113 Mo. App. 134 | Mo. Ct. App. | 1905
— This is a proceeding by writ of certiorari to review the action of a board of arbitrators creating a new school district from territory detached frorii four contiguous districts in Butler county. The return of the respondents to the writ of certiorari contained a transcript of their action and certificate and also copies of the petitions presented to the clerks of the four districts affected by the new district, copies of the notice of election and the certificates of the several clerks of the districts of the result of the election in each of the four districts. Appellant moved for judgment on the return. Respondents filed the following motion to quash the writ:
“First. Because the petition does not state facts*138 sufficient to entitle the petitioner to the relief prayed for..
“Second. Because the facts stated in the petition do not show the petitioner entitled to a writ of certiorari or other extraordinary or equitable relief.
“Third. Because upon the face of the petition the petitioner is estopped from claiming the relief prayed for.
“Fourth. Because the decision of the county school commissioner and board of arbitration, in forming the new school district mentioned in the petition, is final and not subject to review by writ of certiorari.
“Fifth. Because there is a defect of both party relator and parties respondents.”
Hon. J. L. Fort, the regular judge of the court, being unable to attend and hear the cause, Hon. H. N. Phillips was agreed upon by both parties to hear and determine the case.
The motion to quash and for judgment on the return were both taken up and heard and after mature de- - liberation the learned special judge sustained the motion to quash and the writ was quashed. The appeal was taken in the ordinary way. The board of arbitrators was appointed by the commissioner of public schools of Butler county under the provisions of section 9742, R. S. 1899.
It is conceded that the certificate of the board of arbitrators forming the new school district is regular on its face and is sufficient in form and substance. The districts from which territory was detached to form the new district were districts Nos. 2 and 4, township 24, range 5. Nos. 2 and 4, township 24, range 6. 'Twenty-four voters' of these districts signed a petition and filed it with the clerk of district No. 2, township 24, range 6. In their petition they expressed the desire for the formation of a new school district out ■of territory (described) to be detached from each of the above four districts, and petitioned that the proposition
Section 9742, supra, makes it a condition precedent to the right of a clerk of a public school district to post, notices of a proposition to form a new district, or ■change the boundry lines of an existing district, that a petition, signed by at least ten qualified voters of a district to be affected, asking for the formation of a new district, or the change in the boundary lines of an existing district, shall be presented to the clerk of each district affected. No such petition was presented to the clerk of any one of the four districts affected by the formation of the new one, and for this reason the elections held under the notices were absolutely void. The elections being void, there was nothing to appeal from to the county school commissioner and he and the board
It is contended by respondents that the certificate made by the board of arbitrators and transmitted to the clerks of the four districts affected constituted the entire record of the board of arbitrators. If this question was one of first impression we would be inclined to hold that the record of these tribunals is composed of the petetion or petitions presented to the clerk or clerks of the district or districts and the. notices posted for the election, for the reason that upon these documents depends the jurisdiction of the arbitrators to hear the appeal and from them only can it be ascertained whether or not jurisdiction was conferred upon the arbitrators to act. The school statutes are silent as to what disposition shall be made of the documents; notwithstanding their importance the statutes make no provision for their custody or perpetuation. The only record the board of arbitra
The respondents made the point that quo warranto and not certiorari is the appropriate remedy to test the legal existence of the new school district. School districts are declared by section 9737, R. S. 1899, to be bodies corporate, possessing the usual powers of corpor
' High says, “The propriety of a quo warranto information to correct usurpations of the franchises of municipal corporations, as well as to determine the title by which such bodies exercise their franchises, has long-been recognized in 'England.” [High, Extraordinary Legal Remedies, sec. 678.] Further on in the same section the author says: “In the United States the information has been less frequently employed against municipal corporations, although the propriety of the remedy in such cases is satisfactorily established.” The ■same author at section 684 says:
“The creation of corporate franchises being an attribute of sovereignty to be exercised only by the supreme power in the state, all who presume to exercise such franchises without due authority are liable to proceedings by information in the nature of a quo warraoito. And when it is sought to exercise the privileges, and powers of a municipal corporation without authority-of law, an information is the proper remedy, and the court will give judgment that the pretended corporation be "dissolved.”
In State ex inf. v. Fleming, 147 Mo. 1, 44 S. W. 758;. it is said that quo wwrranto lies against an officer of a municipal corporation. Our statute in respect to quo warmnto (section 4457, R. S. 1889) provides: “In case any person shall usurp, intrude into or unlawfully hold or execute any office or franchise, the attorney general of the'state, or any circuit or prosecuting attorney of
In the case of State ex rel. v. Stone, 152 Mo. 202, 53 S. W. 1069, a new school district had been formed by-detaching territory from adjacent districts and the defendants had been chosen and were exercising the offices, of directors of the new district. Information in the nature of quo warranto was filed against them, asking the court to oust them from office on the ground that the new school district had not been legally formed. The circuit court gave judgment of ouster against ■ the defendants which judgment was affirmed on appeal. In State ex rel. Walker v. Dobson, 135 Mo. 1, 36 S. W. 238, and State ex rel. Boyd v. Rose, 84 Mo. 198, jurisdiction to oust directors of a public school district from their-offices by quo toarranto was entertained. In School District v. Hodgin, supra, quo toarranto is said to be the' appropriate remedy to test the legality of the information of a new school district. On these authorities we think that information in the nature of quo warranto is the appropriate remedy to test the legality of the formation of the new district and that the motion to quash was for-this reason properly sustained by the learned trial judge.
The contention of appellant, that the proceedings, of a board of arbitrators, under section 9742, supra, being judicial, on common law principles its proceedings, are reviewable by writ of certiorari, there being no appeal allowed by the statute. We have no doubt that this, is true where the action of the board of arbitrators sought to be reviewed is for changing the boundry lines.
The judgment is affirmed.