The State ex inf. Pulley v. Scott

• Decision Date: 16 March 1925
• Docket Number: 24257
• Citation: 270 S.W. 382,307 Mo. 250
• Parties: THE STATE ex inf. FRANK L. PULLEY, Prosecuting Attorney of Clinton County, ex rel. WILLIAM R. HARRISON et al., Appellants, v. JOHN B. SCOTT et al
• Court: Missouri Supreme Court

270 S.W. 382

307 Mo. 250

THE STATE ex inf. FRANK L. PULLEY, Prosecuting Attorney of Clinton County, ex rel. WILLIAM R. HARRISON et al., Appellants, v. JOHN B. SCOTT et al

No. 24257

Supreme Court of Missouri

March 16, 1925

Appeal from Clinton Circuit Court; Hon. A. M. Tibbels Judge.

Affirmed (in part) and REVERSED (in part).

John A Cross, Pross T. Cross and R. H. Musser for appellants.

(1) It being conceded that at the time of the attempted extension or consolidation of the three districts into one, one of the three, the Lathrop District, was a city school district with an enumeration of more than two hundred children of school age, the necessary jurisdictional facts were absent, and the acts forming the new district were null and void, and said district is not legally formed or existing, and the respondents have no right to act as directors thereof. Secs 11255, 11258, 11253, 11201, 11202, R. S. 1919; State ex rel. v. Clardy, 267 Mo. 371; State ex rel. v. Fry, 300 Mo. 541; State ex rel. v. Sweaney, 270 Mo. 685; State ex rel. v. McFarlin, 154 Mo.App. 411. (2) The law required, in any event, that the clerk of the Lathrop School District should give and post a legal notice of the petition, the holding of the election, etc., and the record discloses that no such notice was ever made or given by said Lathrop District clerk, and therefore all proceedings thereafter, including the alleged election, were null and void. Sec. 11201, R. S. 1919; 27 Cyc. 1118. (3) Relators, being resident assessed tax-paying citizens of the proposed district, are entitled to maintain this action under the law, and are neither guilty of laches nor subject to the doctrine of estoppel. Sec. 2066, R. S. 1919; 32 Cyc. 1437; State v. Rose, 84 Mo. 198; State v. McClain, 187 Mo. 409; State v. Long, 275 Mo. 181; State v. Small, 131 Mo.App. 480; State v. Hefferman, 243 Mo. 443; Nichols v. Bank, 55 Mo.App. 91; Wood v. Kansas City, 162 Mo. 311; Locke v. Bowman, 168 Mo.App. 130; 16 Cyc. 783, 811; 2 Herman on Estoppel, sec. 922; Merrill v. Shea, 30 F. 743; Merrill v. Tobin, 30 F. 738; State ex rel. v. Higan, 163 Mo. 53; State ex rel. v. McClain, 187 Mo. 409; State ex rel. v. Clardy, 267 Mo. 371.

