State Ex Rel. Hanna v. Ross

*391 COX, P. J. — The purpose of this proceeding is to test the validity of the organization of Consolidated School District No. 8 in Pemiscot county. The papers on file in the office of the clerk of the county *392 court and with the county superintendent of schools relating to the formation of this district have been certified to us and are conceded to be in proper form as far as they go. The statute which provides for the organization of consolidated school districts, to-wit, section 11259, Revised Statutes 1919, as amended in 1921, Acts 1921, page 654, provides the steps which shall be taken to form such a school district. As far as necessary to notice them here, they are as follows: The first step is to be taken by twenty-five or more qualified voters residing in a community where it is desired to have such a school district established filing a petition for that purpose with the county superintendent of public schools. It then becomes the duty of the county superintendent to visit the community and investigate its needs and determine the exact boundaries of the proposed district. In doing this he is required to have due regard to the welfare of adjoining districts. He then calls a meeting of the qualified voters residing in the territory embraced in the proposed district. He shall post notices of this meeting and shall also make plats of the proposed district and post them. He shall take or send a plat to the voters’ meeting. He shall attend the meeting and call it to order or deputize some one to do so. The voters then elect a chairman and secretary and ballot on the question. If a majority of the votes are cast in favor of the formation of the district, they shall then proceed under another section of the statute to elect directors. The county superintendent of schools shall file with the county clerk a copy of the petition received by him and a plat of the district. The chairman and secretary of the voters’ meeting shall certify the proceedings of that meeting to the county clerk and to the county superintendent of schools. It is conceded that all this was done. The statute makes no requirement that anything else shall be filed with the county clerk. It is contended by respondents that the acts of the county superintendent respecting the location of the boundary lines, etc., of the proposed consolidated district were ministerial and not judicial or gwcm-judicial, and that, therefore, certiorari will not lie. This point has been specifically ruled in a recent opinion by the Supreme Court in State ex rel. Fry v. Lee, 284 S. W. 129 l. c. 134, which opinion was published in the Advance Sheets of the Southwestern Reporter July 21, 1926. That cause was in mandamus, but the same statutes were involved as are here involved, and the character of the act of the county superintendent was there in question the same as here. The ruling was that the county superintendent acted in a judicial or quasi-judicial capacity. Such being the case certiorari will lie. [State ex rel. Turner v. Penman et al., 282 S. W. (Mo. App.) 498.] The objections to the sufficiency of the record in this case are based upon the fact that there is an absense of any showing that the district contains an area of fifty square miles or an enumeration of at *393 least two hundred children of school age and that it does not contain within its territory a town or city district which had, by the last enumeration, five hundred children of school age. These provisions are found in section 11258, Revised Statutes 1919, as repealed and reenacted in 1925 and is found in Acts 1925, page 331. This statute is as follows: “No consolidated district shall be formed under the provisions of this article unless it contains an area of fifty square miles or has an enumeration of at least two hundred children of school age: Provided, that no district formed under the provisions of this act shali include within its territory any town or city district that at the time of the formation of such consolidated district has by the last enumeration five hundred children of school age. ’ ’ The plat filed with the county clerk by the county superintendent of schools is sectionized and a computation of the territory included shows less than fifty square miles. That plat is required by the statute to be filed with the county clerk and therefore becomes a part of the record of the formation of the district. That plat shows that the territory included is not sufficient to authorize the formation of this district if the authority rested on territory alone, but it does not. The statute requires fifty square miles of territory or an enumeration of at least two hundred children of school age. If an enumeration of two hundred children of school age is shown then the territory may be less than fifty square miles. Section 11140, Revised Statutes 1919, requires an enumeration of children of school age to be made each year between April 30th and May 15, except in cities of more than 50,000 population. These enumeration lists are required to be filed with the county clerk.. "When filed they become a part of the record and are, in the absence of fraud, the only legitimate evidence of the enumeration of the districts and become a part of the record to be considered in a proceeding of this kind. In the return to our writ in this case the county clerk and county superintendent of schools certified that the consolidated district is composed of school districts numbers 28, 32, 33, and 34 and then give the number of children of school age in those districts as shown by the enumeration lists in those districts filed with the county clerk May 15, 1925. These are as follows: School District No. 32 (being the Steele,) Missouri, Town District ...................................... 421 District No. 28 .................................. 