State ex rel. Smart v. Wilson
99 Mo. App. 675
Mo. Ct. App.
1903
Check Treatment
ELLISON, J.

The facts necessary to state for a' determination of this appeal are as follows:

A proceeding was begun under the provisions of section 9742, Revised Statutes 1899, to change the boundary line of school districts in Sullivan county. One district voted in favor of and the other against the change. An appeal was taken to the county school commissioner, as provided in such statute, when he appointed a board of arbitrators who decided in favor of the change. Whereupon a writ of certiorari was issued from the circuit court of that county requiring the record and proceeding to be certified to that court for further disposition. There was an agreed statement of facts which was accepted as the return to the writ. The court dismissed the petition and respondents therein were discharged. Whereupon, relators appealed to this court.

*678The question presented here relates to the validity of the proceeding before the school commissioner and the board.of arbitration. The statute aforesaid provides that when it was desired to form a new school district out of the territory of other districts, or to change the boundary line of districts, a petition should be presented to the district clerks of the districts affected, who are required to give fifteen days notice before an annual meeting, when the question shall be submitted to the voters there assembled. The statute further provides: “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 district to be divided, each part voting separately, the district or districts shall be' deemed formed or the boundary lines thus changed from that date; but if all the districts, or parts of districts-affected do not- vote in favor of such change, the matter may be referred to the county commissioner; and upon such appeal being filed with him, in writing, within five days after the annual meeting, he shall appoint four disinterested men, resident taxpayers of the county,, who, together with himself, shall constitute a board of arbitration, whose duty it shall be to consider the necessity for such proposed change and render a decision thereon, which decision shall be final. "When there is an equal division the county commissioner shall give the casting vote. The commissioner shall at the time of the appointment of these members of this board of arbitration notify them to meet him at some convenient place in the county within fifteen days after annual school meeting where the deliberations of the board shall take place and its decision be rendered. But in-making such change, the decision in all cases shall conform 'to the propositions contained in the notices and voted upon at the annual meeting; and the county commissioner shall, on or before the last day of April, transmit the decision to the clerks of the various districts interested, or to the clerk of the district divided, *679and said clerk or clerks shall enter the same upon the records of his or their respective district or districts; and the said board of arbitration shall be allowed a fee of fifteen dollars, to be paid by the district or districts taking the appeal at the time said appeal is made: Provided, however, that no new district shall be created or boundary line changed by which any district shall be formed containing within its limits by actual count less than twenty pupils of school age, or by which any district shall be left containing within its limits by actual count less than twenty pupils of school age.”

The annual meeting was held on Tuesday, April 1, 1902, and, as before stated, the school districts did not vote alike on the proposition submitted. The appeal was taken on the 7th day of April, which was the following Monday.

The first question to be disposed of relates to the appeal to the county school commissioner. The statute (subdivision 4 of section 4160, Revised Statutes 1899) is as follows: “The time within which an act is to be done shall be computed by excluding the first day and including the last, if the last day be Sunday it shall be excluded. ’ ’ The day the vote was taken was Tuesday the 1st of April. The last of the five days allowed for 'an appeal was Sunday. Therefore, under the plain words of the statute it must be excluded from the count of time. Evans v. Railway, 76 Mo. App. 468. The position of counsel for relator amounts to an insistence that in computing the time when the last day limited is-Sunday you must include that day, when the statute is that you must exclude it. We endeavored to make this: plain in the case just cited ahd had not heard it questioned till now. We therefore hold that the appeal was taken in time.

The next question is as to the validity of the proceedings before the board of arbitrators. Several points have been made against the proceedings which merit serious consideration, but we need only consider one. The stat*680ute requires that the commissioner ‘‘ shall appoint four disinterested men, resident taxpayers of the county, who together with himself, shall constitute a hoard of arbitration,” etc. As stated above, the commissioner did appoint arbitrator's. He certified to the district court that, “the following voters, James Talbert, Henry Richmond, J. P. Painter and Bruce Woodard were appointed who after hearing the evidence in the case, the said board decided in favor of petitioners and granted their prayer, ” etc. It does not appear from this that the commissioner complied with the statute. It does not appear the arbitrators were disinterested resident taxpayers. If we may assume from the fact of their being “voters” that they were residents of Sullivan county, yet, we can not assume that they were taxpayers. It is fundamental that however informal the proceedings of an inferior judicial tribunal may be, the fact that it is such inferior tribunal makes it necessary that the record of its proceedings should show such facts as give it jurisdiction. The cases on this- subject are reviewed in a recent opinion by Judge Marshall in Sutton v. Cole, 155 Mo. 206. A tribunal composed] of arbitrators who were not taxpayers would be illegal, and as we can not assume anything in favor of the jurisdiction we must hold the proceeding to be void. This has been held in proceedings instituted by petitioners for the condemnation of a public road (C. & R. I. Railroad v. Young, 96 Mo. 39); and for obtaining a dramshop license (State ex rel. v. County Court, 66 Mo. App. 96).

We will therefore reverse the judgment and remand the cause with directions to the circuit court to ■enter judgment quashing and annulling the proceedings of the board of arbitration in the premises.

All -concur.