W. S. Herndon and Daniel H. Frost for respondents.

(1) The proceedings in this case were not under Sec. 11252, R. S. 1919, providing for annexation to city or town schools, but under Sec. 10837, R. S. 1909 (Sec. 11201, R. S. 1919), providing for the change of boundary lines of school districts. Said Section 10837, by virtue of Sec. 10881, R. S. 1909, so far as it relates to change of boundary lines of school districts, applies to city or town school districts. This Section 10881 (Sec. 11253, R. S. 1919) is in very plain terms, and says "all provisions of Section 10881 (Sec. 11253) relating to the change of boundary lines of common school districts, . . . shall apply to town, city and consolidated districts," and has been so construed. State ex inf. v. Sweaney, 270 Mo. 691; School District v. McFarlin, 154 Mo.App. 418. (2) All the provisions of Section 11201 apply in this case, so publication of the notice in the Lathrop newspaper for the Lathrop District was all that was required and is a compliance with the provisions of said section. This section provides for posting of notices or publication for same length of time in all newspapers of the district. (3) Appellants throughout their brief insist that we have attempted to form a consolidated school district. It will be noticed that under Sections 11255 and 11258, there is no way to include a town with over two hundred children of school age in a consolidated district. But that does not prevent it from annexing all territory under the provisions of Section 11252. Or of accomplishing the same thing by changing its boundaries under Sections 11201 and 11253. (4) It is true that the object of all three of these districts was to change the boundaries of the city district so as to include both the others, so that all the districts might be mutually benefited. Appellants insist that we have formed a consolidated district, and they do that, because the law does not permit a city with two hundred children of school age to be included in a consolidated district, but we have never thought of the Lathrop School District as a consolidated district. It is purely a city school district as it was before, and is known as the School District of Lathrop, and not as a consolidated school district. (5) Appellant has no leg to stand upon. So manufactures one by insisting that their action is against and attacks the legality of the Consolidated School District of Lathrop, when there is no such school district. These proceedings were brought squarely under the provisions of Section 10837 (now Section 11201). The petitions filed asking for the election state that they are proceeding under that section, which section provides for the changing of boundary lines by the annexation of territory or otherwise. (6) While we maintain that the law was fully complied with by these school districts in making the change in boundaries of Lathrop School District, yet the principle of laches and acquiescence on the part of the State and its officers for a period of six years would forbid the legality of the elections being questioned at this time. State ex rel. v. Town of Mansfield, 99 Mo.App. 152; State ex rel. v. Town of Westport, 116 Mo. 582. Where a municipality has been recognized by court and officers of State for a number of years, the State is precluded from depriving it of its franchise. State ex rel. v. Town of Westport, 116 Mo. 592; State ex rel. v. City of Carterville, 183 S.W. 1093; State ex rel. v. Miller, 113 Mo.App. 668. (7) Quo warranto will not lie to oust the officers of a de facto corporation on the ground that the municipality is not legally incorporated, where the sole purpose is to test the validity of the incorporation. Such proceeding must be brought directly against the municipality. The action in this case was not brought against the school district at all and could not be maintained, as its sole purpose was to test validity of extension of boundary line. State ex rel. v. Hiff, 105 Mo.App. 363; State ex rel. v. Belleflower, 129 Mo.App. 146; Black v. Early, 208 Mo. 305; Franklin Avenue Church v. Board of Education, 75 Mo. 408; State ex rel. v. Men's Club, 178 Mo.App. 562. If action is not brought against corporation it is not binding on it and if the action is to test the right of a legal municipality to exercise authority over certain territory action should be brought directly against corporation. State ex inf. v. McClain, 187 Mo. 414; State ex inf. v. Fleming, 147 Mo. 1.

Lindsay, C. Seddon, C., concurs.

OPINION

LINDSAY

An information in the nature of a quo warranto was filed on June 4, 1921, in the Circuit Court of Clinton County, by the then prosecuting attorney of that county, by leave of court obtained, and at the relation of certain taxpayers and citizens of the school districts hereinafter mentioned, which, after alleging the existence, on April 3, 1917, of the School District of Lathrop and of Common School Districts Nos. 44 and 45, charged that respondents were "acting and using illegally the offices and franchises as school directors" of "Lathrop School District," and were claiming without any legal right the offices of "directors of School Districts Nos. 44 and 45, and of said School District of Lathrop," all in Clinton County, which offices it was charged were not warranted by law, but were usurped by respondents.

The information alleged that on April 3, 1917, the School District of Lathrop had within it more than two hundred children of school age, and that Districts Nos. 44 and 45 were duly organized and existing as common school districts. It was further alleged that on April 3, 1917, "at the annual school meeting in said three school districts, a proposition was wrongfully and illegally submitted to and adopted by the voters of said three districts, to change and extend the boundary lines of said School District of Lathrop so as to include therein all the territory and lands in Common School Districts Nos. 44 and 45, and thereby unlawfully and illegally consolidate said three districts in one district known as Lathrop School District." Although the information alleges that the proposition voted upon and adopted on April 3, 1917, was one to "change and extend the boundary lines of the School District of Lathrop so as to include therein" the lands and territory of Districts 44 and 45, the relators contend, and emphasize the contention, that what was then done was an attempt to form a consolidated school district, and apparently attached some significance to the fact that the School District of Lathrop is designated as "Lathrop School District" in the petition on which the elections were held. It is conceded that the School District of Lathrop had more than two hundred children of school age on April 3, 1917, and was a city district, Lathrop being a city of the fourth class.

The answer or return to the writ denied that the persons named as relators had such interest in the matters alleged as to make them proper parties to prosecute the action; admitted the submission and adoption of the proposition to extend boundary lines; denied that it was illegally submitted and adopted set forth the presentation of the petition signed by ten qualified voters of said three school districts, the causing of notice of the submission to be given in the three districts by posting in at least five public places in Districts 44 and 45, and publication in the only newspaper in the School District of Lathrop, for fifteen days prior to April 3, 1917, the date of said annual meetings; the casting of the vote of a majority of the qualified...