State Ex Inf. Thompson Ex Rel. Pugh v. Bright , 298 Mo. 335 ( 1923 )

This is a proceeding in quo warranto in the Circuit Court of Ray County, attacking the validity of the proceedings attending the organization of Consolidated School District No. 2 of Ray and Carroll Counties, and seeking to oust respondents as directors of such consolidated school district. From a judgment sustaining the validity of such proceedings and denying the ouster, relators have appealed.

The appeal was granted to the Kansas City Court of Appeals and that court transferred the case to this court. Counsel for relators and respondents filed a stipulation in the Court of Appeals agreeing that the case be transferred toAppellate this court, stating in such stipulation: "It beingJurisdiction. mutually understood, herein, that a constitutional question is involved." The mandate of the Court of Appeals was based on such stipulation. There is no constitutional question involved, as a careful examination of the record discloses. As said by FARIS, J., in the case of In re Letcher, 269 Mo. at page 147: "We are by law the keepers of our own jurisdiction and we have the right and it is our duty to determine this question for ourselves as the initial question up for decision in any case which comes before us." The parties attempted to confer jurisdiction upon this court by stipulation. Such stipulation was utterly futile for that purpose, and did not authorize such transfer to this court. As we said in Estate of Bennett v. Bennett, 243 S.W. at page 769; "Parties to cases cannot confer appellate jurisdiction upon this court by agreement."

However, an examination of the record discloses that the appeal should have been granted to this court in the first instance because "the title to an office under this State" is involved. [Article VI, sec. 12, Mo. Constitution; State ex inf. Sutton v. Fasse, 189 Mo. 532; State ex rel. v. Stone, 152Title to Office. Mo. 202; State ex rel. v. Hill, 152 Mo. 234; State ex rel. West v. Consolidated School District No. 2, 234 S.W. 54.] The foregoing cases hold that the office of school director is an "office under this State" within the meaning of Article VI, Section 12 of the Constitution. Since the case falls within our appropriate appellate jurisdiction, it is our duty to dispose of the case regardless of the grounds upon which it was transferred to this court.

The validity of the proceedings attending the organization of the consolidated school district and the right of respondents to hold their offices as directors of such district is challenged in the petition upon the following grounds:

"Because proper and legal notices of said special meeting to vote on the proposition to form said proposed consolidated district were not posted according to law; because said county superintendent did not post proper and legal plats of said proposed consolidated district as required by law; because said county superintendent did not file a proper and legal plat of said proposed consolidated district with the county clerks of said Ray and Carroll Counties as required by law; because the special meeting at which said proposition was attempted to be voted on was not legally organized and said proposition was not legally submitted; because the proceedings of said special meeting were not properly and legally certified to the county clerks and to the county superintendents of schools of the counties affected, because the petition asking for said special meeting was not filed with the county superintendent of schools in the county in which a majority of the petitioners resided, to-wit, Ray County; because proper and legal copies of said petition and of said plat were not filed with the county clerks of each county, to-wit, Ray and Carroll, from which territory was proposed to be taken.

"Your petitioner further states to the court that at the purported election that your petitioner, Rust, who was then and there a qualified voter was denied the right and privilege of franchise and voting. That he arrived at the place of voting about five or ten minutes after two o'clock p.m. That the votes at that time had not been counted nor had not been finally collected. That he tendered his vote, expressed his desire to vote. That he was a qualified voter, and the defendants well knew that he was a qualified voter, and well knew that he was interested in the outcome of said election. That notwithstanding this knowledge on the part of the defendants they then and there refused the petitioner, Rust, the right to vote and did not accept his ballot and the same was not counted.

"Your petitioner further states that if he had been permitted to vote and cast his ballot he would have cast his ballot ``Against Consolidation.' That thereafter when the result of the said vote was tabulated, the result was fifty-two for consolidation and fifty-one against consolidation.

"Your petitioner desires to show the court that had he been permitted to vote the result of the said election would have been a tie, and there would have been no so-called consolidated district formed. The directors were illegally elected and there is nothing in the records to indicate how the ballot stood for the respective directors who purported to hold the office of director.

"Your petitioner further desires to show that there is nothing in the petition filed with the county superintendent of schools to indicate that there are at least two hundred children of school age or that there is at least twelve square miles of territory embraced in the district proposed.

