264 S.W. 997 | Mo. | 1924
Lead Opinion
This is a proceeding in quo warranto instituted in the Circuit Court of Laclede County, against the appellants as commissioners of the Southard-Drew Special Road District, challenging the validity of an order of the County Court of Laclede County incorporating said district. A change of venue was awarded to Howell County, where, on trial on December 17, 1923, it was adjudged "that the order incorporating said district was and is void and of no effect, and that the defendants are not entitled to the offices of commissioners of said claimed special road district," and they were accordingly ousted. From this judgment the defendants appealed.
It is conceded that the petition filed in the County Court of Laclede County for the incorporation of the district and the notice complied in every detail with the requirements of Section 10834, Revised Statutes 1919, under which the proceeding was had. A remonstrance was filed, stating the objections to the formation of the proposed district, in substance as follows: 1. It is not a public necessity. 2. It is not for the best interest of roads in that section of the county. 3. The boundaries as set forth in the petition would leave land near and adjacent to it without funds to build and maintain roads on the land left out of said district. 4. It would destroy road districts 4 and 5 already formed and leave them without roads and without funds to build and maintain them. 5. The land in said district will not be benefited by its formation in an amount approximating the probable burdens imposed by the formation thereof.
It is charged in the information that among those who signed the remonstrance were numerous owners of land in the proposed district who, through misrepresentations, had been induced to sign the petition; that they in due time filed said remonstrance before action was taken on the petition and requested the county court not to consider their names and to take them off the petition, and protested against the formation of said district; that said court, without any investigation of the facts stated *390 in said petition, and without hearing any testimony thereon, made and entered an order finding that the petition was signed by the owners of the majority of the acres of land within the territory sought to be incorporated; that the petition should have been considered without the signatures of those who afterwards signed the remonstrance and requested that their names be taken off, and that after the number of acres of land owned by said remonstrants had been deducted said petition failed to be signed by the owners of the majority of the acres of land within said territory, and the county court had no jurisdiction to consider said petition because of said fact; that the members of the said county court, at the time they made said judgment and order incorporating said road district, knew from the records before them and by their own information and calculation that the petition then before them was not signed and in writing consented to by the owners of the majority of acres of land in said territory, and knew that their said judgment was in this respect false and untrue and not warranted by the facts before them; that by reason of the foregoing facts, relators say that the judgment of the county court finding that said petition was signed by the owners of the majority of the acres of land within the said territory, was, within the meaning of the law, concocted in fraud and should therefore be adjudged void and of no effect. Here follow allegations that the annual election of the commissioners was fraudulently conducted, but that charge was abandoned at the trial.
The answer or return pleads at length the proceedings in the county court; that the petitioners and remonstrants appeared and, having arrived at a mutual understanding, recommended to the court the exclusion of a certain one hundred and eighty acres therefrom of the land of one of the remonstrants and change of boundaries accordingly, and the appointment of two of the remonstrants, Johnson and Munson, as commissioners until the ensuing annual election; that after due consideration, the *391 order was accordingly so made and commissioners were appointed and qualified.
The order incorporating the special road district recites the filing of the petition, signed by the owners of 18,884 acres of the 31,680 acres embraced in the proposed district, the giving of notice, and then proceeds:
"And it appearing to the court that the public good requires and makes necessary a change in the boundary lines, as proposed in said petition so as to exclude from said proposed district (here is described a tract of one hundred and eighty acres) so that the description of the boundaries of said district shall be as hereinafter set out, and after excluding the said one hundred and eighty acres because the public good requires and makes the same necessary, the court doth find that the aforesaid petition is signed in writing by the owners of a majority of all the acres of land within the district as so changed; that after excluding the aforesaid one hundred and eighty acres of land, there remain 31,500 acres, and the court doth find that the petition is signed by the owners of 18,884 acres.
"The court further finds that a remonstrance to the formation of said proposed district has been duly filed, and after taking up and considering the same all remonstrance to the formation thereof is hereby overruled.
"It is therefore duly considered, ordered, and adjudged that after the change in the boundaries of said proposed district by excluding the one hundred and eighty acres aforesaid, that such petition is signed by the owners of a majority of all the acres of land, within the district as so changed, and the court doth further and hereby make an order incorporating the said special road district as `Southard-Drew Special Road District, Laclede County,' and that the boundaries of such district as established hereby shall be as follows (boundaries omitted)."
Then follows an order appointing three commissioners as required by Section 10835, Revised Statutes 1919, two of whom had signed the remonstrance. *392
Over the objection of the appellants that the record of the county court speaks for itself and is the best and only evidence of its action in the premises, relators offered evidence by Frank Hill, Clerk of the County Court, tending to prove that Mr. L.C. Mayfield, attorney for the remonstrants, asked the court not to consider those who signed the petition and afterwards signed the remonstrance. Witness continued: I suppose there was an agreement reached as to who should be appointed commissioners; that is the way I understood it. Johnson and Munson, two of the remonstrants, were appointed. I did not hear them come to an agreement as to leaving out certain land, nor as to who would be appointed commissioners. The land left out was a part of Tom Johnson's, who was not a petitioner. The acres in the petition were totaled; can't say as to the remonstrance, whether the number on the remonstrance was totaled, or whether it was the remonstrators who had signed the petition.
