125 Mo. 439 | Mo. | 1894
This is a proceeding by plaintiff claiming to have been organized as a corporation under
Upon filing the petition with the judge of the circuit court of that county, Ray, defendant filed an affidavit putting in issue the existence of plaintiff as a corporation. The judge, however, appointed commissioners to assess defendant’s damages by reason of the taking and appropriation of his land, he and the plaintiff having been unable to agree with respect thereto, which said commissioners' reported at the next succeeding term of the circuit court of said county, assessing damages to defendant in the sum of $600. Defendant subsequently and in due time filed his exceptions to said report, which were overruled, the report approved and judgment rendered accordingly, from which he appealed.
No deposit of the amount of damages awarded was made with the clerk of the circuit court, nor was possession of the land taken by plaintiff.
Defendant’s first contention is that, before plaintiff can maintain this action it must appear from the evidence that it was legally organized as a special school district. In St. Joseph & Iowa Railroad Co. v. Shambaugh, 106 Mo. 557, which was a proceeding to condemn the defendant’s land for its right of way, it was held that its corporate existence might be put in issue, for, if the plaintiff had no corporate capacity, it had no right to prosecute the suit. City of Hopkins v. Railroad Co., 79 Mo. 100, was a proceeding begun by plaintiff for the purpose of opening a street in the town of Hopkins, through the depot grounds of defendant,
The rule seems to be different in some of the other states, in which it has been held that a defacto corporation might exercise the right of eminent domain. McAuley v. Railroad, 83 Ill. 348; Reisner v. Strong, 24 Kansas, 410; Schroeder v. Railroad, 44 Mich. 387; Niemeyer v. Railroad, 43 Ark. 111. The case last named was predicated of the fact that no provision is made by the law of that state, Arkansas, for any issue upon the right to condemn, the only question being one of compensation.
The authorities (aside from those last cited), relied upon by plaintiff as holding to a different rule from that announced in the case of Railroad v. Shambaugh, supra, and Hopkins v. Railroad, supra, and in which it has been held, that the corporate existence of a defacto corporation can not be inquired into, are cases where it was attempted to do so collaterally. Thus, Stamper v. Roberts, 90 Mo. 683, was a proceeding by injunction to enjoin the collection of school taxes, and it was rightfully held that plaintiff’s corporate existence could not be inquired into in that proceeding. Of a similar character are Granby Mining Company v. Richards, 95 Mo. 106; Fredericktown v. Fox, 84 Mo. 59; Kayser v. Trustees of Bremen, 16 Mo. 88; St. Louis v. Shields, 62 Mo. 247; Shewalter v. Pirner, 55 Mo. 218.
As under the law as announced by this court, the corporate existence of plaintiff was rightfully put in issue, it devolved upon it to show that in compliance with section 1, article 2, Wagner’s Statute, 1872 (see. 8083, art. 2, R. S. 1889), that the plat of the town of Orrick had previously been duly filed in the recorder’s office of Ray county, together with the territory attached, or which was thereafter attached to said town
The facts that defendant may have been a resident of the school district as organized, for ten years or more, the payment of school taxes by him, and participation in the school meetings do not estop him from disputing plaintiff’s corporate existence in this case, wherein his property is sought to be taken against his will for public use. His recognition of plaintiff as a school district was not inconsistent with the denial of its right to condemn and appropriate his land for a new school house site.
It devolved upon plaintiff in the first place to show that it had the authority to condemn, and this it could not do, by showing recognition by defendant of its corporate existence, and by showing that he was guilty of such acts and conduct as would estop him from denying its corporate existence in a collateral proceeding.
It has always been the law in this state that, when land of the citizen is sought to be condemned for public use, against his will and consent, a strict compliance with every essential prerequisite of the statute conferring the right is required. Ellis v. Railroad, 51 Mo. 200; Cunningham v. Railroad, 61 Mo. 33; Anderson v. Pemberton, 89 Mo. 61. And about the only evidence that this was done in this case was attempted to be shown by the testimony of Mr. Herring, which fell far short of complying with the mandates of the law.
The judgment is reversed.
