The State ex inf. Barrett v. Clements

• Decision Date: 18 September 1924
• Docket Number: 24935
• Citation: 264 S.W. 984,305 Mo. 297
• Parties: THE STATE ex inf. JESSE W. BARRETT, Attorney-General, ex rel. FRANK NEWMAN et al., v. B. M. CLEMENTS et al
• Court: Missouri Supreme Court

264 S.W. 984

305 Mo. 297

THE STATE ex inf. JESSE W. BARRETT, Attorney-General, ex rel. FRANK NEWMAN et al., v. B. M. CLEMENTS et al

No. 24935

Supreme Court of Missouri

September 18, 1924

Motion for Rehearing Denied September 18, 1924.

Preliminary rule discharged.

W F. Zumbrunn, W. B. Brown and Alan F. Wherritt for relators.

James E. Simrall, Martin E. Lawson and Francis G Hale for respondents.

(1) The real issue in this case is the existence or non-existence of the common school districts of Faubian, Big Shoal and Englewood. In effect, the charge is not that respondents intruded into offices, but rather that they usurped franchises -- no corporations, and consequently no corporate offices, existing. State ex rel. Read v. Weatherby, 45 Mo. 17. (2) The evidence produced and the admissions made by relators cast upon them the burden of proof and the necessity for assuming the laboring oar in overcoming the presumption of regularity of the minutes of the dissolution meeting and of the proceedings which they evidence. State ex rel. v. Kupferle, 44 Mo. 154; State ex inf. v Heffernan, 243 Mo. 442; Windes v. Nelson, 159 Mo. 51. (3) The minutes of the dissolution meeting, being the only proper and necessary returns of the proceedings and results of the meeting, make at least a prima-facie showing as to the result of the voting, and until this prima-facie showing is overcome by evidence, it must stand. Hartwell v. Parks, 240 Mo. 537; Saule v. Thelander, 31 Minn. 227; 35 Cyc. 877; State ex rel. v. Eden, 54 Mo.App. 31; Wigmore on Evidence (2 Ed.) sec. 2534; 20 C. J. 238. (4) The law presumes, at least in the absence of evidence to the contrary, that the duly elected officials of the dissolution meeting acted honestly and faithfully in the discharge of their duties, and that the minutes of the meeting correctly show the result thereof. Chlanda v. Transit Co., 213 Mo. 244; Hartwell v. Parks, 249 Mo. 537; Windes v. Nelson, 159 Mo. 51; State ex inf. v. Heffernan, 243 Mo. 442; Gass v. Evans, 244 Mo. 329; 20 C. J. 240. (5) The law further presumes, in the absence of evidence to the contrary, that all persons voting at the dissolution meeting were qualified to vote in that meeting. Gumm v. Hubbard, 97 Mo. 311; Gass v. Evans, 244 Mo. 329; Windes v. Nelson, 159 Mo. 51; 20 C. J. 239, note, 55; State v. Binder, 38 Mo. 451. (6) The onus of showing that those who voted were not qualified voters is on relators. South Co. v. Combs, 53 Mo.App. 298; State v. Hudson, 86 Mo.App. 501; Gilliland v. Railroad, 19 Mo.App. 411; Appleman v. Sporting Goods Co., 64 Mo.App. 71; Windes v. Nelson, 159 Mo. 51; Gass v. Evans, 244 Mo. 329. (7) A taxpayer is one who owns real or personal property on which he regularly pays taxes. It is not sufficient to show merely that at one time or another he was assessed. 37 Cyc. 1597; Thompson v. Newtown, 21 N.H. 595; State ex inf. Sutton v. Fasse, 189 Mo. 532.

David E. Blair, J. Graves, C. J., James T. Blair, Walker and Ragland, JJ., concur; White, J., absent; Woodson, J., dissents in a separate opinion.

OPINION

BLAIR

This is an original proceeding in the nature of quo warranto whereby relators seek to oust respondents from their alleged pretended offices as directors of three common school districts in Clay County. Said districts are alleged to be comprised within and to be part of Consolidated School District No. 1 of Clay County, notwithstanding an alleged dissolution of such consolidated school district. Our writ to show cause issued, accompanied by our injunctive order restraining respondents in certain particulars not now important. Service of our writ was accepted by counsel for respondents, and their appearances entered in this court.

