75 Mo. App. 317 | Mo. Ct. App. | 1898
Lead Opinion
That the organization of the new district was not completed within the time required by statute is an undisputable fact. The question thus arising is whether or not the qualified voters of the new district could effect the completion of the organization of such district by assembling after the time had elapsed in which the statute made it their duty to assemble. This question for its solution depends upon whether the said statutory requirement as to time, is directory or mandatory. If the requirement is directory they could; but if mandatory could not.
Now looking to the provisions of said section 7977 and other sections in fari materia and it will be seen
It is therefore plain that in order to entitle the new district to the benefits and advantages conferred by the various provisions of the school law it is absolutely necessary that the meeting required by said section 7977 be held within the time therein prescribed. Our conclusion, therefore, is that the said statutory requirement was intended by the legislature to be imperative. It inevitably follows from these observations that the qualified voters of the new district who met after the lapse of the time in which they were required by the statute to meet were not invested with the powers of an annual district meeting as provided by section 7978, Revised Statutes. When they met they were invested with no statutory power and their proceedings were nugatory. They were powerless to then complete the organization of the district. Though they met and elected directors the new district remained unorganized.
As .the allegation of the petition that it was “duly organized as a village school district and that it was. duly incorporated and organized as such” was put in issue by the answer, and the plaintiff’s corporate existence was denied by the affidavit of the defendants, the burden was thereby cast on plaintiff to prove its corporate existence. White v. I. O. O. F., 30 Mo. App. 682; Edmonston v. Henry, 45 Mo. App. 346. The issue of the plaintiff’s corporate existence was therefore directly and not collaterally raised. Our conclusion must- be that the plaintiff is not a duly organized and incorporated village school district.
In the present case the record discloses no exercise by the plaintiff of the powers conferred by statute, on village school districts, unless the order of the board of directors directing this suit to be brought is such an exercise, which we do not think is the case, but if so we do not deem it sufficient within the meaning of the rule just referred to. It is our conclusion that the plaintiff has not shown itself to be an organized and incorporated village school district, either de
There are other questions discussed in the very able briefs of counsel which it becomes, in the view of the case just expressed by us, unnecessary to consider.
The decree of the circuit court which was for the plaintiff will be reversed.
Rehearing
ON MOTION NOE EEHEAEING-.
The plaintiff suggests that in the consideration of the case we overlooked section 7972, Revised Statutes, which provides that: “If the assent to such change be given by all the annual meetings of the various districts thus voting * * * the district or districts * * * shall be deemed formed * * * from that date;” but in this it is in error as will be seen by reference to that part of the opinion in which it is said that: “It must be conceded that under the statute— section 7972, Revised Statutes — a new school district may be formed by the consolidation of two or more entire districts.”
It is true the plaintiff now for the first time insists that the qualified voters did meet in conformity to the
Accordingly the motion will be denied.