| Mo. | Mar 15, 1905
This is a proceeding under the statute in the nature of a quo warranto, instituted by the prosecuting attorney of Jefferson county, at the instance of a citizen, to oust the defendants from the position of school directors of school district No. 5, townships 39 and 40, ranges 5 and 6, of said county. The real question in the case is whether said school district was ever legally organized. On the one hand it is claimed by the defendants that said school district was legally made up, by taking parts of four contiguous school districts and forming said parts into a new district, and on the other hand the relator claims that the prerequisites and proceedings provided by statute for the formation of a new school district, by severing the constituent parts from existing districts, were not complied with.
The circuit court ordered judgment for the defendants, and the relator appealed to the St. Louis Court of Appeals, and that court certified the case to this court on the ground that this court has appellate jurisdiction ■of the case.
I.
The petition was filed by the prosecuting attorney of Jefferson county, at the instance of Mitchell McCormack, a resident taxpayer of the district to be formed. It is, therefore, a proceeding in the nature of a quo warranto or statutory quo warranto, such as is provided for by section 4457, Revised Statutes 1899, and not a quo warranto ex officio. The statute requires the prosecuting attorney to file such a proceeding when requested by an interested citizen, and forbids the prosecuting attorney from dismissing or discontinuing it without the consent of the person who set it in motion. It is, therefore, such a proceeding as the court may entertain or refuse to entertain according to a wise judicial discretion, and is not a common law quo warranto which may be filed ex officio by the Attorney-General or prosecuting attorney without leave of court. The
II.
The petition is bottomed upon the predicate that the defendants have no right to hold the office or place of directors of school district No. 5, townships 39 and 40, ranges 5 and 6, not because they have usurped or intruded themselves into office or wrongfully hold or execute such office, but because there is no such school district legally existent, and hence there is no such office. No claim is made that the defendants were not legally elected to, and rightfully exercise the powers of, the office or place or franchise of school directors of said district if there is such a district, but on the contrary it appears from the petition and the return and the agreed statement of facts, upon which this feature of the case was submitted to the court, that such is the fact; that relator voted for them for such office and in truth induced one of them to become a candidate therefor.
This being true there is no question in this case that the defendants are entitled to hold the office, if there is such an office, and the question then arises at once whether the existence of such an office can be called in question in this proceeding, or whether the quo warranto should be directed against the school district itself.
The general rule in England and this country is thus laid down in 23 Am. and Eng. Ency. Law (2 Ed.), p. 622:
“Public or Municipal Corporations. It is sometimes held that quo warranto proceedings to oust a de facto public or municipal corporation from its corporate franchise may be brought directly against the corporation in its corporate name. But the better opinion seems to be that where the proceedings are based upon an original lack of authority the proceedings must be*414 against the individuals who unlawfully assume to he a municipal corporation, while in cases of forfeiture, or the usurpation of particular franchises, the proceedings should he against the corporation as such. This is the rule as to private corporations, and there seems to be no reason for any distinction. Sometimes it has been held that the question of corporate existence could be tried in proceedings against the officers of the municipality. But in the absence of statutory authority for such a proceeding, while corporate existence may be determined as an incident to the trial of the right to exercise a municipal office, the judgment is not binding upon the corporation. Quo warranto to test the right of a legal municipality to exercise jurisdiction over certain territory, as in cases of attempted extension of corporate limits, may be brought directly against the municipality, but when the right to exercise jurisdiction over territory depends upon the legality of an organization as a municipal corporation, the individuals assuming jurisdiction are the proper defendants according to the usual rule already stated.
“Private Corporations. It is usually held that quo warranto proceedings to oust from a corporate franchise must be brought against the individuals charged with the unlawful use of the franchise, instead of against the corporation, and it is said that the effect of bringing the proceedings against the corporation in its corporate name is to admit the corporate existence. This rule seems correct in principle where the exercise of corporate franchises is wholly unauthorized from the beginning. Where, however, there was originally a corporate organization, and it is sought to enforce a forfeiture, or where it is sought merely to oust a corporation from the exercise of particular franchises unlawfully assuméd, the proceedings must be against the corporation and not merely against its officers, agents and stockholders.”
This case attacks the legality of the organization of the school district, and hence was properly brought against the defendants as individuals.
