school district of Dallas into two separate districts. It appears that all of the matters required by said section were complied with, and that the school district of Dallas was divided into two districts, if there was legal authority so to do. The defendants, plaintiffs in error, are the directors of the new district attempted to be carved out of the old district. It is the contention of the relators, defendants in error, that there is no provision of law for dividing a town, city, or consolidated school district into two districts, and that, therefore, the whole proceeding was void, and that the defendants were without authority to act as school directors of any portion of said territory. The contention of the defendants, plaintiffs in error, is that under section 10881, R. S. 1909, authority is to be found for the division which was made.

Smart & Strother, of Kansas City, for plaintiffs in error. Sebree, Conrad & Wendorff, of Kansas City, for defendants in error.

WILLIAMS, J.

I. Before proceeding with the merits of the appeal, there is one preliminary question that must be determined. Defendants in error contend that the bill of exceptions was not filed within time, and that, therefore, our review must be limited to the record proper. The facts underlying this point are as follows: The exceptions, which comprise the bill of exceptions, were taken at the May term, 1912, of said circuit court, which, of course, was after the act of 1911 (Laws of 1911, pp. 139, 140) relating to filing of bills of exception became operative.

During the said term of court the trial court did not make or enter of record an order granting leave to file the bill of exceptions thereafter. At the November term, 1914, plaintiffs in error presented their bill of exceptions, and the trial court by order entered of record duly allowed the same, and ordered the same to be filed and made a part of the record in the case. This, in point of time, was prior to the time the parties were required, under our rules, to serve their abstract of record. Defendants in error, however, insist that since the court, during the term at which the exceptions were taken, did not make an order granting leave to thereafter file the bill of exceptions, the same was, therefore, filed without authority. We are unable to agree with this contention. We are of the opinion that the bill of exceptions was duly allowed and filed within proper time, as authorized by the act of 1911, supra.

That said act contains much surplusage becomes apparent at a mere glance. It should be noted that all through the act the conjunction "or" is used, and the permissive term "may be filed" is employed, and not the imperative "shall be filed." If a law should be passed by the Legislature, saying that an act "may be done within 5, 10, 20, or 30 days" from a given time, could it be properly said that the act had to be done within 5 days? Would not the proper construction be that the act could be done at any time within 30 days, and that the other portions of the law likewise giving permission to do the act in a shorter period were surplusage. That is very much the situation with the act of 1911. It provides that bills of exception "may be filed" (1) during the term of the court at which it is taken, or within such time thereafter as the court may by order entered of record allow, which time may be extended by the court or judge in vacation for good cause shown; (2) or within the time the parties to the suit or their attorneys of record may in writing agree upon; (3) (or) at any time before the appellant shall be required by the rules of the appellate courts to serve his abstract of record: Provided that, if for any reason the bill of exceptions cannot be filed within that time, then upon proper certificate from the circuit judge to the appellate court the appellate court shall continue or reset the case a sufficient time to allow the bill of exceptions to be filed, and that the bill of exceptions may then be filed at any time before the rules of the appellate court require the abstract to be served by reason of the resetting. The provisions (1) and (2) above were formerly contained in section 2029, R. S. 1909. That section was expressly repealed by the act of 1911, and by said act re-enacted with the portion (3) above, together with some rather indefinite directions as to what action the appellate courts should take in affirming cases, and an emergency clause putting the act into effect forthwith. To undertake to elucidate the legislative intent to such degrees of refinement as would give life to every part of the act would appear to be an impossibility. Why the act is in its present form only facts dehors the record could possibly explain.

In the case at bar the right to file a bill of exceptions accrued after the act of 1911 went into effect, and we, therefore, have not before us the situation involved in the case of Craig v. Railroad, 248 Mo. 270, 154 S. W. 77 (later followed in the cases of Bridge Company v. Corrigan, 251 Mo. 667, 158 S. W. 39, and Mitchell v. Sparlin, 255 Mo. 124, 164 S. W. 205) wherein it was held that the enlarged rights granted by the act of 1911 did not apply to those cases arising prior thereto in which the right to file a bill of exceptions had terminated before the act became operative. In the case of State v. Rogers, 253 Mo. 399, 161 S. W. 770 (a case which arose after the act of 1911 was passed), in construing this act, it was held that a bill of exceptions filed after the time granted by the court had expired was filed in time under the provisions of the act of 1911, if it were filed before the appellant was required by the rules of the appellate court to serve his abstract of record. We are of the opinion that that case was correctly ruled.

If, then, a bill of exceptions can be said to be properly filed after the expiration of the time granted by the trial court, why could not the same bill of exceptions be so filed on the same date, although no extension of time...