162 District No. 33 ............................ 228 District No. 34...................................... 168 It will be seen that these enumeration lists show more than two hundred children of school age and also show no district included *394 in the consolidated district contains an enumeration of five hundred. If these enumeration lists are properly held to constitute a part of the record to be considered in determining the legality of the formation of this consolidated district, then every objection made by relators is met. The school law does not seem to require a complete record of all the proceedings leading' up to the formation of a consolidated school district to be made. In the first instance all that is required to start the legal machine in motion is for twenty-five qualified voters residing in a community where it may be desired to form a consolidated school district to file with the county superintendent of schools a petition for that purpose. The statute makes no provision as to what this petition shall, contain. The only purpose of the petition, as far as disclosed by the statute, seems to be to call the attention of the county superintendent of schools to the fact that at least twenty-five qualified voters in the community where the petitioners reside desire the formation of a consolidated school district in that community. It is then made the duty of the county superintendent of schools to visit the community and decide the question whether a consolidated school district should be formed in that community. If he decides that the matter is of sufficient importance to justify the calling of an election to determine the question, he then fixes the boundaries and makes a plat of the proposed consolidated district and prepares and posts notices of an election to be held at a designated time and place within the territory of the proposed district. At this election the voters decide by their ballots whether or not they will form a consolidated school district embracing the territory as shown by the pla.t prepared by the county superintendent of schools. If the proposition carries they then organize by the election of directors. The county superintendent of schools is not required to make a finding of facts nor file a report of his action with the county clerk. If he calls the election and posts the notices thereof and also posts plats of the proposed district as the statute requires, that action on his part is the evidence of his decision in the matter. The only record of his action requries to be made is found in the provision requiring him to file a copy of the petition filed with him by the twenty-five qualified voters and a plat of the district with the county clerk. The statute does not, in terms, require a copy of the notice of election to be filed with the county clerk but that should be done and was done in this instance. We take it that it will be presumed that the county superintendent of schools was familiar with the provisions of the law which would forbid him preparing and filing a plat of a proposed district that contained less than fifty square miles of territory and also contained an enumeration of school children of less than two hundred. He *395 would therefore be presumed to have ascertained the facts as to those questions before he fixed the boundaries of the district and prepared a plat of it, and if he prepared a plat showing less than fifty square miles of territory as he did in this instance, it should be presumed that he examined the enumeration lists on file with the county clerk and ascertained that the proposed district as he had platted it contained an enumeration of children of school age of at least two hundred. He should also be presumed to have ascertained that no town or city school district with an enumeration of five hundred or more was included in the proposed consolidated district. Since the statute makes no requirement that the county superintendent of schools shall make and file a finding of the facts which will show that the formation of a consolidated school district as platted by him was authorized under the law, it is but fair to presume that he knew and obeyed the law and if everything which the statutes provide shall be filed, is filed, it would seem but fair to indulge the presumption that the Legislature did not deem it necessary that any further record should be made and we therefore hold that it was not necessary for the superintendent of schools to make a finding of facts and include therein anything which the statute does not require him to include in the provision as to what shall be filed with the county clerk by him. Since the record to be considered by us in this case, which consists of the petition of qualified voters filed with the county superintendent of schools, the plat of the district prepared by him and the proceedings of the election which was called by him áre all that is required by the statute to be made and it being conceded that these are all in legal form, the organization of this consolidated school district cannot be annulled in this proceeding where we can consider nothing except what appears in the record. If anything is to be considered which is not required to be made a matter of record it must be done in some other form of action. "We find that the record in the formation of this district complies with the statute in so far as that statute requires that a record be made and hence it cannot be quashed in this proceeding. Relators have filed a motion to strike out part of the return in this case; also a motion for judgment on the return, both of which will be overruled. From what we have said it results that the record attacked in this proceeding should be permitted to stand and the writ of certiorari issued by us in this case should be quashed. It is so ordered. Bradley, and Bailey, JJ., concur.