84 Mo. App. 654 | Mo. Ct. App. | 1900
This is an • original proceeding for a writ of prohibition. The facts of the ease, as disclosed by the record, are about these:
Eifteen days before the third day of April, 1900, the day fixed by law for annual meetings in the various school districts in the state, a petition was presented to the clerk of the relator district, which recited that it was deemed necessary that a new school district be formed of part of school district number five (5), township sixty-three (63), range twenty-nine (29), of Harrison county, and part of school district number six (6), township sixty-three (63), range twenty-nine (29) of Harrison county, in the following manner, to-wit: By taking from said district number five (5), sections twenty-seven (27) and thirty-four (34), township sixty-three (63), range twenty-nine (29), and taking from said district number six (6), sections twenty-eight (28) and thirty-three (33), -township sixty-three (63), range twenty-nine (29), and forming said four sections into a new
“Therefore, we the undersigned qualified voters residing in district number five (5), desiring such change, hereby petition that the proposition for such change be submitted to the annual school meetings to be held in the districts affected on the third day of April, 1900, and that you give notice thereof as required by law by posting notices of such desired change in at least five public places in said district number six (6) fifteen days prior to the date of the annual meeting aforesaid.”
This petition was signed by thirteen qualified voters residing in said district number 5. It is conceded in the statement of agreed facts that the clerk of the relator district did not post up notices in said district, prior to the day of the annual meeting, of the proposed territorial change of the district; or that the proposition to make a territorial change in district number 5 would be submitted to the qualified voters of that district at said ensuing annual school meeting. It is further conceded that the directors of the relator district did not post up any such notices of the submission of any such proposition to the qualified voters of said district at the said annual school meeting therein. It is further conceded that no vote was taken on said proposition at said annual meeting in said relator district.
It appears that at said annual meeting in district 5, the said proposition was voted on and adopted by the qualified voters therein. It further appears that within five days after said annual meetings the said district number 5 filed with the respondent, the county school commissioner, a paper entitled an “appeal,” in which it is recited that a written petition of more than ten qualified voters residing in district 5, had been duly presented to the clerks of district 5 and of the
“Whereas, after the receipt of said petition the district clerks of each of said districts gave due notice as required by law by posting notices thereof in at least five (5) public places in each district at least fifteen (15) days prior to the date of the annual school meeting held in said district, on the third day of April, 1900, that a proposition to form a new school district as aforesaid, would be submitted to the qualified voters at said annual meeting assembled, and
“Whereas, at the annual meeting duly held in said district, number five (5), on said third day of April, 1900, a majority of the qualified voters at said annual meeting assembled, by a vote of twenty-four (24) to one (1) voted in favor of said proposition, and
“Whereas, at the annual school meeting held in said district number six (6) on said third day of April, 1900, a majority of the qualified voters there assembled failed to vote in favor of said proposition, and
“Whereas, there are more than twenty children of school age residing within the territory proposed "to be formed into a new school district, as aforesaid, and in the territory remaining in said district number five (5), and said district number six (6), after detaching the territory proposed to be taken to form the new school district,* as aforesaid, respectively.
“Now, therefore, deeming the formation of the new district as aforesaid necessary, said school district number 5, acting by order of its board of directors hereby brings this appeal, and refers the matter to the honorable county school commissioner, as aforesaid, and prays the said commissioner*660 to appoint four disinterested .men, resident taxpayers of said Harrison county, who, together with himself, shall constitute a board of arbitration, and prays that said board of arbitration when convened and organized, according to law, will order and decree the formation of a new school district, in the manner and form as set forth in this appeal and in the petition and notices as aforesaid, and for this your petitioner will ever pray.
“District Number Five (5), Township sixty-three (63), Range Twenty-nine (29), Harrison county, Missouri.
“By A. S. Gumming and Wanamaker & Barlow,
Its Attorneys.’*
It further appears that on the day of the filing of said appeal paper that the said district number 5 deposited with the said county school commissioner fifteen dollars, the fee required by statute in such cases, - and that thereupon that officer appointed the other four respondents as arbitrators to constitute, with himself, a board of arbitration to hear said appeal and to consider and determine the necessity for the proposed change in said districts. It further appears that the said school commissioner duly notified said four respondents of their appointment and requested them to meet him at a designated place on the fourteenth day of April, 1900, which was fifteen days after the said annual meetings had been held. It further appears that the said board of arbitration met and organized for the purpose of considering said appeal and before any further steps were taken by said board of arbitration the provisional writ in this case was served upon them.
