158 Mo. 558 | Mo. | 1900
Since tbe opinion of tbis court on tbe motion to strike out from informants’ reply certain allegations of facts therein stated, reported in 147 Mo; 1, and tbe further action of tbis court, in denying informants’ application to have tbe city of Webster Groves made a party to tbis cause, made after the case was argued and submitted upon its merits, but little now remains to be said. Eor a full history of tbe case and tbe records of tbe proceedings, reference is made to tbe statement accompanying tbe opinion on tbe motion to
From the testimony taken, it appears that a petition purporting to be signed by a majority of the taxable inhabitants of the unincorporated town of Webster Groves was presented to the county court of St. Louis county, in which the metes and boundaries of the town were set out and defined therein,
While this court in disposing of the motion to strike out part of informants’ reply, in its opinion supra> did assume that the action of the county court, in making its order incorporating the city of Webster Groves under the facts as charged in informants’ petition, was subject to direct attack through the medium of the writ of quo warranto, and that quo warranto was the proper method of procedure, in a case of the character charged, it did not hold, nor ©an the faintest impression be drawn from what was said therein, that under a state of facts such as was disclosed by the testimony taken, the writ of quo warranto, or for that matter, any other writ or process known to the law, is adequate to relieve against the order and judgment as entered at that time by the county court.
That order and finding of the county court under the circumstances made, is final and conclusive, binding alike upon this and all other courts. That court, in such inquiries, is the agent of the State, exclusively authorized and empowered to ascertain and determine those very facts, and the State, through its Attorney-General, or its prosecuting attorneys of the different counties of the State, can not question
In cases of that character a judgment is declared void and of no- -effect for the reason and upon the theory, that fraud having entered into it, as into any other transactions of life, vitiates its integrity, destroys its validity; because the apparent is not what it appears; because the pretended is not the reality.
Under those facts we would have uq legal judgment of incorporation, hence no legal officer of the pretended corporation, and a writ of ouster under the inquiry by quo warranto would go again'st those making the assumption. But quite different is the situation where the attempt is- to show that the judgment as entered ought never to have been made; that the corporation ought never to have been created, because the court having before- it the facts and law for determination, erroneously’construed their force and meaning.
Informants- further contend that the order of the county court incorporating the city of Webster Groves is void for the additional reason, that said order incorporated within the limits of said city large tracts- of territory not included within the- limits of the original unincorporated town of Webster Groves, and because some of said tracts so included contained many -acres of land used for pasture and farming purposes. While the testimony shows that the city of Webster Groves as incorporated by the county court did include tracts- of land not embraced in the original subdivision of Webster Groves, as evidenced by the recorded plat thereof filed forty odd years ago, it also discloses the fact that all these tracts of land lying-adjacent to old Webster Groves, and that were included
While it is true that the county courts of our State have no right to incorporate farming or -agricultural lands, as such, into cities or towns, as was- attempted in the McReynolds case, supra, yet lands used for agricultural purposes- solely, may become so surrounded and connected with lands used for town and city purposes, as to be and constitute a part thereof, so that the incorporation of the town or city would, as a-necessity, include within its- natural boundaries such lands, and this court has three -times held since the opinion in the McReynolds case, supra, that the inclusion of small tracts of agricultural lands within the corporate limits of the unincorporated town would not o-pe-rate -to defeat the corporation thus created. [State ex rel. v. Campbell, 120 Mo. 396; Burnes v. Edgerton, 143 Mo. 563, and Copeland v. City of St. Joseph, 126 Mo. 417.]
We think that the county court properly-determined that the few weeds in an occasional calf lot, and the scattered com hills of ithe truck patches here and there found, were inadequate to hide from view the aggregation of houses- and improvements embraced within the boundaries of the territory it was called upon to and did incorporate as -a city.
It would be impossible to read' the testimony in this case and not be impressed with the belief that the ultimate use of every foot of land included within th-e corporate limits of the city of Webster Groves as incorporated by the county court, would be for city purposes; that its present value is estimated upon its now or its prospective use- for such purposes, and not as fanning lands. Its close proximity -to the great- city of St. Louis; the surrounding suburban neighborhoods in every' di
This brings us to the consideration of informants’ last charge, that the ordinance of the so-called city of Webster Groves extending its corporate limits is void for the reason as set out in the information, that it was not approved by a majority of the qualified voters of the so-called city of Webster Groves, and second that it is unreasonable, in that it undertook to and did include large tracts of farming and agricultural lands within its extended limits. Passing without comment the question whether under our statute authorizing writs of quo warranto to issue, it is availing tó test the validity of an ordinance passed by a city in the exercise of a rightful power, such as the extending of its corporate limits, we find ourselves confronted with the fact that the writ herein has been directed alone against William S. Fleming as mayor and the other respondents as board of aldermen of the so-called city of Webster Groves, and not against the city itself, its such. In fact the writ against the city by its corporate name would have defeated the primary object of informants, to have tested the validity of the order of the county court-incorporating the city of Webster Groves.
To have made the city a party defendant, as informants by motion sought to have done after the cause upon its merits had been submitted to the court, in order that an inquiry might properly be made into the charge that it had abused its franchise or usurped powers and liberties not lawfully possessed, such as the incorporation of territory over which it had no control, would have been a recognition of the lawful existence of the very corporation which the informants by the pro
The proceedings in this case against the individual respondents and against the city would have been inconsistent. The city not being a party, the question as to the alleged exercise by it of an unlawful power as charged by informants could under no circumstances be here inquired into. When the proceeding is to restrain a corporation from the unlawful exercise of a franchise to it belonging, or to oust a corporation from the exercise of a franchise which it usurps, it must be against the corporation itself, and not against its officers.
Eor the foregoing reasons the ouster should be denied and the writ dismissed, and it is so ordered.