The State ex inf. McAllister v. Bird
| Decision Date | 09 October 1922 |
| Citation | 244 S.W. 938,295 Mo. 344 |
| Parties | THE STATE ex inf. FRANK W. McALLISTER, Attorney-General, ex rel. A. V. LINCOLN et al., Appellants, v. B. A. BIRD et al |
| Court | Missouri Supreme Court |
Appeal from DeKalb Circuit Court. -- Hon. Alonzo D. Burnes, Judge.
Affirmed.
Hewitt & Hewitt for appellants.
(1) The burden was upon the respondents to show a valid election that is: (a) A valid petition filed with the county superintendent; (b) that the number of notices required by the statutes were posted for the full time required; (c) that the number of plats required by the statutes were posted for the full time, and that the boundaries were identically the same, and that said plats were signed by the county superintendent. Laws 1913 and 1917; State ex rel. Harris v. McCann, 88 Mo. 390; State ex rel. v. Powles, 136 Mo. 380; State ex rel. v. Lund, 167 Mo. 243; High on Ex. Remedies, 243. (2) It must be shown somewhere on the face of the record that a valid petition was first filed with the county superintendent, otherwise the superintendent is without jurisdiction to proceed. This is nowhere shown upon the face of the record. (3) It must be shown that five plats identically alike were posted in public places within the district full fifteen days and that the boundaries of said plats were identically the same, and that they were signed by the county superintendent. It was not shown that the plats were alike, but very materially different. The plats were not signed nor in any manner authenticated. State ex rel. v. Courtright, 205 S.W. 248; Laws 1917, p. 509-510, the proviso. (4) The statute requiring that the plats be first signed by the county superintendent, or they shall not be posted, is mandatory, and must be followed and if not done the failure is fatal. Laws 1913, Amended 1917, the proviso; State ex rel. v. Courtright, 205 S.W. 248.
Williams & Robison for respondents.
(1) The county superintendent need not personally post the plats or notices but it may be done by some one at her request. State ex rel. v. Clouds, 180 S.W. 26, (2) It is true that a certified copy of the plat was not filed with the county clerk at the time the same was prepared but was filed afterward. It is not required to be filed at the time but may be filed later. State ex rel. v. Cloud, 180 S.W. 27. (3) The plats and notices, when posted, were uniform and two of the original plats are in evidence. And one of the original notices is in evidence. (4) Relators' exhibits can prove nothing for they were found mutilated, torn, muddy defaced, faded and weather-beaten after the election had been held at places they had fallen after being posted and the evidence shows that they were not in this condition when they were posted but were identical with the respondents' exhibits. (5) Another reason why these exhibits are worthless and prove nothing is that this case before this court is the same as any other case where the trial court has to determine the facts. State ex rel. Sherman v. Hall, 228 S.W. 1056. (6) This covers everything contended for by the relators except that the plats should have been approved and signed by the county superintendent of schools. This would be an absurd construction to place upon the statutes. Why have the superintendent state on the plat that she approves her own work when the law makes it her duty to make the plats? This section (now Sec. 11258, R. S. 1919) means that where the territory is taken from two or more counties, then it shall be approved and signed by the superintendents and has no application to territory taken wholly from one county. (7) Even if the plat should be signed by the county superintendent, the notices posted especially pointed an index finger to all the voters who inspected the notice and call their attention to the plat by saying: "To organize by vote a consolidated school district in this community with boundaries as laid out on the plats posted." This directs the voter to the plat; makes the plat a part of the notice and the notice is signed, and it would be a sufficient signing of the plat even if the signing of the plats were required. (8) Even if the statute should be constituted as to require the plat to be signed by the superintendent, such requirement would not be mandatory but only directory. Horsefall v. School District, 143 Mo.App. 545.
This application arises out of a quo warranto proceeding instituted by the Attorney-General in the Circuit Court of DeKalb County at the relation of several taxpaying citizens of certain school districts, the purpose of which is to question the legality of the election and the right of the respondents to exercise the functions and perform the duties of school directors of a proposed consolidated school district in said county, the creation and organization of which, it is contended, was not in conformity with the law and, hence, the election of the directors was invalid. Upon a hearing before the circuit court, the ouster prayed for was denied, the court holding that the consolidated district had been organized as required by law, and that the respondents had been regularly elected and qualified and were entitled to perform the duties required by law in such cases.
From this judgment an appeal was perfected to this court. The facts are substantially as follows: Upon a petition of certain qualified voters, the Superintendent of Schools of DeKalb County was requested to investigate the needs of what is designated as the Fairport community for the establishment therein of a consolidated school district. This she did, and after determining the boundaries of the district, she issued a call for a special meeting to determine whether the district should be formed. The call for this meeting was made by posting ten notices and five plats within the proposed district, and calling a meeting to be held at a place designated therein. The notices and plats were posted more than fifteen days before said meeting, and a copy of the plat was deposited with the county clerk, and a copy of same was also taken by the superintendent of schools to the meeting. The meeting convened at the time and place designated, and the proposition for the consolidation was submitted and carried by a vote of one hundred and nineteen to one hundred and fifteen, and this result was declared by the chairman to be the action of the meeting and was so certified to the county clerk.
The contention of the relators is, first, that the plats were not uniform in that they did not all embrace the same territory, and, second, that they were not signed by the county superintendent, although the notices were so signed, and that he did not acquire jurisdiction of the case and the proceedings were, as a consequence, invalid.
I. A review of the testimony does not sustain the relators' contention as to the lack of uniformity of the plats. The proferts of same preserved in the record, while dissimilar on their face so far as the indications of the boundaries of the proposed district are concerned, should be measured by all facts attending their making and posting. Starting with the assumption as to their correctness in the absence of any affirmative fact to the contrary, especially in view of their purpose and the disinterested manner in which we are authorized in presuming that they were prepared and posted we find that the particular ones in which the lack of uniformity is charged had been subject to the influence of the elements, namely, wind, sunshine and rain, for sometime before their introduction in evidence, and in some instances had been blown down...
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