State v. Town of Bellflower

• Citation: 108 S.W. 117,129 Mo. App. 138
• Parties: STATE ex inf. ROSENBERGER v. TOWN OF BELLFLOWER et al.
• Decision Date: 18 February 1908
• Court: Court of Appeal of Missouri (US)

108 S.W. 117

129 Mo. App. 138

STATE ex inf. ROSENBERGER v. TOWN OF BELLFLOWER et al.

St. Louis Court of Appeals. Missouri.

February 18, 1908.

Rehearing Denied March 3, 1908.

1. MUNICIPAL CORPORATIONS — CREATION — STATUTES — JURISDICTION OF COURTS.

Rev. St. 1899, § 6004 [Ann. St. 1906, p. 3032], provides that when two-thirds of the taxable inhabitants of any village shall present a petition to the county court, setting forth the metes and bounds of the village and commons, and praying that they may be incorporated, the county court may declare the village incorporated, etc. Land was platted for a town site. Thereafter another tract was platted for another town site. Between the two tracts was a piece of land containing 39 acres used for farm purposes. Thereafter the county court incorporated the platted lands, including the land between the two tracts, and including 600 acres of farm lands surrounding the towns. Held, that the court exceeded its jurisdiction by including within the boundaries the 600 acres of farm lands, though the incorporation was not defeated by including therein the 39-acre tract, and the judgment of incorporation was subject to collateral attack.

2. SAME — JUDGMENT OF INCORPORATION — CONCLUSIVENESS.

The judgment of the county court incorporating a town is conclusive, and cannot be disturbed except for fraud, where the court acted within its jurisdiction; but, when it had no jurisdiction to render the judgment, or, having jurisdiction of the subject-matter, rendered a judgment in excess of its jurisdiction, the judgment is void and subject to collateral attack.

3. QUO WARRANTO — GROUNDS — EXERCISE OF POWER BY MUNICIPALITY.

The state, by its Attorney General, or by the prosecuting attorney of the county in which

[108 S.W. 118]

a town is situated, may attack the validity of the incorporation of the town by a proceeding in the nature of quo warranto.

4. JUDGMENT — CONCLUSIVENESS — DETERMINATION OF CAUSE ON MERITS — CHANGE OF PARTIES.

A judgment dismissing an information in the nature of quo warranto filed by the prosecuting attorney of a county against the trustees of a town, attacking the validity of the incorporation of the town, rendered on the ground that the town was not a party defendant, is not a bar to a subsequent information against the town and its trustees; the parties not being identical, and the merits not having been adjudicated.

Appeal from Circuit Court, Montgomery County; Jas. D. Barnett, Judge.

Information in the nature of quo warranto by the state, on the information of E. P. Rosenberger, against the town of Bellflower and others. From a judgment for defendants, relator appeals. Reversed and remanded.

E. P. Rosenberger, pro se. W. B. M. Cook, for respondents.

BLAND, P. J.

In the year 1892, 40 acres of land lying in the eastern part of Montgomery county was laid off in lots and blocks by the owner, platted as a town site, and named Bellflower. In the year 1894 an adjoining 40-acre tract was laid off in lots and blocks and platted as an addition to the town. In 1903 and 1904 the Chicago, Burlington & Quincy Railroad Company built a railroad touching the northwest corner of the town, and running thence in a northeasterly direction, leaving the whole of the town on the south side of the railroad track. H. B. Scott acquired a tract of land on the north side of the railroad, and adjacent to the town. He subdivided a portion of this tract into lots and blocks, platted the same, and christened it New Bellflower. He so laid off his town as to leave a wedge-shaped piece of land containing 39 acres between the towns of Bellflower and New Bellflower. Both towns have built up, and are in a prosperous and growing condition. They are connected by two roads, an old county road on the east, now called "Main street" by both towns, and by another road west of the railroad depot. On December 19, 1904, two-thirds of the inhabitants of both towns presented a petition to the county court asking that the two towns be incorporated as one under the name of the town of Bellflower. The territory which the petition asked to be incorporated is described as follows: "Commencing at the northeast corner of the southeast quarter of the southeast quarter of section 15, township 49, range 4 west; thence west, to the northwest corner of the east half of the southwest quarter of the southeast quarter of section 16, township 49, range 4 west; thence south, to the southwest corner of the east half of the southwest quarter of the southeast quarter of section 21, township 49, range 4 west; thence east, to the southeast corner of the southeast quarter of section 22, township 49, range 4 west; thence north, along the section line to the place of beginning, and all lying and being in Montgomery county, Missouri." This territory includes not only all the land laid off in lots and blocks in both towns, but also over 600 acres of farm land surrounding and adjoining the towns, and also the 39-acre wedge-shaped tract lying between the two towns. The county court heard the petition on March 8, 1905, granted the prayer of the petitioners, entered a judgment incorporating the territory described into a village, and appointed five inhabitants of the village as trustees of the municipality to hold office until their successors should be duly elected and qualified at the annual election (for town officers) to be held on Tuesday, April 5, 1905. The appointees entered upon the duties of their offices, and the village has continued to elect officers and exercise its charter powers as an incorporated village to the present time. This proceeding is by information in the nature of quo warranto to disincorporate the town and oust defendants from their offices as trustees thereof. There is no allegation in the information of fraud or collusion on the part of the county court, or that any fraud or unfair means was practiced upon the court by the petitioners for the incorporation. The circuit court heard the cause and rendered judgment for defendants. Relator's sole contention for a reversal of the judgment is that the proceedings in the county court were "void and illegal and of no force and effect, because the petitioners therein sought to incorporate within the limits of the territory therein described six hundred and ninety (690) acres of land used exclusively for farming purposes and for pastures, and sought to incorporate eleven hundred (1,100) acres of land into a village. Because the said county court was without jurisdiction to grant the relief prayed for, because the petitioners therein sought to incorporate within the borders of the town of Bellflower, and within the territory described in the petition, a separate and distinct town known, platted and designated as the town of `New Bellflower,' said town of New Bellflower being a separate and distinct...