The State ex rel. Frisby v. Hill
| Decision Date | 14 November 1899 |
| Citation | 53 S.W. 1062,152 Mo. 234 |
| Parties | The State ex rel. Frisby, Appellant, v. Hill et al |
| Court | Missouri Supreme Court |
Transferred from Kansas City Court of Appeals.
Affirmed.
A. F Woodruff and A. S. Cumming for appellant.
(1) A corporation may exist de facto, and its organization can not be attacked collaterally. Kayser v. Bemen, 16 Mo 90; St. Louis v. Shields, 62 Mo. 252; Stamper v. Roberts, 90 Mo. 683. (2) No change is authorized that creates or leaves a district with less than twenty school children. R. S. 1889, sec. 7972; Acts 1895, p. 267. And the commissioner has no jurisdiction where the creation of the new district, or the change in the boundary lines of the old districts, would leave any district with less than twenty pupils. School Dist. No. 1 v. School Dist. No. 2, 94 Mo. 612; State ex rel. v. Riley, 85 Mo. 156. (3) School districts are corporations of limited power. They have the powers expressly granted to them and such implied powers as are necessary to enable them to perform their duties and no more. The statutes giving them their power should be strictly construed. Buchanan v. Hannibal School Dist., 25 Mo.App. 85; 21 Am. and Eng. Ency. of Law, 800.
J. C. Wilson, Sallee & Crossman and C. H. S. Goodman for respondents.
(1) The forty-acre tract adverted to was never legally included within the boundaries of former district 6, and this being the case it yet remains a part of the district from which it was attempted to be detached. The boundaries of a district can only be changed at an annual meeting, while it appears from the record that such change was attempted to be made at special meetings held in the districts interested in the months of July and August, 1896. (2) One corporation can not give validity to the illegal act of another by exceeding its own authority. Johnson v. Dist., 67 Mo. 319. (3) One or all of the old districts may be annihilated.
This is a proceeding, quo warranto, by which the title of respondents to the office of directors of School District No. 6, Township 63, Range 29, in Harrison county, is challenged.
The facts of the case, about which there is no dispute, are as follows:
On April 6, 1897, and prior thereto, three of the school districts in the township above named, viz.: districts 5, 6 and 7, were composed of the twelve sections (with a small exception) which form the two southern tiers of sections of the township, that is, sections 25 to 36 inclusive. At the regular annual meetings held in those districts, on the date above named, a proposition was duly submitted to the voters to form two new districts out of the territory embraced in the three. Upon the vote being taken, the result was that districts 5 and 6 voted against, and district 7 in favor of the proposition; whereupon the matter was referred to the county commissioners, as provided in section 7972, R. S. 1889, who decided in favor of the proposition, and formed the two proposed new districts, making two districts of six sections each, in the place of the former three districts of four sections each; one of the new districts being designated as No. 5 and the other as No. 6. The respondents in this suit were duly elected directors in the new district No. 6, qualified as such, entered into office and are discharging the duties thereof.
It is admitted upon the record in this case that respondents are entitled to the office they hold, if the two new districts in question were formed in accordance with the law, and it is admitted that they were formed according to law unless their organization was rendered invalid in consequence of one or both of the following facts, viz.:
First. Adjoining the old district No. 6 on the south, was district No. 1 of township 62, range 29. At a special meeting held in that district in July, 1896, a vote was taken whereby the north half of lot number 2 of section 3 in that township, containing 40 acres, which was then a part of the district, was voted out of it, that is to say, it was so voted out if it was lawful for the meeting to vote it out; and at a special meeting of the directors of the old district No. 6, held in August following, that 40 acres was voted into No. 6, that is to say, the directors of No. 6 voted to do so, and thereafter the 40 acres was treated as a part of No. 6, and the children residing therein, being less than twenty in number, attended the No. 6 school. In the formation of the two new school districts above mentioned, that 40-acre tract was ignored; it was not included in the proposition voted on at the annual meeting of April 6, 1897, nor taken into consideration by the county commissioner, and forms no part of either of the two new districts.
Relator contends that thus leaving the children residing on that 40 acres unprovided for, violates that provision of section 7972, R. S. 1889, which forbids the formation of a new district containing less than twenty children, or a change of boundaries whereby a district is so reduced as to contain less than that number.
Second. Under this scheme of organization one of the old districts is blotted out; new district number 5 embraces all the territory of old No. 5 and the east half of old No. 6, and new district No. 6 embraces the west half of old No. 6 and all of old No. 7, which relator insists is unlawful, for two reasons, first because, as he contends, under the guise of forming new districts a district can not be blotted out, and its existence as a corporate entity terminated; second, he contends that a new district can not be formed by taking all of the territory of one and part of another.
Upon the trial in the circuit court there was a finding and judgment for the respondents, from which, after due course, the relator took an appeal to the Kansas City Court of Appeals, and after the record was lodged there, that court, upon looking into it, discovered that it involved the title to an office under this State, and thereupon made an order transferring the cause to this court, and it is now here for review on the relator's appeal.
I. Although neither party has challenged the correctness of the judgment of the Kansas City Court of Appeals on the point of jurisdiction mentioned, yet we deem it proper to note the point and say in regard to it that the ruling of the Kansas City Court of Appeals was entirely correct. Section 12, article VI, of the Constitution confers on this court jurisdiction "in cases involving . . . . the title to any office under this State; . . . . in cases where . . . . any State officer is a party." Two classes of officers are here referred to, viz., all those who hold office under the State, and State officers. All State officers are embraced in the first class, but all embraced in the first class are not State officers. We have had occasion in former adjudications to construe these two forms of expression occurring in this clause of the Constitution, and have held that the terms "office under the State," as there used, meant an office whose authority is derived from the State, and in which some of the sovereign functions of the State government are exercised, whilst the term "State officer" meant one whose jurisdiction is coextensive with the State. In the one class of cases this court has jurisdiction only when the title to the office is involved, in the other it has jurisdiction when the officer is a party to the suit. Under this ruling we have held that a deputy constable, a deputy sheriff, a circuit clerk held office under the State; also that an election commissioner and a sheriff, though each held office under the State, was not a State officer. For a full discussion of this subject, see State v. Dierberger, 90 Mo. 369, 2 S.W. 286; State ex rel. v. Dillon, 90 Mo. 229, 2 S.W. 417; State ex rel. v. Spencer, 91 Mo. 206, 3 S.W. 410; State ex rel. v. Rombauer, 101 Mo. 499, 14 S.W. 726; State ex rel. v. Bus, 135 Mo. 325, 36 S.W. 636; State ex rel. v. Higgins, 144 Mo. 410, 46 S.W. 423. Under the construction placed on the provision of the constitution in the above cited cases we now hold that the office of director of the school districts is an "office under this State," and this court has jurisdiction of a case in which the title to such office is involved.
II. We now come to the consideration of the first objection urged by the relator to the validity of the organization of the new school districts, viz., that it leaves out of the organization a...
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