61 Mo. 203 | Mo. | 1875
delivered the opinion of the court.
’This is an- information in the nature of a quo toarranlo filed in the Bates circuit court by the circuit attorney of said circuit, to inquire into the authority by which the defendants claimed to exercise and were exercising the powers and duties of trustees of the town of Butler, in said county.
The petition was'filed on the 21st day of June, 1873, and averred that the defendants, without the authority of law, were exercising and usurping the rights and duties of trustees of the “ Inhabitants of the Town of Butler,” in the county
The defendants admit, by their answer, that they are exercising and performing the duties of the office of trustees of the “Inhabitants of the Town of Butler,” in Bates county, Missouri. They aver that said town had been and was duly incorporated under and by virtue of the 41st chapter of the General Statutes of Missouri, and that they had been duly elected as trustees for said town and had qualified as such trustees, and were lawfully exercising the duties imposed on them as such trustees, setting out in detail all and each of the acts done by the inhabitants of said town, and of the county court of said county, in the incorporation of said town, as well as their election to the office of trustees for said town.
The facts of the case, as shown by the records, are substantially as follows: On the 12th day of June, 1872, the town of Butler, in Bates county, as the same was laid out in lots, streets, etc., and a plat thereof filed in the recorder’s office of said county, comprised between two hundred and fifty and three hundred acres of land, and was of an irregular shape. On said day two-thirds of the inhabitants of said town and of a portion of the adjoining country, containing in all about twelve hundred acres of land, petitioned the county court of Bates county to incorporate said district of country and the inhabitants thereof (which included the platted town of Butler), the metes and bounds of which were described in said petition. The boundaries of the country so described, as well of the said town as laid out and platted, will be' more fully shown by the following map or plat thereof.
The county court, in accordance with the prayer of said petition, made an order incorporating said district of country, and the inhabitants thereof, in conformity to the act of the legislature in such cases provided, said order of incorporation being in regular form.
It further appears that a considerable portion of the country included in the metes and bounds of said town as thus incorporated consisted of farms and farming lands, a portion of which were the lands of the relators. That two-thirds of the taxable inhabitants petitioned the county court for the order of incorporation is not questioned, nor is it questioned that defendants were elected as trustees of the district so incorporated, provided the incorporation was legal, and the inhabitants had a right to elect trustees for said town. The def«nd
“If the court finds that a petition signed by two-thirds of the tax payers, citizens of the town of Butler, praying for an order incorporating the town of Butler and district of country-surrounding said town, embracing 1,200 acres of land, three-fourths or four-fifths of which 1,200 acres of land is held, occupied and used exclusively'for farming and agricultural purposes, and that onlyr about 260 or 280 acres of the 1.200 acres were at the time included within the said town of Butler, and all its additions, the county court upon such a petition could not, under the statute, incorporate by its order any of the said district of country outside of or beyond the limits of the town and its additions, there being no commons belonging to said town ; and the defendants when acting as town trustees outside of said town and its additions, though it be inside of said district of country', are acting without any warrant of authority and contrary to the statute in such case made and provided.”
2d. “If the relators are not residents of the said town of Butler, but farmers living about one-fourth of a mile outside and beyond the town of Butler and all of its additions, neither their lands on which they reside, nor their personal property there* on, nor themselves while residing there, can, under the statute, (ch. 41. Gen. Stat.) be subjected to the regulations and by laws of an incorporated town, and compelled to pay corporation tax. And although the said farms of relators may have been embraced in an order of the Bates county court, purporting to incorporate the said “ town of Butler and district of country,” any action of said defendants as town trustees by
3d. ‘‘ The district of country described in the (petition) information, not being a part of the town or village of Butler, nor of its additions or commons, but farms, could not be incorporated under the General Statutes, chapter él, and defendants have no authority as town trustees, within said district of country, any more than they would have in any other district of country, or in any other part of the county.”
These declarations of law were refused by the court, and the plaintiffs excepted. The court then made a very long declaration of law on its own account. It will, however, only be necessary to copy the following portion thereof in order to show the view of the law upon which the case was decided :
“The court declares the law to be, that if it appears from the pleadings and evidence in the cause that the county court of said Bates county, upon a petition of two-thirds of the taxable inhabitants of said town, adjudged the same incorporated, designating the metes and bounds, including the said town and its additions, then said judgment of incorporation is not void, notwithstanding the metes and bounds specified may include a larger territory than is included in the original town and its additions. And if it appears from-the pleadings and evidence that defendants have been duly elected and qualified as such trustees of the said town of Butler, and are acting by authority arising from said incorporation and in the fulfillment of their offices as such trustees, then they have not usurped or intruded into, nor do they unlawfully hold and execute the said office of trustees within the said town of Butler, and the court will not in this proceeding of quo warranto declare or adjudge whether they are or are not unlawfully exercising jurisdiction outside of said town as originally laid off, and its additions and commons. Such matters must be determined in other proceedings than the present.”