"That the county superintendent of schools did not in truth and in fact visit the district and really investigate the needs of the community. That all the information had and received on that subject by the county superintendent of schools was made and provided by the parties interested in that consolidation. That there were no proper legal notices posted. That there were no proper maps or plats posted. That the maps or plats which were purported to have been posted and purported to cover the territory embraced were not properly authenticated. They were not properly certified. That they bore no official title or the names of any official. That there was nothing about said plats to inform the people resident of said district. That the same were posted by authority of law to embrace the properties purported to have been covered, and there was nothing about said plats that would indicate that they had anything to do with the purported and expected meeting for the purpose of voting on the consolidation of the district for the purpose of establishing a high school."

Before stating the facts in the case it is well to understand the province of this court with respect to the facts found by the trial court. The proceeding is in quo warranto. It is a suit at law. The findings of the trial court on questions of fact, if supported by substantial evidence, are binding on this court. [State ex rel. v. Wright, 270 Mo. 376, l.c. 387; State ex rel. v. Ice Co., 246 Mo. 168, l.c. 200; State ex inf. v. Hall, 228 S.W. 1055, l.c. 1057.] The case was tried by the court without a jury. No declarations of law were asked or given. Hence, we are bound by the findings of the trial court, where they are supported by substantial evidence.

It is not necessary to make a preliminary statement of the facts at length, since such facts will necessarily be more or less discussed in the opinion. The trial judge incorporated his findings of fact in the judgment which he rendered. They go into great length and detail. He found every fact at issue in favor of respondents, and fully sustained the validity of the proceedings and the right of respondents to hold their offices. He recited each and every step in the proceedings, from the filing of the petition requesting the county superintendent of schools to call a special school meeting, down to the election of some of the respondents as school directors at an election subsequent to the organization meeting.

I. It is contended that the court erred in finding for respondents because the greater weight of the evidence is in favor of relators and against respondents. Since thisWeight of is an action at law, it is not our province to weighEvidence. the evidence. [See cases above cited.]

II. Relators contend that the county superintendent of schools of Ray County did not visit the community and really investigate its needs. The trial court found to the contrary. The record shows that such superintendent advised with personsVisiting in the districts included in the consolidatedCommunity. district and that he was familiar with conditions therein. If he was familiar with the conditions and needs of the community by reason of the previous discharge of the ordinary duties of his office and had advised with those residing in the district, his failure, if he did so fail, to visit the community after the filing of the petition and before fixing the boundaries of the consolidated district and taking the other steps devolving upon him, cannot defeat the organization. The only purpose of the statutory requirement is to familiarize the superintendent with the needs of the community. The record and the finding of the trial court determine the point against relators.

III. The sufficiency of the notice is challenged, both as to form and as to posting. The validity of the proceedings is to be tested by the Laws of 1913, page 721. That act required the posting of ten notices in public places within theNotice. proposed district, stating the time, place and purpose of the meeting to act upon the proposal for consolidation. The trial court found, and the evidence tends to show, that the county school superintendent complied fully with this requirement. Not less than ten such notices, signed by the superintendent of schools of Ray County, the county containing the larger portion of said consolidated district, were posted at public places within such proposed district at least fifteen days before the date fixed for the special school meeting. A copy of such notice was put in evidence. It fixed the place, the date and the hour of the meeting and stated that the following things were to be considered:

"First: To organize a Consolidated School District in this Community, with boundaries as laid out on the plat(e) posted.

"Second: To elect six school directors for said Consolidated School District, two for three years, two for two years, and two for one year."

A mere reading of the notice and a comparison of it with the requirements of the statute are sufficient to show that the contention is without merit.

IV. The sufficiency of the plat of the proposed consolidated district is also challenged. The evidence tends to show and the trial court found that five plats of the proposed consolidated district were posted within such district for fifteenPlats. days before said special district meeting. Such plats were posted at the same places at which five of the notices of the meeting were posted.

(a) It is first contended that said plats did not show the boundaries of the proposed district and were not intelligible. It is true the plat did not show the line between Ray and Carroll counties. It did show that it was a plat ofLine Between proposed Consolidated District No. 2 of Ray andCounties. Carroll counties. It was drawn on a sheet of paper showing the area comprised in townships 52 and 53 and ranges 25 and 26. Sections 9300 and 9328. Revised Statutes 1919 (Secs. 3517 and 3545, R.S. 1909) show that the range line between ranges 25 and 26 constitutes the boundary between Carroll and Ray counties. The plat was so drawn as readily to show whether or not any given twenty-acre tract was included within the proposed district. An examination of the plat as posted would have revealed to any landowner whether all or any part of his land was included in the district. The plat was clearly sufficient in its description of boundaries and the lands included. It is much more complete than the plats held to be sufficient by Division One of this court in State ex inf. McAllister v. Hall, supra, l.c. 1056, and by this Division in State ex rel. v. Wright, supra, l.c. 383.

