State Ex Inf. Barrett Ex Rel. Newman v. Clements

264 S.W. 984, 305 Mo. 297, 1924 Mo. LEXIS 728

• Court: Supreme Court of Missouri
• Decided: September 18, 1924
• Status: Published

Opinions

DAVID E. BLAIR, J.

This is an original proceeding in the nature of quo warranto whereby relators seek to oust respondents from their alleged pretended offices as directors of three common school districts in Clay County. Said districts are alleged to be comprised within and to be part of Consolidated School District No. 1 of Clay County,'notwithstanding an alleged dissolution of such consolidated school district. Our writ to show cause issued, accompanied by our injunctive order restraining respondents in certain particulars not now important. Service of our writ was accepted by counsel for respondents, and their appearances entered in this court.

The common school districts of Clay County included in the consolidated-district prior to May 3, 1923, were Faubian No. 51, Big Shoal No. 65 (63), Englewood No. 64, Linden No. 63 (f) and Fairview No. 50. The respondents claim to be directors of Faubian, Big Shoal and Englewood common school districts, organized since such alleged dissolution of the consolidated district. Big Shoal district is referred to in the record both as No. 65 and No. 63, but that is of no importance now.

Separate answers and returns were filed by respondents. Relators’replies thereto were general denials. An issue of fact was thus raised, and Hon. Nick T. Cave, of the Callaway County Bar, was appointed by this court as its commissioner to take the testimony and report to the court. He has filed his report, and a complete transcript of the testimony taken by him.

The information and the answers and returns are quite lengthy. We are saved the necessity of setting out even the substance thereof, because of admissions made by counsel. The sole question for decision is whether or not Consolidated School District No. 1 of Clay County was legally dissolved or disorganized on May 3, 1923. The transcript contains the following statement of an agreement by counsel, to-wit:

"Mr. Hale : For the purpose of the record respondents would like for it to show that counsel for relators and respondents agree, that the dissolution election held in Consolidated School District No. 1 in Clay County, Missouri, at Linden in that district, on May 3, 1923, was regularly called in the manner and by the means provided by statutes, and that thereafter the several elections in Paubian District No. 51, in Big Shoal District No. 63 and in Englewood District No. 64, were all three called for re-organization purposes as set out in respondents’ return, were all duly held, and that if the proposition to dissolve Consolidated School District No. 1 duly carried at the election on May 3, 1923, then said school districts, Paubian, Big Shoal and Englewood, were and are duly organized common school districts, and respondents herein are the duly elected, qualified and acting directors of said common school districts.

“Mr. Wherritt: Relators admit that the foregoing statement of facts is correct, and that if Consolidated School District No. 1 of Clay County, Missouri, was legally dissolved on May 3, 1923, the respondents in this cause of action are the duly elected, qualified and acting directors of said common school districts.”

Other similar admissions appear in the transcript, but the foregoing is sufficient in scope for our purpose. Such admissions make it unnecessary for us to consider the various allegations of fraud, bad faith and force made against respondents by relators, or the sufficiency of any of the preliminary proceedings preceding the election on May 3, 1923, itself, or any of the subsequent proceedings, incident to the organization of the present Faubian, Big-Shoal and Englewood common school districts, or the regularity of the election of respondents as directors thereof.

We digress to say that it is apparent that the present lawsuit is by no means the first litigation arising since the organization of said consolidated school district. The organization itself was attacked by some of the present respondents. [See State ex inf. Simrall ex rel. Benjamin M. Clements v. Clardy, 267 Mo. 371.] The information in the case at bar alleges the pendency and final disposition of other suits. The various lawsuits indicate most serious factional differences among the residents of the consolidated district; Such differences have no bearing upon the question here at issue, but they shed an interesting sidelight upon the case.

The only queston left in the case; in view of the admissions, is this: Did two-thirds of the resident voters and taxpayers of such consolidated school district vote to dissolve such district? If they did, the lawsuit is ended in favor of respondents. If they did not so vote, the consolidated district is still in existence, organization of the common school districts was wholly unauthorized and a mere nullity, there are no offices of directors of such districts and respondents should be ousted from their pretended offices.

