State ex rel. Chandler v. Huff

105 Mo. App. 354 | Mo. Ct. App. | 1904

BLAND, P. J.

(after stating the facts as above).

1. The contention of relators is that having, in May, 1871, exercised its jurisdiction to incorporate the village of Ash Grove, the county court was thereafter without jurisdiction to again incorporate it, and especially so while the original order of incorporation was in force. This exact question was passed on by this court in State ex rel. v. Young, 61 Mo. App. 494, where the court said: “Under the existing statute (Revised Statutes, 1889, chapter 30, article 1), there are two modes of incorporating cities, towns or villages, based on different conditions. If the city or town has been previously incorporated, the county court has no authority or jurisdiction over the proceedings for the change from the existing organization to the new. To effect a change in such a case, the municipal authorities must pass an ordinance to that effect and submit it to the legal voters of the city or town, and, if it is ratified by a majority of the.voters voting at such election, it then becomes the duty of the mayor to issue his proclamation declaring the result. This completes the incorporation.” To avoid the force of this decision the respondents sought to show by the evidence, de hors the record, that the first order of incorporation was a nullity, and were permitted by the court to i ntroduce evidence tending to establish its nullity. The order incorporating the village was a judgment having the force and effect of any other judgment rendered by a court of competent jurisdiction. State ex inf. v. Fleming, 147 Mo. 1; State ex inf. v. Fleming, 158 Mo. 558. For this reason the order of incorporation was not open to collateral attack. Kayser v. Trustees of Bremen, 16 Mo. 90; State ex rel. Read vWeatherby, 45 Mo. 17; State v. Evans, 83 Mo. 322; Macey v. Stark, 116 Mo. l. c. 494; Leonard v. Sparks, 117 Mo. l. c. 108. If, however, as the respondent contends, the order of May 8, 1871, is void on its face, then it can not be said that the county court did at that time exercise its jurisdiction to incorporate the village of Ash Grove, for an order or judgment of a court that nullifies itself is as though it had never been entered, and jurisdiction in the county court would remain, notwithstanding the void order of May 8, 1871, incorporating Ash Grove as a village.

Respondents say the description of the commons in the order of May 8, 1871, as “westerly,” is so indefinite and uncertain as to make the description of the territory attempted to be incorporated void. If the word “westerly” is construed to mean due west, then the description is not indefinite but is definite and certain. In Bosworth v. Danzien, 25 Cal. 296, it was ruled: “The term ‘northerly’ when used in a grant or conveyance, unless controlled by monuments in the description, means due north.” In Brandt v. Walton, 1 John. Rep. 156, it was held: “The term ‘northerly’ in a grant, where there is no object mentioned to direct the inclination of the course toward the east or west, is construed to mean due north.” In Jackson v. Clark, 3 Caine’s Rep. *293, it was said that when “the courses are northward, southward, eastward, and westward, it is a settled rule of construction, that when courses are thus given, you must run due north, south, east and west.” That the word “westerly” in the description of the territory incorporated, should be construed to mean due west, we think is supported by both authority and reason. We are, therefore, forced to the conclusion that the order incorporating the town on May 8, 1871, is not void upon its face. This leads to the conclusion that the county court of Greene county was without jurisdiction to make the order of January 1, 1884, incorporating Ash Grove as a city of the fourth class.

2. But the city of Ash Grove is not made a party defendant. In State ex rel. v. Coffee, 59 Mo. 59, it was ruled that quo warranto would lie to oust the respondent, who was holding the office of mayor of the town of Knobnoster, on the ground that the special act of the Legislature incorporating the town was void. But it does not appear in that case that the proceeding was commenced for the sole purpose of testing the validity of the corporation. In Reg. v. Jones, 8 Law Times Rep. (N. S.) 503, and in Williams v. Sacramento County, 58 Cal. 238, the proceedings in each case were brought against the officers of the municipal corporation and the municipality was not made a party defendant, and it appeared from the complaint that the real purpose of the proceeding was to test the legality of the municipal charter. It was held that the municipalities were the real parties in interest and necessary parties defendant, and the courts refused to permit the charters to be repealed by a judgment of ouster against the officers. Substantially the same ruling was made in the case of State v. Atlantic Highlands, 50 N. J. L. l. c. 458; Holloway v. Dickinson, 54 Atl. Rep. 529; State ex rel. Weinsheim, v. Leischer, 94 N. W. Rep. 299. High, in his work on Extraordinary Remedies, under title of “Quo Warranto,” at section 696, says: “The information will not lie against a municipal officer, as the mayor of a city, when the real purpose of the application is to test the legality of the municipal charter, since the courts will not permit a charter to be repealed in a proceeding directed, not against the corporation, but against an individual corporator or officer.” Unquestionably, the municipality is the real party in interest and for this reason is a necessary party and should be made a party defendant. Section 444, R. S. 1899. Nominally, this proceeding is to oust the defendants from their offices, but it is apparent on the face of the information, and put beyond doubt by the evidence offered at the trial by the relator, that the real object of the action is to deny to the city of Ash Grove the right to operate as a city of the fourth class by obtaining a judgment which, in effect, would repeal the order of January 1, 1884, incorporating it as a city of the fourth class; no other cause is attempted to be made against the respondent except as it is made through the invalidity of the charter. The sole purpose then of the proceeding is to test the validity of the charter. We think it is indispensable that the proceeding should have been brought directly against the city and that the trial court for this reason, if no other, rendered the proper judgment.

3. The old English cases fixed a period of twenty years as the limit in which an information to test the validity of a city’s charter might be filed. Subsequently the courts reduced the period to six years. Rex v. Dicken, 4 T. R. 282. This period was afterwards fixed by statute. 32 George III, ch. 58. In State ex rel. Town of Westport, 116 Mo. 582, it was held that twelve years, where the corporation had been operating and recognized by the courts and legislators of the State, was a sufficient period to estop the State on the ground of laches to call in question the validity of the charter. It seems to us that on grounds of public policy the period of limitation in which informations of this character may be filed should be fixed by statute. In the absence of such a statute the courts in the exercise of a wise discretion upon the grounds of public policy should, as was done in the Westport case and in the case of State ex rel. v. Town of Mansfield, 99 Mo. App. 146, refuse to repeal the charter of a municipal corporation which had stood unchallenged for a period of ten or fifteen years, when the municipality has acquired property and contracted debts and assumed jurisdiction over the streets and alleys of the city, and to preserve the public peace of the community. People ex rel. Hanker, 64 N. E. 253.

4. The corporation was not affected by section 108 Laws of 1895, p. 90, as contended by the relators. The meaning of that section is that the Act shall not have the effect to repeal municipal charters obtained under the laws repealed by the act. The section repeals the laws under which these charters were obtained, but does not repeal the charter themselves.

The judgment is affirmed.

Reyburn and Goode, JJ., concur.