Other evidence of the same character was offered. Relators also read in evidence the petition for the formation of the district and the remonstrance.
For the appellants, J.W. Borrow, prosecuting attorney, testified: I was present when the matter was heard. Mr. Mayfield represented one side; Mr. Curry, the other. Mr. Mayfield had a map of the district; he marked out around Johnson's farm, and the proposition was that if that farm was taken out there would be no further objection. Judge Wilson asked if that was right and I believe Mr. Mayfield said yes. Two or three who were standing there answered yes and it was so understood and the order was made. I think they figured up to see how many acres were owned by those who signed the petition and afterward signed the remonstrance. I asked the court if they had enough acreage in it after they took those fellows out and they said they had. I think the clerk figured it up and gave that information to the court. *393
A.W. Curry testified to the same effect. Some of the remonstrants who had signed the petition asked the county court to disregard their names on the remonstrance.
In rebuttal, L.C. Mayfield testified: I pointed out to the court the persons who signed the remonstrance and who had previously signed the petition. I was not present when the court made the order incorporating the district. I had no agreement with Mr. Curry or anybody else to withdraw the names of any remonstrators. Other witnesses corroborated Mr. Mayfield.
At the conclusion of the evidence, the court sustained a motion by the appellants to strike out the oral testimony offered at the trial of the case. Thereupon the relators tendered a demurrer as follows: "The court declares the law to be that, under the pleadings and the evidence in this case, the judgment must be for the relators and against the defendants, dissolving said road district and ousting the defendants from their claimed offices as commissioners of said road district." The court gave said declaration and the defendants excepted.
I. It appears from the foregoing that the petition, containing every necessary averment, was filed and notice given conforming in all respects to the requirements of Section 10834, Revised Statutes 1919, and that a remonstrance was also filed. The statute reads, in part:
"On the first day of said term of court, or as soon thereafter as its business will permit, the court shall hear such petition and remontrance, and shall make any change in the boundaries of such proposed district as the public good may require and make necessary, and if after such changes are made it shall appear to the court that such petition is signed or in writing consented to by the owners of a majority of all the acres of land within the district as so changed, the court shall make an order incorporating such public road district and such *394 order shall set out the boundaries of such district as established. If no remonstrance shall have been filed, or all remonstrances filed are overruled by the court, the court shall determine whether such petition has been signed by the owners of a majority of the acres of land in the district, and if so, shall make an order incorporating the district with the boundaries given in the petition, or with such boundaries as may be set forth in an amended petition signed by the owners of a majority of the acres of land affected thereby."
When the petition was filed and notice given, the county court was invested with jurisdiction to act in the premises as authorized by the statute. [Reeves v. Green,
II. Realtors do not charge fraud in the procurement of the order incorporating the district. Such a charge must be clear and distinct. The gravamen of the charge is that the court counted the signatures of persons on the petition who afterwards signed the remonstrance and knew from its own information and calculation that the petition was not then signed and in writing consented to by the owners of a majority of the acres of land in said territory. There is nothing in the record of the order of incorporation indicating the action of the court in this respect. If the court erred therein it was an error of law or fact. It is not charged that it was done fraudulently. In the absence of such charge, the record of the county court, reciting its findings authorizing the order of incorporation, is conclusive in a proceeding of this nature. [Fitzgerald v. DeSoto Special Road District, 195 S.W. (Mo.) 695, 697; State ex inf. Talbot v. Drainage Dist., 238 S.W. (Mo.) 446, 449.] If the court erred in its calculations, or in failing or refusing to exclude from the signatures to the petition the names of persons who afterwards signed the remonstrance, such action being judicial, *395
its error, if error was committed, in the rendition of the judgment, cannot be brought to this court for review by the writ of quo warranto. [State ex inf. McAllister v. Drainage Dist., supra, l.c. 62.] Quo warranto, like certiorari, is a direct attack upon the sufficiency of the record and is not available as a writ of correction or review, nor a substitute for an appeal. [State ex inf. Crow v. Fleming,
III. The learned trial court, therefore, properly struck out all the oral evidence admitted over the objection of the appellants tending to prove either error of fact or law in the proceeding culminating in the order of incorporation. We say this was properly excluded, because there was not a tittle of evidence tending to prove fraud in the concoction of the judgment even if it had been properly charged. The case then stood solely upon the record of the county court incorporating the district. It is not suggested that there was any failure in the petition, notice or recitations of the judgment of the court to meet the requirements of the statute. No point is made on changing the boundaries of the district. In State ex inf. Killam v. Colbert,
For the reasons indicated, the judgment is reversed. Railey,C., not sitting.
Addendum
The foregoing opinion of HIGBEE, C., is hereby adopted as the opinion of the court. All of the judges concur.