The State ex rel. Smart v. Wilson

• Decision Date: 11 May 1903
• Citation: 74 S.W. 404,99 Mo.App. 675
• Parties: THE STATE OF MISSOURI ex rel. CHARLES W. SMART et al., Appellants, v. EMMETT M. WILSON et al., Respondents
• Court: Kansas Court of Appeals

74 S.W. 404

99 Mo.App. 675

THE STATE OF MISSOURI ex rel. CHARLES W. SMART et al., Appellants, v. EMMETT M. WILSON et al., Respondents

Court of Appeals of Missouri, Kansas City

May 11, 1903

Appeal from Sullivan Circuit Court.--Hon. John P. Butler, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Wilson & Clapp for appellants.

(1) Nothing will be presumed to be within the jurisdiction of inferior courts and tribunals, and their jurisdiction must appear by the record in all cases where it is directly attacked. State ex rel. v. County Court, 66 Mo.App 96; Railroad v. Young, 96 Mo. 39, and cases cited. (2) It is a familiar rule, and one which has been frequently enforced by the courts of this State that the facts showing jurisdiction of inferior tribunals must affirmatively appear upon their record, and that no presumptions are indulged in as to matters not so appearing. State v. Metzger, 26 Mo. 65; Harris v. Hunt, 97 Mo. 574; Bank v Doak, 75 Mo.App. 332; Ex parte O'Brien, 127 Mo. 477; Sutton v. Cole, 155 Mo. 213. (3) An appeal must be filed with the commissioner within five days after the annual meeting. Sec. 9742, R. S. 1899. The annual meeting of each school district shall be held on the first Tuesday in April of each year. Sec. 9749, R. S. 1899. As the annual meeting always comes on the first Tuesday, the fifth day thereafter always comes on Sunday. If the last day fixed by statute for doing an act falls on Sunday, then Sunday shall be excluded and the act must be performed on the previous Saturday. Sec. 4160, R. S. 1899; Patrick v. Faulke, 45 Mo. 312; Miner v. Tilley, 54 Mo.App. 627. (4) And the rule that when the last day of a period of time falls on Sunday the period will be extended to include the following Monday, is not applicable to acts which by statute are required to be done within a certain time therein limited. Haley v. Young, 134 Mass. 364.

R. E. Ash and Wattenbarger & Bingham for respondents.

(1) We presume the rule is well established that the jurisdiction of all inferior courts and tribunals must appear by the record in all cases where it is directly attacked. Such facts as give jurisdiction must affirmatively appear upon their record. We raise the question, would this doctrine apply to a school board of arbitration where the law does not require them to keep a record? The board of arbitrators, having acquired jurisdiction as in this case, the statute contemplates a mere informal investigation by them of the necessity of the proposed change, and does not require a record to be kept either by the superintendent of schools or the board of arbitration, not even a record of their decision. They are only required to transmit their decision to the clerks of the districts concerned. R. S. 1899, sec. 9742; State ex rel. v. Gibson, 78 Mo.App. 175. By their action they complied with the letter of the law. There is no necessity for any other record. State ex rel. v. Denny, 94 Mo.App. 565. (2) The matter of appeal was referred to the county commissioner and was filed with him in writing on Monday following the school meeting held on Tuesday, the first day of April, 1902. This was within the time provided by law. Sec. 9742, R. S. 1899. The first Monday after the annual meeting is the last day upon which the appeal can be filed. Carrington's Notes, School Law 1899, p. 8; sec. 4160, subd. 4, R. S. 1899; Evans v. Railroad, 76 Mo.App. 468. (3) The board of arbitrators do not constitute a court of record, nor are they recognized as a judicial body. We do not think the Legislature intended to clothe them with judicial powers. The statute contemplates a mere informal investigation by the board of arbitration as to the propriety of the changes. Having acquired jurisdiction of the matter, they are directed to proceed to inform themselves as to the necessity of such proposed changes. State ex rel. v. Gibson, 78 Mo.App. 170.

OPINION

ELLISON, J.

--The facts necessary to state for a determination of this appeal are as follows:

A proceeding was begun under the provisions of section 9742, Revised Statutes 1899, to change the boundary line of school districts in Sullivan county. One district voted in favor of and the other against the change. An appeal was taken to the county school commissioner, as provided in such statute, when he appointed a board of arbitrators who decided in favor of the change. Whereupon a writ of certiorari was issued from the circuit court of that county requiring the record and proceeding to be certified to that court for further disposition. There was an agreed statement of facts which was accepted as the return to the writ. The court dismissed the petition and respondents therein were discharged. Whereupon, relators appealed to this court.

The question presented here relates to the validity of the proceeding before the school commissioner and the board of arbitration. The statute aforesaid provides that when it was desired to form a new school district out of the territory of other districts, or to change the boundary line of districts, a petition should be presented to the district clerks of the districts affected, who are required to give fifteen days notice before an annual meeting, when the question shall be submitted to the voters there assembled. The statute further provides: "If the assent to such change be given by all the annual meetings of the various districts thus voting, or of the part of the district to be divided, each part voting separately, the district or districts shall be deemed formed or the boundary lines thus changed from that date; but if all the districts, or parts of districts affected do not vote in favor of such change, the matter may be referred to the county commissioner; and upon such appeal being filed with him, in writing, within five days after the annual meeting, he shall appoint four disinterested men, resident taxpayers of the county, who together with himself, shall constitute a board of arbitration, whose duty...