277 Mo. 458 | Mo. | 1919
The prosecuting attorney of Lincoln County filed in the circuit court of that county an information in the nature of a quo warranto at the relation of eighteen taxpaying citizens of School District No. 37 of Lincoln County, against Consolidated School District No. One of Lincoln County, the purpose of which was to oust the respondent from exercising authority over the territory of District No. 37.
On trial of the cause the circuit court found the issues in favor of the respondent, Consolidated School District No. One, and the relators appealed.
The petition of relators alleged that they were resident taxpayers within and patrons of School District No. 37, a legally and duly organized school district; that Consolidated School District No. One without any warrant or authority, exercised jurisdiction and authority of a consolidated school district over the lands and property contained in School District No. 37, and was attempting to fix the rate of taxes for school purposes and attempting to exercise control over the school -as a part of Consolidated District No. One, and had abolished, or attempted to abolish, the school within the said School District. No. 37.
It is further alleged that School District No. One undertook to procure the annexation of School District No. 37 and procured a special election and school meeting to he held in District No. 37 for The purpose; but that no proper or legal election was held; and at the election so illegally held, a majority of the qualified L inters of said district who voted did not vote in favor
For answer and return respondent sets up that a part of the territory of School District No. 37 of Lincoln County had been incorporated in District No. One, and that thereafter the remaining inhabitants of School District No. 37, on the 19th of March, 1907, held a special school meeting at the schoolhouse in said District No. 37 for the purpose of voting upon the annexation of said School District No. 37 to Consolidated School District No. One; that a proper petition was presented to the board requesting that such meeting be called and proper notice given of such meeting; that at such meeting a majority of the voters of said District No. 37 voted in favor of such annexation; that the secretary of that meeting duly certified that fact with a copy of the record to the board of directors of School District No. 37 and the board of directors of Consolidated School District No. One, and that thereupon the board of directors of said Consolidated School District No. One met and voted in favor of such' annexation and affirmed such annexation by proper order and resolution, and that thereupon said District No. 37 became a part of Consolidated District No. One.
The judgment of the trial conrt recited that the territory of School District No. 37, as it existed at the time of the meeting on March 19, 1917, is now lawfully incorporated and annexed to said Consolidated School District No. One, and is a part of said district, and that said district is entitled to exercise the privileges, rights and franchises over the territory of District No. 37. The respondent was discharged.
On the trial the respondent, Consolidated School District No. One, undertook the burden' of establishing the facts stated in its return and answer. It introduced George F. Mudd, a member of the board of directors and district clerk of Consolidated School District No. One. He testified that the board of directors of School District No. One met on March 23, 1917, and accepted the certificate of election held in District No. 37 on March 19th, previous; he identified the record showing á special meeting on March 23rd; the board of directors consisted of six members and only four were present at' that meeting. This record revealed the acceptance of the result of the election in No. 37 asking said election.
The respondent then offered the certificate of the clerk of District No. 37 and the records of the proceeding of said district, showing the holding of the special election in that district on March 19th for the purpose of voting on the proposition to annex to School District No. One, and showing that the result in said election resulted in fourteen for such annexation and thirteen against. The respondent also offered in evidence the petition to the board of directors of School District No. 37 asking said election.
The respondent then rested its case.
Thereupon relators introduced Claud Clare. He testified that at the special meeting held in District No. 37 on March 19th, the votes showed fourteen for annexation and fifteen against, and the record was so made and the minutes were- so written. These minutes were lost or destroyed, and four days later the minutes certified to the hoard of directors of Consolidated School District No. One showed fourteen for and thirteen against. Other evidence was offered of that. result. As to just the reason for this change there is some confusion in the testimony, hut no dispute as to the fact. It seems that immediately after the election on March 19th, the people living in School District No. 37 became afraid that they would be annexed to what is termed the Millwood District, another adjacent and consolidated district, to which they all objected, and in order to avoid that calamity they cast about for a method to reverse their vote and procure annexation to Consolidated District No. One. It is disputed as to whether some persons in District No. One who favored the annexation started the agitation or whether it originated in District No. 37. At any rate, a pretext was discovered to disregard the return and certify that the vote was carried in the supposed discovery that two of the voters who voted against annexation
A paper called “Exhibit 5” was before the court and much testimony offered in connection with it. Exhibit 5 is not in the record, but it was treated at the trial as in evidence and is so treated in the argument here. It appears to have ‘ been a statement signed by most of the relators and probably all or nearly all the voters in District No. 37 who originally voted against annexation. The statement was to the effect that the signers favored annexation and desired, to have the order made accordingly. It seems that this paper was before Consolidated School District No. One at its meeting on March 23rd, when it acted upon the certificate of the clerk.