(b) The plat is attacked on the ground that it was not authenticated and bore no official character, so that the voters could not know that such plat was official or posted by authority of a public official. No such requirement isAuthentication. found in the Act of 1913. It simply provides that the county superintendent shall post five plats of the proposed consolidated district within said district at least fifteen days prior to the date of the special meeting. In each instance where the plat was posted it was in connection with a notice calling the special meeting and reciting the purpose of such meeting. Said act does not require that the plat be signed or authenticated by anyone. It is to be noted that the Act of 1913 was amended by the Laws of 1917, at page 509, by adding a proviso that all plats or notices posted as required in this section shall not be filed or posted unless approved and signed by the county superintendents of all counties in which any part of such proposed district shall lie. The act was not approved until March 27, 1917, which was nearly two months after the special school meeting was held. Such amendment by the General Assembly in 1917 indicates a legislative construction that the existing section required no such signatures or approval. This point must be decided against relators.

(c) It is contended that the plat was not presented to the voters at said meeting in compliance with the law. The Act of 1913 required that the proceedings be held in accordance with Section 10865, Revised Statutes 1909, and said section did not require the plat of the proposed consolidatedPresentation district to be exhibited at the school meeting heldto Voters. to vote on the proposition. Nor is any such requirement found in the 1913 Act. In any event, the evidence on the part of respondents tends to show that the plat was exhibited at the meeting and the trial court so found. The point is ruled against the relators.

V. Relators contend that the polls were not held open a reasonable length of time so as to give the voters in said district a reasonable time in which to vote, and particularly that a qualified voter named Fleet Rust, one of theLate Voter. relators, presented himself before the ballots were deposited or counted, and was refused the right to vote. The evidence on the part of respondents tends to show that said Fleet Rust did not appear at the meeting until after the ballots cast in the election upon the question of organization had been counted and the result announced; while the evidence on the part of the relators tends to show the contrary state of facts and that he did present himself in due time and was arbitrarily disqualified. On this issue the trial judge found against the contention of relators and we are bound by his findings. It may be interesting to note in this connection that said Fleet Rust testified as a witness and was asked this question: "Q. Can you tell the court whether or not the result of the meeting had been announced at that time? [Time of entry into the meeting.] A. I cannot say." It also appeared that the father of Fleet Rust, who opposed the consolidation and made a speech against it in the meeting, announced that his son was too late when he offered to vote. The finding of the trial court, therefore, is based upon most substantial evidence.

VI. The special school meeting was held on February 2, 1917, and the evidence tends to show that it was a cold, stormy day and that some of the residents of the district who were qualified voters had to travel four or five miles to reach Union School House where the meeting was held. There is no questionIllegal that the proposed district contained the requisiteVoters. number of children of school age and exceeded the minimum area. [Laws 1913, p. 722.] On account of the day being cold and stormy the voters in attendance at the school meeting numbered only one hundred and three, fifty-two of whom voted for organization and fifty-one against. In this situation the contention of relators that three illegal votes were cast by men residing outside of the proposed district is of some importance. It is not contended that these voters knowingly cast illegal votes, but that such votes were cast in ignorance of the true boundaries of the district. There is no showing as to how these three illegal votes were cast, whether for or against organization. One voter who lived outside of the district was called as a witness and it developed that his vote was cast against organization. It appears that some of the three voters residing outside the proposed district signed the petition to the county superintendent to initiate the proceedings. However, no presumption that they voted at the meeting in favor of organization can be indulged from the fact that they signed such petition.

VII. (a) Relators contend that there was no compliance with the provisions of the law that "each person desiring to vote shall advance to the front of the chairman and deposit his ballot in a box to be used for that purpose." Here also a sharp issue of fact developed. A number of witnesses testified on eachDepositing side of the question. Some of relators' witnessesBallot. testified that the ballots were collected by the tellers in a hat or cap and by them taken to the chairman's table and there counted. A number of witnesses on behalf of respondents testified that the voters were required to pass to the front of the building and deposit their ballots in a box. Two or three of respondents' witnesses suggested that some confusion might have arisen because the vote for school directors was taken up in hats and carried to the front of the building. No contention is made of ballot-box stuffing or that the result announced did not truly express the sentiment of those who participated in the election. On this question the trial court found that the qualified voters advanced to the table located in front of the chairman and deposited their ballots in a box on said table and that each voter deposited his ballot. This finding of the court, based on substantial evidence as it is, determines the controversy adversely to relators and we have no power to interfere with such finding.

