State v. Town of Mansfield

• Decision Date: 17 February 1903
• Citation: State v. Town of Mansfield, 99 Mo. App. 146, 72 S.W. 471 (Mo. App. 1903)
• Parties: STATE ex rel. JACKSON v. TOWN OF MANSFIELD et al.
• Court: Missouri Court of Appeals

72 S.W. 471

99 Mo. App. 146

STATE ex rel. JACKSON v.TOWN OF MANSFIELD et al.

Court of Appeals at St. Louis, Missouri.

February 17, 1903.

MUNICIPAL CORPORATIONS — INCORPORATION — COUNTY COURT — JURISDICTION — FRANCHISE — OUSTER — QUO WARRANTO — JUDGMENT — DISCRETION — APPEAL — REVIEW — LACHES.

1. Where, in quo warranto to set aside proceedings incorporating defendant as a city of the fourth class, on the ground that it had previously been incorporated as a village, and could not, therefore, be incorporated as a city by the county court, the court finds that the subsequent order incorporating the city was valid, and the evidence to show such previous incorporation as a village was both oral and meager, the judgment holding the subsequent proceedings valid would not be reversed on appeal.

2. An order of the county court for the incorporation of a town as a fourth-class city, though not conclusive in a proceeding by the state to test the legality of the corporation — the state being no party to the proceedings for incorporation — is nevertheless a judgment, and not a ministerial act.

3. Rev. St. 1889, art. 1, § 30, provides that, if a community is already incorporated as a city or town of some other class, it might become a city of the class to which its population entitled it by adoption of an ordinance therefor by a majority of the legal voters in the town, and, if the community has not previously been incorporated, it might petition the circuit court of the county where it was situate, on which an order of incorporation may be granted. Held, that the county court has no jurisdiction to incorporate a place as a city of any class if it has been previously organized as a town or city, but that such incorporation must be by vote of the inhabitants.

4. A proceeding by quo warranto to oust a municipality from its franchises, for illegality in proceedings for incorporation, brought by the state's attorney without leave of court, is within the discretion of the trial court, to be exercised after full hearing.

5. A municipality was organized as a city of the fourth class by decree of the county court, and acted as such for eight years; and, in quo warranto to oust it from its franchise for illegality in its incorporation, there was no evidence that a judgment in favor of relator could serve any useful purpose, but it might result in

great injury. Held, that the state was barred by laches from obtaining such relief.

Appeal from circuit court, Wright county; Argus Cox, Judge.

Quo warranto by the state, on relation of J. W. Jackson, prosecuting attorney, against the town of Mansfield and others.From a decree in favor of defendants, relator appeals.Affirmed.

Statement of the Case.

This is a quo warranto proceeding instituted at the relation of the state of Missouri, in the name of the prosecuting attorney of Wright county, to oust the defendants Crippen, McKain, and White from the offices, respectively, of mayor, marshal, and collector of the town of Mansfield, and to deprive said town of its rights, franchises, and privileges as a city of the fourth class, on the ground that it was illegally incorporated as such.The petition charges that said town, on the petition of two-thirds of its inhabitants, presented to the county court of Wright county, was, by an order of said court entered prior to February 13, 1893, incorporated as a village under the provisions of section 1666 of the Revised Statutes of 1889; that on the date mentioned a petition was presented to said county court which sought to have the corporate character of the town changed to that of a city of the fourth class, but that the proceedings to that end were void.The return alleges the town was incorporated as a city of the fourth class on the 7th day of February, 1893, by an order of the county court of Wright county on the petition of a majority of its then tax-paying citizens, and has ever since enjoyed the rights, privileges, and franchises of such a city; that the respondents are the officers.After denying the allegations of the petition, the return next pleads acquiescence and recognition by the state and public of the corporate individuality of the town of Mansfield as a city of the fourth class for 8½ years, and that because of laches the state should not be allowed to question the validity of its incorporation.The return also states the town has been sued as a city of the fourth class, and judgments rendered against it and paid; that justices of the peace have been appointed for it on the same theory; that its territory has been excluded from road districts; that it has levied taxes, enacted and enforced ordinances, improved streets, park, and a cemetery, regulated the speed of trains, created a board of health, and done other things within the powers of a city of the fourth class.Further, that, should the town be ousted of its franchises, all said acts would be rendered illegal, and future acts of the same kind prevented; that the public park, streets, and sidewalks could not be kept in repair, nor the speed of trains through the town be regulated, nor quarantine against disease established; it being averred that, at the time this action was instituted, two cases of smallpox had been quarantined in the town, which could not be cared for; and other matters and things were pleaded, of a similar tenor.A motion to strike out that portion of the answer setting up the plea of laches or estoppel was filed by appellant and overruled.The records of the county court of Wright county were admitted at the trial to have been consumed by fire February 25, 1897, including the record of any order of said county court incorporating the town of Mansfield as a village, made prior to that...