III.
The relator contends that the school district was not legally organized, because three of the districts, from which parts were to be severed, voted against the establishment of the new district, conceding that the fourth district from which a part was to be severed voted in favor of it, the proposition was defeated by the vote of a majority of the districts to be affected, and that no appeal was taken to the county school commissioner by the district which voted in favor of the proposition, but that the appeal was erroneously and improperly taken by the ten qualified voters of the district to be established, and therefore the county school commissioner, had no jurisdiction to proceed in the matter.
The facts are as above stated, and the solution of the question depends upon a construction of section 9742, Revised Statutes 1899. That section provides that when it is deemed necessary to form a new district, to be composed of two or more entire districts, or to divide one district to form two new districts from the territory therein, or to change the boundary lines of two or more districts, ten qualified voters residing in any district affected thereby may file a petition for that purpose with the district clerk of each district to be affected thereby, and such district clerks shall post a notice of the desired change, in at least five public places in such districts, fifteen days prior to the annual meeting, and the voters when assembled shall decide such question by a majority vote. “If the assent to such change be given by all the annual meetings of the various districts thus voting, or of the part of the dis
It is clear that if the case is one to divide an existing district so as to form two districts and the part to be thus taken votes for the proposition,- there could be no appeal, under relator’s contention, for in such case the district would not appeal and there would be no other district in existence to appeal. Yet it is perfectly manifest that the statute contemplates an appeal in any case, and in such an instance there would be no one to take an appeal except the ten voters who petitioned for the new district.
But whilst this illustration is sufficient to overcome the relator’s contention, there is yet a broader ground to rest an adverse decision upon. The statute allows an appeal when the existing districts, from which parts are to be severed to make up a new district, do not agree to such a proposition. It does not specify who shall make the appeal. It simply says if the districts or parts of districts do not vote in favor of the change,
The contention of the relator is therefore untenable.
IV.
The relator next contends that the arbitrators were not sworn, and that the witnesses were not sworn, and hence their decision is void.
It is a sufficient answer to this to say that the stat
The statute in reference to arbitrations (chap. 71, sec. 4824) requires arbitrators to be sworn. But that is a code unto itself, and so is chapter 154, section 9742, relating to the formation of school districts, a code unto itself, and as there is no legislative intention apparent that the two shall be construed together, and as they are not in pari materia, the courts can not so construe them, nor can they write into the statute any additional qualifications for a board of arbitration in such school district matters.
This contention must also be held untenable.
V.
Relator further contends that the districts affected did not disagree upon the proposition, and hence the county commissioner had no jurisdiction to proceed, because whilst the fourth district, to-wit, District No. 1, Township 39, Range 5, cast ten votes in favor of the proposition and eight votes against it, nevertheless a majority of the qualified voters of the district did not vote in favor of the proposition, because three votes in favor thereof were cast by persons who were not entitled to vote, to-wit, Rev. J. M. England, the pastor of the Methodist Episcopal Church, South, who resided in the parsonage building at Plattin Station, which was in range 6 and not in range 5; Frederick Mathews, who was not a citizen of the United' States, having been born in Germany, and who was brought to this country when about three years old, by his father,( and neither he nor his father were ever naturalized, but he voted because he had been a soldier of the United States during the Spanish War, and thought, therefore, that he
The testimony shows that Eey. Mr. England did not reside in .the district, hence his vote in favor of the change was improperly cash But in this connection it is only proper to say that he thought he resided in the district, and that it took a survey to determine whether he did or not, and hence he did not knowingly or intentionally vote improperly.
As to Mathews, the testimony shows that the facts are as charged, and that he was not entitled to vote, although he honestly believed that he was. But there is no evidence in this record that he voted in favor of the proposition. The testimony is that he could not remember whether his vote was for or against the proposition, and there is no other testimony on that point in the record. The relator, therefore, failed to prove this contention, and did not offer sufficient evidence to overcome the official and otherwise conceded majority of the district in favor of the change.
This contention must, therefore, be decided against the relator.
This disposes of the case made by the relator. It is therefore, unnecessary to consider the defenses interposed by the defendants. The judgment of the circuit court was in favor of the defendants, and it is-right, and is therefore affirmed.