175 Mo. App. 270 | Mo. Ct. App. | 1913
This is the third time that the question of the proposed incorporation of the town of Bellflower has been before the appellate courts. In State ex inf. Rosenberger v. Town of Bellflower et al., 129 Mo. App. 138, 108 S. W. 117, our court held that inasmuch as it was proposed to include within the limits of the new town 690 acres of land used exclusively for pastures and it was sought to incorporate 1100 acres of land into the village, that the judgment of the county court was void as in excess of the authority of that court; that the county court had no jurisdiction to include within the boundaries of the town so large a tract of outlying pasture land. The matter of the proposed incorporation then came before the Supreme Court in State ex rel. Scott v. Lichte et al., Judges of the County Court of Montgomery County, 226 Mo. 273, 126 S. W. 468. There a writ of prohibition was sued out to prohibit the county court from including within the boundaries of the proposed town an area comprising 460 acres, the petition for incorporation proposing to include that area. This is the same petition as íd the instant case. On hearing, the Supreme Court vacated the alternative writ and dismissed the proceeding, holding that the proposed. town, including, as it did, a tract of 460 acres, did not cover an undue number of acres and that while county courts are not given authority to include large bodies of farm lands within the limits of a village, where the only apparent pur
Then came this present action, a proceeding by quo warranto, challenging the validity of the action of the county court in granting incorporation.
Following the decision of the Supreme Court in the Lichte ease, supra, the county court of Montgomery county went forward with the matter under the same petition for incorporation which had been before the Supreme Court in the Lichte case and entered up a judgment incorporating the town of Bellflower as a village with an area of 460 acres. Following this action of the county court the county attorney, at the relation of one H: B. Scott, a nonresident owner of lands within the limits of the proposed town, brought quo warranto against the town and the persons named as members of its- first board of trustees, challenging the legality of the action of the county court in granting the incorporation. The action was dismissed as against the town of Bellflower and proceeded against the members of the board of trustees. It was heard before the circuit court, the preliminary writ which had been issued was quashed and the cause dismissed. From this action the prosecuting attorney and relator duly perfected an appeal to this court.
In addition to a challenge of the action of the trial court in the admission of certain testimony, which in the view we take of the. case it is unnecessary to notice, except incidentally as to one matter of evidence, to which we will hereafter refer, the decree of ineorpora
The second proposition is really the vital one in the case. The petitioners in the petitions presented to the county court, after setting out that they com stituted more than two-thirds of the taxable inhabitants living within the boundary of the territory thereinafter described, pray to be incorporated “under a police established for our local government, and for the preservation and regulation of any commons appertaining to the • territory within such boundary, known as the town of Bellflower as aforesaid, and' that the metes and bounds of said territory within which said taxable inhabitants reside, and which is sought to be incorporated by this proceeding, are as follows,” then describe the tract by metes and bounds' as in several sections and subdivisions thereof, all lying and being in Montgomery county. The petition concludes with a prayer that the territory included within the above described boundaries shall be incorporated as a body politic and be known by the name and style of the town of Bellflower. No “commons” are set forth by “metes and bounds,” nor mentioned, save as above.
We are compelled to- hold, on careful consideration of the decision of our Supreme Court in State, on the Information of the Attorney-Greneral, v. Woods, 233 Mo. 357, 135 S. W. 932, and on the authority of that decision, that the order of the county court in the case before us, is void. No reference to commons is in'the order nor are they described by metes and bounds in the petitions. The respondents attempted in the trial of this cause in the circuit court to overcome this difficulty by introducing evidence tending to show that in point of fact there were no commons within the boundaries. They attempted to prove that by the -introduction of the petition which was filed by the relator here, Scott, who was relator in the Lichte case, supra. We do not think'that this was competent proof of that fact. Moreover it will be observed that the petition in the case for the establishment of the town, in so many words, does set out that the petitioners “pray to be incorporated under a police established for our local government, and for the preservation and regulation of any commons appertaining to the territory within such boundary, known as the town of Bellflower as aforesaid.” This would seem to be conclusive against the petitioners, respondents here, that there were commons. Waiving that however, it will be noticed that there is an entire failure in the petition to set forth the metes and bounds of any commons or to describe them in any manner whatever. In the order itself there is no reference whatever .to any commons as included within the boundaries of the town. Nor is there any statement of record that there are no commons included within the boundaries. As we understand the decision of our Supreme Court in the Woods case, su
. In this view of the case we do not consider it necessary to determine the other point suggested, namely, whether the haring" of the cause had been lawfully adjourned from Danville to Montgomery City, at which place this final order was made; that is, whether the order had been made at a valid session of the court, and whether too much land was embraced in the proposed limits.
Resting our decision on what we understand to be that of our Supreme Court in the Woods case, supra, the judgment of the circuit court must be reversed and the cause remanded with directions to that court to award a peremptory writ of quo warranto as prayed for; this, however, without prejudice to a renewal of petitions, in statutory form, for the incorporation of the same territory into the proposed town or village.