I. The respondents insist that in their quality as a statutory board they are not a court of record and that therefore we are without jurisdiction to award the writ against them.
There is no provision of law allowing an appeal or writ of error from the decision of the board of arbitrators in a case like the present. But if a writ of error or an appeal could be prosecuted from the decision of the arbitrators, the
But if a municipal corporation is not a political subdivision of the state in a jurisdictional sense, it must follow that a levee district or a school district, each of which are but quasi public corporations, possessing only a portion of the powers of municipal corporations, are not political subdivisions of -the state in such jurisdictional sense. The courts of appeal have uniformly exercised a superintending control over the inferior courts of record in respect to cases therein originating when one of the parties thereto was a school district; and this jurisdiction, so far as we are advised, has never before been questioned. We must hold that a school district in a jurisdictional sense is not a political subdivision of the state.
The respondents in further disputing our jurisdiction invoke the application of the well-recognized rule which is to the effect that: “To determine, in the first instance, its own jurisdiction, as far as the same rests on contested facts, is a legitimate exercise of the judicial powers of any tribunal
Whether the said board of arbitration in entertaining said appeal and in proceeding to consider and decide “the
The authority conferred by the foregoing section of the statute is limited to be exercised by the voters of the district at the annual meetings and upon petition and notice as therein specified. State v. Hall (not yet reported). These things are required by the statute and are in the nature of a condition precedent to the appeal. In the present case it is conceded there was no vote in one of the districts to be affected.
We are not called upon to determine whether if the notice required by the statute be posted up in one' of the districts by the qualified voters of the other would be legal. If both districts had voted on the proposed change at the annual meeting that question would have arisen, but as there was a vote taken in only one of them it is not before us. There was nothing on which an appeal to the commissioner could be based. The appeal would have been just as much authorized had no vote whatever been taken on such proposed change at the annual meetings in either of said districts. The qualified voters in eacli district or part of district to be affected must first be afforded an opportunity to approve or disapprove the change by tlioir vote at the annual meetings, and until their disapproval is so expressed in one or the other of such districts there can be no appeal nor authority in the commissioner or a board of arbitration to consider or decide the necessity for such proposed change. The proposed change is one whose decision is primarily left by the statute to the qualified voters of the districts to be affected, and until such voters have been afforded an opportunity to determine the question of such change in the manner and at the time required by the statute, and have not cast a majority vote in all the districts in favor of the change, it is idle to claim that an appeal can invest the commissioner
Prohibition will not lie to restrain a purely ministerial act. State v. County Court, 41 Mo. 44; Casby v. Thompson, 42 Mo. 134. But it will lie to restrain a judicial act. All acts based upon a decision, judicial in its nature and affecting either a public or private right, are judicial acts. Wood on Mandamus, etc., 165; Sweet v. Hulburt, 51 Barb. 312. As it has been held that referees appointed under a statute to hear and determine a -right of way sought by one person over the .land' of another so far partake of the character of a judicial body as to be amenable to the writ of prohibition. State v. Stockham, 14 S. C. 417. And so, too, it has been held that a board of county commissioners acting in a judicial capacity in determining the damages to be paid for land taken for railway purposes may be prohibited from proceeding with the enforcement of such damages under a law which is -unconstitutional. Railway v. Co. Com., 127 Mass. 50; see, also, State v. McGrath, 91 Mo. 386. When the writ is issued to a body or officer it is only to restrain the exercise of judicial powers. Ins. Co. v. Kent, 13 Minn. 244. The section of the statute already referred to invests the board of arbitrators with judicial powers. It is authorized to give notice of the time and place when and where it will proceed to hear and decide the subject-matter of the appeal. Its decision is made final. Since it has no authority to proceed without notice and since its determination is final and conclusive, it follows that its proceeding was judicial in its character. Ins. Co. v. Kent, supra.
It is clear that the commissioner acted and proposed to further act in conjunction with the arbitrators appointed by him in excess of the judicial powers conferred upon them