The common school districts of Clay County included in the consolidated district prior to May 3, 1923, were Faubian No. 51, Big Shoal No. 65 (63), Englewood No. 64, Linden No. 63 (?) and Fairview No. 50. The respondents claim to be directors of Faubian, Big Shoal and Englewood common school districts, organized since such alleged dissolution of the consolidated district. Big Shoal district is referred to in the record both as No. 65 and No. 63, but that is of no importance now.

Separate answers and returns were filed by respondents. Relators' replies thereto were general denials. An issue of fact was thus raised, and Hon. Nick T. Cave, of the Callaway County Bar, was appointed by this court as its commissioner to take the testimony and report to the court. He has filed his report, and a complete transcript of the testimony taken by him.

The information and the answers and returns are quite lengthy. We are saved the necessity of setting out even the substance thereof, because of admissions made by counsel. The sole question for decision is whether or not Consolidated School District No. 1 of Clay County was legally dissolved or disorganized on May 3, 1923. The transcript contains the following statement of an agreement by counsel, to-wit:

"Mr. Hale: For the purpose of the record respondents would like for it to show that counsel for relators and respondents agree, that the dissolution election held in Consolidated School District No. 1 in Clay County, Missouri, at Linden in that district, on May 3, 1923, was regularly called in the manner and by the means provided by statutes, and that thereafter the several elections in Faubian District No. 51, in Big Shoal District No. 63 and in Englewood District No. 64, were all three called for re-organization purposes as set out in respondents' return, were all duly held, and that if the proposition to dissolve Consolidated School District No. 1 duly carried at the election on May 3, 1923, then said school districts, Faubian, Big Shoal and Englewood, were and are duly organized common school districts, and respondents herein are the duly elected, qualified and acting directors of said common school districts.

"Mr. Wherritt: Relators admit that the foregoing statement of facts is correct, and that if Consolidated School District No. 1 of Clay County, Missouri, was legally dissolved on May 3, 1923, the respondents in this cause of action are the duly elected, qualified and acting directors of said common school districts."

Other similar admissions appear in the transcript, but the foregoing is sufficient in scope for our purpose. Such admissions make it unnecessary for us to consider the various allegations of fraud, bad faith and force made against respondents by relators, or the sufficiency of any of the preliminary proceedings preceding the election on May 3, 1923, itself, or any of the subsequent proceedings, incident to the organization of the present Faubian, Big Shoal and Englewood common school districts, or the regularity of the election of respondents as directors thereof.

We digress to say that it is apparent that the present lawsuit is by no means the first litigation arising since the organization of said consolidated school district. The organization itself was attacked by some of the present respondents. [See State ex inf. Simrall ex rel. Benjamin M. Clements v. Clardy, 267 Mo. 371.] The information in the case at bar alleges the pendency and final disposition of other suits. The various lawsuits indicate most serious factional differences among the residents of the consolidated district. Such differences have no bearing upon the question here at issue, but they shed an interesting sidelight upon the case.

The only question left in the case, in view of the admissions, is this: Did two-thirds of the resident voters and taxpayers of such consolidated school district vote to dissolve such district? If they did, the lawsuit is ended in favor of respondents. If they did not so vote, the consolidated district is still in existence, organization of the common school districts was wholly unauthorized and a mere nullity, there are no offices of directors of such districts and respondents should be ousted from their pretended offices.

The statute governing disorganization or dissolution of consolidated school districts is Section 11242, Revised Statutes 1919, and reads as follows:

"Any town, city or consolidated school district heretofore organized under the laws of this State, or which may be hereafter organized, shall be privileged to disorganize or abolish such organization by a vote of the resident voters and taxpayers of such school district, first giving fifteen days' notice, which notice shall be signed by at least ten qualified resident voters and taxpayers of such town, city or consolidated school district; and there shall be five notices put up in five public places in said school district. Such notices shall recite therein that there will be a public meeting of the resident voters and taxpayers of said school district at the schoolhouse in said school district, and at said meeting, if two-thirds of the resident voters and taxpayers of such school district shall vote to dissolve any such town, city or consolidated school district, then from and after that date the said town, city or consolidated school district shall be dissolved, and the same territory included in said school district may be organized into a common school district under Article III of this chapter."

Admittedly the procedural steps outlined in the statute were duly and properly taken. The sole question is whether two-thirds of the resident voters and taxpayers of such consolidated school district voted at said meeting to dissolve said consolidated district.

The parties are in agreement (and such is our view), that the statute requires that two-thirds of all the taxpaying voters residing in the consolidated district, vote for such disorganization, and that it is not sufficient that two-thirds of those present at the meeting and having such...