(b) Section 10865, Revised Statutes 1909, required that those voting for organization should have written or printed on their ballots the words "for organization" and those voting against the organization should have the words "against organization" on their ballots. The trial court found that the ballotsWords on were so written. The evidence indicates some doubt uponBallots. the question of whether every ballot was so written. It appeared that the words "for organization" and "against organization" were written on the blackboard and voters instructed to mark their ballots in that way. However, it appeared that some of the ballots were marked "for" and some "against" and probably some marked "for consolidation" and some "against consolidation." Even if such ballots were not all marked as required by the said section of the statute, there is no provision in the statute that such ballots shall not be counted unless they are so marked. It is not to be expected that the qualified voters residing in a country community shall be lawyers or experts in legal matters, and this court has held that a substantial compliance with the requirements of the statute is sufficient. [State ex inf. v. Morgan, 268 Mo. l.c. 279; State ex rel. v. Job, 205 Mo. l.c. 34; State ex rel. v. Andrae, 216 Mo. l.c. 637.]

As we understand the record there is not the slightest suggestion that any ballot was not counted as cast or that any ballot was not sufficiently marked so that it was not counted in accordance with the intention of the person casting it. The contention is overruled.

VIII. Another contention is that there was no proper certification of the proceedings of the meeting to the county superintendents or the county clerks of the respective counties. On this point the trial court found "that theCertification: proceedings of said special meeting were dulyTypewritten certified by the chairman and secretary to theSignatures. county clerk and the county superintendent of public schools in and for Ray County." The same finding was made as to the county superintendent and county clerk of Carroll County. The Act of 1913 provided that the proceedings of the meeting should be certified to the county clerks and county superintendents of schools of the counties affected. The evidence showed that the proceedings were written in typewriting and the names of the chairman and secretary were signed in typewriting and that these typewritten papers were filed in the respective offices. No contention is made that the proceedings as thus certified did not truly relate the proceedings as they actually occurred, and since there is no requirement in the statute that such proceedings should be signed in the handwriting of the officers of the meeting, we see no reason why the certification should not be regarded as sufficient. The same considerations as to the expert knowledge of the voters likely to be in a meeting of this sort, apply to the certification of proceedings as apply to the preparation of ballots discussed above.

(a) The relators contend that the proceedings were not properly certified, because certified to at a bank at Hardin, Missouri, which was outside of the district. We are cited to no authority requiring said certification to be made at a meeting held inside of the district.

(b) Relators also contend that there is no certificate of the proceedings of the meeting on file in the office of the superintendent of schools of Carroll County. It will be noted that the Act of 1913 makes no mention of the requirement that the certified proceedings be on file, but simply requiresOn File. that they be certified to the clerk and superintendent. The evidence shows that they were properly deposited in the United States mail, addressed to the respective officers, and this evidence is sufficient to justify the finding of the trial court that the proceedings were sufficiently certified to complete the organization of the district properly.

IX. Relators finally contend that the court erred in refusing to admit in evidence testimony as to the result of an election held three months after the organization meeting for the purpose of disorganization, under the provisions of Section 10870, Revised Statutes 1909, at which it is contendedDisorganization. some one hundred and thirteen votes were cast for disorganization to twenty-eight against disorganization. We can conceive of no possible bearing the result of such election could have upon the validity of an election held for the purpose of organizing the district. It is conceivable that the sentiment might change in the district and even though a majority of the voters of the proposed district were in fact opposed to the organization of the consolidated district at the time it was organized, yet they had notice of the meeting and did not appear to vote their sentiments and the will of the majority present at that meeting, as expressed in the election legally called and held, is sufficient to accomplish the organization. No error was committed by the trial court in excluding this testimony.

X. We have carefully considered all the points assigned by relators as error, and are satisfied that the election was legally held, after due and timely notice and posting of proper plats, and that the proceedings at the special school meeting were regular and that the respondents wereConclusion. duly elected and qualified as directors of such district, possess all the legal qualifications of directors and are entitled to exercise the functions of such office. Most of the issues in the case are issues of fact, in the decision of which the finding of the trial court, based upon substantial evidence, is final and binding upon this court.

Our conclusion is that the court committed no error in denying a writ of ouster and that the judgment below should be affirmed. It is so ordered. All concur.