State ex rel. Schmutzler v. Young , 84 Mo. 90 ( 1884 )

Martin, C.

This is a petition for the writ of mandamus, in the name of the state, at the relation of Schmutzler, Sanning, and Lauf, directors of a certain school district in Cole county, against Robert E. Young, county commissioner of schools, in which the circuit court is asked to issue its writ of mandamus requiring said commissioner to vacate a certain, order or decision made by Mm, and to dismiss the matter before him in which his decision was made, for want of jurisdiction to hear and determine the same. On the petition an alternative writ was issued, which on motion of defendant was quashed. The petition was thereupon dismissed, from which action of the court the plaintiffs sue out their writ of error.

The decision of the commissioner complained of was made by him under authority of. section 7023, Revised Statutes, 1879. Said section relates to the formation of new school districts, and directs that when a new district is to be formed composed of portions of two or more districts, or the boundary lines of any district are to be changed, it shall be the duty of the directors of the districts affected, upon the reception of a petition signed by ten qualified voters residing in either of the districts affected, desiring such change, to post a notice thereof in each district interested, twenty days prior to the time of the annual meeting. The voters, when assembled, are to decide such questions by a majority vote. If the assent to the formation of a new district or change of boundary lines is given by all the annual meetings of the various districts thus voting, the district is deemed to be formed. “But if a part of the districts affected vote in favor of and a part against such change, the matter shall be referred to the county commissioner for final decision, who shall proceed to inform himself as to the necessity of the proposed change, and his decision thereon shall be final and shall be transmitted to the various district clerks, and by them be entered upon the records of the various districts.”

It is alleged in the petition that a proposition to form a new district out of portions of the district of which the relators are directors and an adjoining district was submitted at the annual meeting of voters in each district ; that the voters of the district in which relators reside voted against the proposition, while the voters in the adjoining district voted ior it, by a small majority; that thereupon the commissioner, assuming that he had authority to act under said section, decided that the change of districts as contained in the proposition voted upon should be made, and the new districts established in accordance therewith, and transmitted his decision to that effect to the district clerks of the respective districts. It is alleged that he had no jurisdiction to make a decision in the matter for the reason that the petitions upon which the directors of the respective districts acted in posting notices of the proposed change to the voters, were not signed by ten qualified voters, as the la<w requires. It is then urged that the elections held in pursuance of such notices were void and could not give rise to the conflict between the districts, as contemplated in said section, which would authorize or sustain any action of the commissioner. I am inclined to think that the relators are wrong in respect to the supposed jurisdictional fact. The section makes it the duty of the directors to act, when ten qualified voters request them to do so, but it does not assume to prohibit them from acting of their own motion when the interests of the district, in their judgment, call for action. Their action terminates by posting a proposition for a change. The proposition so posted by them is the warrant of authority for the vote at the annual meeting, and not the preliminary request of the ten voters to submit the matter to a vote.

If the preliminary request should be regarded in the nature of a j urisdictional fact, it is a fact which seems to be left to the directors to decide. It is for them to say that the petitioners are qualified voters; and when they have jiractically so declared by posting the proposition, I do not perceive how their decision can be successfully attacked in any collateral proceeding or by mandamus of the courts. State v. Evans, 83 Mo. 319; Snoddy v. Pettis County, 45 Mo. 361. But irrespective of considerations of this character, I am satisfied that the relators have misconceived their remedy in applying for the writ of mandamus. The right of decision in conflicts between the districts is vested in the commissioner, and his decision, when made, in a case properly before him, is final. A mandamus from the courts can be invoked when he refuses to decide, and, perhaps, a writ of prohibition when he assumes to proceed without jurisdiction. But after he has once acted, whether with or without jurisdiction, a mandamus cannot be invoked for the express purpose of reversing his decision, as attempted in this case. In State ex rel. v. Lafayette County Court, 41 Mo. 222, Wagner J., remarks: “Mandamus will not lie to compel an inferior tribunal to give a particular judgment; or to reverse its decision where it has once acted ; its peculiar scope and province being to prevent a failure of justice from delay or refusal to act.” County Court of Callaway County v. Inhabitants, etc., 10 Mo. 679; Dunklin County v. District Court, 23 Mo. 449 ; State ex rel. v. Byers, 67 Mo. 706.

The application for the writ does not come with good grace from the present relators. If the petition for the change, submitted to them, was not signed by ten qualified voters, why did they, in pursuance of it, post the proposition for consideration of the voters and conduct the election , at which it was voted upon % If they had not done this, there could have been no election, and consequently no occasion for the commissioner to decide anything. After thus voluntarily contributing the principal fact necessary to support the commissioner’s jurisdiction, they present themselves now in the attitude of impeaching their own record, in order to defeat the jurisdiction they invited.

The judgment of the circuit court quashing the alternative writ and dismissing the petition is affirmed.

All concur.