Much evidence was offered pro and con as to whether the two voters, Walter Morris and Charles Houston, who voted against annexation, were in fact residents of District No. 37.
There was evidence offered to show that before the annexation was accomplished in the way indicated, it was agreed by those in authority in District No. One that a ward school was to be placed at a particular point in the territory of No. 37; that afterwards the ward school was not located to suit the people of No. 37, and the failure of District No. One to do that was the cause of the dissatisfaction of relators and their bringing this action to declare the whole thing void.
I. By the Act of 1913 (Laws 1913, p. 722) Article 4, Chapter 106, Revised Statutes 1909, was made to apply to consolidated school district and .country districts' adjacent, where formerly it only applied to towns and villages and school districts adjacent.
It is claimed by appellant that the meeting of the board of directors of Consolidated School District No. 1 on March 23rd was not valid, because only four of the sis members of the board were present. There is evidence, however, tending to show that all members of the board were notified. The certificate from the clerk of the district, No. 37, was present showing the election had been carried, also the statement signed by a number of the relators, voters of No. 37, designated as Exhibit No. 5, requesting the annexation. Upon this information the board of Consolidated School District No. One voted and accepted the territory comprising District No. 37 as formally annexed.
That proceeding of the board of Consolidated District No. One was regular in every respect and settled the matter so far as action of that board was concerned.
II. Much of the briefs and arguments of the parties is taken up in a discussion of the regularity of the proceeding by which District No. 37 attempted to annex itself to Consolidated District *No. One, and whether, under the circumstances, the actual vote cast at the electon of March 19, 1907, may be inquired into and the qualifications of voters who voted at that time determined. Before considering those alleged irregularities, another question must be determined:
Appellants, on the other hand, claim that the relators cannot be estopped; that this is a proceed
It is true that an information in the nature of quo warranto filed by a prosecuting attorney ex officio is of the character contended for and entirely within the control of the State. It is a common law remedy derived from the ancient writ of quo warranto. [State ex rel. Brown v. McMillan, 108 Mo. l. c. 157; State ex inf. v. Smith, 271 Mo. 168, l. c. 178; 22 R. C. L. p. 657.] The cases, however, have always made a distinction between an information filed by the State’s attorney ex officio and one filed by him at the relation of private parties. [State ex inf. v. Berkeley, 140 Mo. l. c. 186; State ex rel. Boyd v. Rose, 84 Mo. 198, l. c. 202; State ex rel. McIlhany v. Stewart, 32 Mo. 379, l. c. 381.]
The proceeding here brought at the relation of private parties is purely statutory, and the statute, Sections 2631 to 2635, Revised Statutes 1909, determine the character of the action. For instance, Section 2631 provides: “When such information has been filed and proceedings have been commenced the same shall not be dismissed or discontinued without the consent of the person named therein as relator; hut such relator shall have the right to prosecute the same to final judgment, either hy himself or by attorney.”
Section 2634 provides, that the person procuring such information shall proceed thereupon at the most convenient speed. Section 2635 provides that if judgment should be given for the defendant in such a proceeding he may recover his costs against the relator.
In the case of State ex inf. v. Taylor, 208 Mo. 442, cited as showing that the prosecuting attorney who files the information controls the proceeding, it was simply held that the proceeding could not be commenced in the name of a prosecuting attorney without his consent;
They participated in the election of two directors,
Appellant quotes from Acton v. Dooley, 74 Mo. 63, l. c. 67, where this court, following Herman on Estoppel, laid down the elements of estoppel in pais as follows: “Before the party is concluded by an estoppel, it must appear, 1st, That he has made an admission which is clearly inconsistent with the evidence he proposes to give, or the title of the claim he poses to set up. 2nd, That the other party has acted on the admission. 3rd, That the other party will be injured by allowing the truth, of thé admission to be disproved.”
The facts in this case contain all those elements of estoppel in pais. The relators made admissions which are inconsistent with their purpose here. The respondent acted upon them in incorporating the district and in proceeding with the regular business of the annual election. Expense was incurred, taxes levied, teacher employed, teacher’s salary fixed, and the property and affairs of the new district entirely readjusted on the faith and belief of the respondent that the relators acquiesed in that proceeding. The relators are estopped to question the validity of the annexation.
It becomes unnecessary to .consider the alleged irregularities at the meeting of March 19th.
The judgment-is affirmed.
PER CURIAM: — The foregoing opinion by White, C., is adopted as the opinion of the court.