The questions presented by the record in this case for the consideration of this court are, whether the county court of a. county can by virtue of the act of the legislature, concerning the incorporation of towns and villages (Wagn. Stat., Ed. of 1872, p. 1314) incorporate a district of country, including-a considerable portion of farming country adjoining to and surrounding a town or village, and in which said town is included. And if such a .corporation cannot thus be created, whether quo warranto is the proper remedy against persons who are assuming and exercising offices under the supposed powers of such corporation.
The first section of the act before referred to, among other things, provides that “ whenever two-thirds of the inhabitants of any town or village within this State shall present a petition to the county court of the county, setting forth the metes and bounds of their village and commons, and praying that they maybe incorporated and a police established for their local government, and for the preservation and regulation of any commons appertaining to such town or village, and the court shall be satisfied that two-thirds 'of the taxable inhabitants of such town or village have signed such petition, and that the prayer of the petitioners is reasonable, the county court may declare such town or village incorporated, designating in such order the metes and bounds thereof; and thenceforth the inhabitants within such bounds shall be a body politic and corporate, by the name and style,” etc.
It would seem from the foregoing portion of the statute that power is only given to the county courts to incorporate towns and villages and their commons ; that no power is conferred on county courts to incorporate a farming country not constituting a part of the town or village or the commons belonging thereto. To understand what is included in or com
It is shown by this section that by the word “ commons” as used in both this act and the act previously inferred to, is meant lands included in or belonging to a town set apart for public use, and in fact the natural import of the word when used in connection with or with reference to towns and villages, is public grounds belonging to or appurtenant to the town or village. The word “commons,” as used in the statute, was certainly never meant to include the farms and farming lands óf individuals, who happened to reside and own lands in the vicinity of a town or village. It, I think, follows that the county court under the act of the legislature first referred to, only had power to incorporate towns and villages as laid out and surveyed into lots, streets, alleys or other public grounds and commons belonging thereto, as laid out and designated for public uses, and that any attempt by the county court, to incorporate the farming lauds of the country, even in the vicinity of a town, would be wholly without authority and inoperative.
It will be seen from the instructions given and refused by the circuit court that the judge of that court acted on the assumption that the action of the county court in making an order attempting to incorporate the town of Butler, together with about 1,000 acres of the adjoining farming country, might be illegal and void as to the said farming lands, but
It will be seen that the inhabitants of this entire district of country petitioned the court for an order of incorporation, and that the conrt finds that those petitioning constitute two-thirds of the taxable inhabitants, arid attempts to incorporate the entire district. How can we say that the court intended to incorporate or ever would have incorporated simply the toAvn of Butler as platted and recorded in the recorder’s office, and hold that the order of incorporation is valid to that- extent ? It may be that the court never would have incorporated the town without the adjoining country, and it may be that the petitioners would not have desired an act of incorporation if only the town proper had been included, and no power obtained to tax the adjoining lands included in the metes and
In the case now under consideration there was no mistake made — no false description. The metes and bounds included and were intended to include over 900 acres of farming lands, which it was not pretended were included in or formed part of any town or village. The county court had no right or power to make any such'order of incorporation, and we cannot sav that the court intended to incorporate or even would have incorporated the town with metes and bounds only including the town proper. It is not denied that the legislature of the State might include such adjoining lands within the corporate limits of a town incorporated by it, where such act did not contravene any constitutional prohibition. (Giboney vs. Girardeau, 58 Mo., 141, and cases cited.)
The remaining question is, whether quo warranto is the proper remedy in cases like the present one ? In the case of the State vs. Coffee (59 Mo., 59), it was held by this court that “ where the town corporation claims an organization and existence under it, quo warranto will lie against an individual for usurping the office of mayor, and in that proceeding the question of the corporate existence of the town can be tried and passed upon.” That seems to settle the second point in this case also in favor of the plaintiff.
The declarations of law as asked for by the plaintiff’were improperly denied.
The judgment must be reversed and the case remanded.