The statute governing disorganization or dissolution of consolidated school districts is Section 11242, Revised Statutes 1919, and reads as follows:

“Any town, city or consolidated school district heretofore organized under the laws of this State, or which may be hereafter organized, shall be privileged to disorganize or abolish such organization by a vote of the resident voters and taxpayers of such school district, first giving fifteen days’ notice, which notice shall be signed by at least ten qualified resident voters and taxpayers of such town, city or consolidated school district; and there shall be five notices put up in five public places in said school district. Such notices shall recite therein that there will be a public meeting of the resident voters and taxpayers of said school district at the schoolhouse in said school district, and at said meeting, if two-thirds of the resident voters and taxpayers of such school district shall vote to dissolve any such town, city or consolidated school district, then from and after that date the said town, city or consolidated school district shall he dissolved, and the same territory included in said school district may he organized into a common school district under Article III of this chapter. ’ ’

Admittedly the procedural steps outlined in the statute were duly and properly taken. The sole question is whether two-thirds of the resident voters and taxpayers of such consolidated school district voted at said meeting to dissolve said consolidated district.

The parties are in agreement (and such is our view), that the statute requires that two-thirds of all the taxpaying voters residing in the consolidated district, vote for such disorganization, and that it is not sufficient that two-thirds of those present .at the meeting and having such qualifications vote for such disorganization. [See State ex inf. Major v. Kansas City, 233 Mo. 162, 1. c. 189 and cases cited thereat.]

The word voter is readily and universally understood to mean a person who is legally qualified to vote for elective officers generally. The word taxpayer is probably not so generally or clearly understood. In State ex inf. Sutton v. Fasse, 189 Mo. 1. c. 536, a taxpayer is defined as “a person owning property in the State subject to taxation and on which he regularly pays taxes.” Such definition appears to be a very satisfactory one. Such voter and taxpayer must also reside in the consolidated school district and two-thirds of all such must vote to disorganize or dissolve the district before it is legally dissolved.

Regardless of where the burden of proof in the case rested, relators assumed same upon the hearing before our commissioner. Among other things, relators offered in ev'.dence the minutes of the meeting of May 3, 1923, duly signed by the chairman and attested by the secretary thereof. An affidavit signed by the same officials, which was filed with the County Clerk of Clay County, was also offered in evidence. It set forth the same facts as did the minutes of the meeting. Among other things, the minutes recited as follows:

“Whereupon said meeting proceeded to vote on said proposition by ballot; and the vote thereon being finished, and all the ballots cast thereat being counted, it was found by the officers of said meeting, and so declared, that three hundred ninety-four (394) votes were cast for the dissolution of said School District, and three (3) votes cast against the dissolution of said district, and that said proposition'duly carried by the votes of more than two-thirds of the qualified voters and resident taxpayers of said district. Whereupon the chairman declared said district duly dissolved. No further business appearing the meeting duly adjourned.”

It will be noted that the minutes recited that “said proposition duly carried by the votes of more than two-thirds of the qualified voters and resident taxpayers of said district.” That part of the recital we have italicized is clearly equivalent to “resident voters and taxpayers” as required by the statute. A person cannot be a qualified voter of the district unless he is a resident thereof.

The statute does not provide for the taking of any particular steps to evidence the disorganization or dissolution of a consolidated school district by the meeting provided for in the statute, other than that two-thirds of the resident voters and taxpayers vote for dissolution at a meeting duly called for that purpose. Such meeting is necessarily governed by ordinary and orderly parliamentary usage, which requires that announcement he made of the decisions reached by the meeting upon questions properly pending before it and that minutes be kept of the proceedings of such meeting. Of very necessity, such minutes constitute prima-facie proof of what transpired at such meeting.

It is apparently conceded that the showing of the minutes that 394 persons voted for dissolution or disorganization is prima-facie proof of such fact. In this connection we digress to add that there is no question under the testimony that 394 persons, present at such meeting, did so vote. Relators do not dispute that fact, as we understand it. Before the result of the election could be declared, ascertainment must be made by the meeting of the total number of resident voters and taxpayers of the district. The statute gave the meeting the power to dissolve the consolidated district. The power to determine, at least prima-faeie, all the facts authorizing such dissolution necessarily resided in the meeting itself. It seems clear, therefore, that the declaration of the minutes of the meeting, that the 394 votes cast for dissolution constituted the votes of more than two-thirds of the resident voters and taxpayers of the district, constituted prima-facie proof of that fact also. Such is the necessary result of the powers conferred upon such meeting by the Legislature. However, it is unnecessary for us to rely upon such presumption to ascertain the number of resident voters and taxpayers in the consolidated district. There is direct proof in the record upon that question.

It must be presumed that none but resident voters and taxpayers voted at said meeting, until the contrary is shown. [20 C. J. 239; State v. Binder, 38 Mo. 1. c. 456; Gass v. Evans, 244 Mo. 1. c. 344; Gumm v. Hubbard, 97 Mo. 1. c. 320; Windes v. Nelson, 159 Mo. 1. c. 66.]

Relators called as witnesses before our commissioner 189 persons “who testified as to their constitutional qualifications as voters, but who did not vote” at said meeting. Relators contend that the record shows that 151 of these were taxpayers. Respondents claim that 47 of said 189 witnesses were not shown to have been taxpayers of the district and that 28 others had paid no taxes whatever. But we will assume for the moment that relators are correct and that they actually produced 151 voters and taxpayers of the district, residing therein at the time of the. alleged dissolution, who did not vote at such election. They, with three who were counted as voting against dis solution, make 154 who clearly must be counted against such dissolution. If that were all the evidence as to the number of resident voters and taxpayers who must be counted against such dissolution, it would have required only 308 votes to disorganize on May 3, 1923. ■

Respondents called 273 persons who testified that they voted at the dissolution election. .Relators contend that only 245 of these persons proved to be resident voters and taxpayers. Let it be so assumed. That evidence only tends to show that 28 votes were cast by persons not qualified to vote. Such evidence does not show that any others than those testifying were not qualified. The presumptiomof full right to vote still adheres to those concerning whose qualifications no testimony whatever was offered. [Windes v. Nelson, supra, page 66.] If all the 28 votes, which relators contend were cast by persons not qualified to vote, be taken as voting for dissolution and deducted from 394, there are still remaining 366 votes for dissolution, none of which can be said to have been successfully challenged.

Relators alleged in their information that there were 530 resident voters and taxpayers-in the district. However, there was n.o proof made of any such number. But if there were that many, two-thirds thereof would have been 354, or twelve less than the 366 persons we have found to have voted for the dissolution of the district. All of these must be regarded as qualified voters under the indulgence of permissible presumptions as to some and proof actually made as to others.

It appears that the greatest number of taxpayers of the consolidated district for either 1922 or 1923 was 468, as shown by the public records. Two-thirds of that number are 312. Hence, on any theory advanced by relators, the vote for dissolution was sufficient to effect disorganization of the district under Section 11242, Revised Statutes 1919.

We deem it unnecessary to determine from the testimony of each witness whether relators or respondents are correct in their contentions concerning what such testimony shows. We are undoubtedly correct in taking the position that, where there is no testimony tending to show that a particular person who actually voted was or was not a resident voter and taxpayer, the presumption must be indulged that he was such. Such presumption is particularly justified in a case of this sort. Here is a country community comprising an area of five by five and one-half miles. In a community of that size, the residents thereof and the facts concerning their payments of taxes are much more generally known than would he the case in a city occupying the same area. A number of tellers from various parts of the district supervised the voting. The voter was required to advance openly and deposit his vote in full view of the assemblage. In addition to all that the factional strife over the very existence of the consolidated district for about ten years had doubtless drawn the lines sharply and familiarized the members of each faction with various members of the other, faction, and voters not qualified would likely have met with a challenge when they proposed to vote.

It is to be deplored that considerable feeling and factional differences appear to have been aroused in the consolidated district and possibly to have controlled the result of the meeting. Those matters are truly most unfortunate and tend to cripple seriously the cause of education. But they are not matters which affect the merits of this case in any way. They concern only the parties and those living in the consolidated district. The question of who is right and who is wrong has no bearing-in the decision of the case before us. Right or wrong, two-thirds of the resident voters and taxpayers of any consolidated school district have the unquestioned power, under due and orderly statutory procedure, to disorganize such district. Charges of force and fraud made by relators against respondents in the pleadings find no sup port in the proof offered. Two-thirds of the resident voters and taxpayers of the district have spoken for disorganization. It becomes the duty of this court to hold that the will of such majority, as thus expressed, must prevail.

The consolidated school district having’ been legally disorganized in accordance with the provisions of the statute, it follows that the common school districts Faubian No. 51, Big Shoal No. 65 (63) and Englewood No. 64 must be held to have been legally organized thereafter and that respondents are the legal directors .of the districts for which they have been respectively elected. Our temporary injunction is therefore dissolved and our writ of ouster denied.

Graves, C. J., James T, Blair, Walker and Ragland, JJ., concur; White, J., absent; Woodson, J., dissents in a separate opinion.