State Ex Rel. Hammett v. Stephens

*507 JAMES T. BLAIR, J. This is a proceeding by information in the nature of a quo warranto, filed by the *508 Prosecuting Attorney of Randolph County, at the relation of resident voters, citizens and taxpayers of the territory involved, for the purpose of testing the validity of the organization of Consolidated School District Number Four in the county named. Respondents are the persons chosen as members of the Board of District No. Pour. The information is not assailed. It charges that the attempted formation of the district is invalid for several reasons; that the respondents and certain county officers are threatening to act upon the theory that the district is valid and that public money is about to be turned over to respondents and expended without authority, and that respondents are usurping authority they do not legally possess, and calls upon them to appear, anslver and show “by what warrant or authority they claim to have, use and enjoy the rights, privileges, powers and offices aforesaid,” etc. In due time respondents filed answer, in which they set. up the facts upon which they base.their claim to the offices they contend they legally hold. These include various steps upon which they rely to show that District Number Four was lawfully organized. No demurrer to the answer was filed, but relators filed a reply in which they specifically denjed; in detail, the several averments of the answer. The evidence is in conflict upon several of the issues in the case. No declarations of law were asked or given. Upon the evidence the trial court rendered judgment upholding the district, and this appeal followed. In view of the character of the questions presented, the evidence relevant to the questions raised may better be set out, so far as necessary, in connection with the discussion of the points urged .by relators. The errors assigned and briefed are: (1) the answer is insufficient in that it fails to aver that the county superintendent signed and approved (a.) the notices or (b) the plats which the applicable statute requires to be posted; (2) that the court' erred in admitting in evi *509 dence the notices and plats, because (a) of the insufficiency of the answer mentioned under (1) supra, and (b) because the notices and plats were not “legally executed or validated by said superintendent,” and (c) because the notices and plats were not ‘ ‘ signed, approved or authenticated in any manner by said superintendent;” (3) the‘court erred in finding, “contrary to the evidence and the weight of the evidence,” that the notices were “legally approved and signed” by the county superintendent; (4) the court erred in refusing to find that the county “superintendent was guilty of official misconduct and gross abuse of his discretionary power in attaching to and including within said district territory situate in other neighborhoods so remote that the children residing therein could not possibly attend the high school to be located at Cairo. I. The argument in support df the first assignment of error is, in substance, that the statute requires the notices and p~ats to be "approved and signed" by the superintendent, that there is no specific averment in the answer that they were so "approved and signed," and, therefore, there is a failure to allege a jurisdictional fact. For the purposes of this question let it be cQnceded the statute makes the requirement relators contend it makes. The answer averred that "the county superintendent did call a special meeting of the qualified voters of the said proposed consolidated district for coflsideration of the quest tion of consolidation, and did make such call by posting within, the proposed district ten notices in public places, stating the place, time and purpose of such meeting, and that at least fifteen days notice was given, and that said meeting did occur and was so published to occur on the 20th day of May, 1920, in Cairo, Missouri, and did commence at two o'clock p. m. on said day; that said county superintendent did also post within said proposed dis-ti~ict flve plate ~f tI~ proposed consolidated district, at *510 least fifteen days prior to said May 20, 1920,” etc. This question was considered in State ex rel. v. Long, 275 Mo. 169. The language in the answer in that case (pp. 177, 178) is so nearly identical with that in this case, with respect to the question under consideration, that a strong suspicion arises that the decision was before respondents ’ counsel when this answer was drawn. In that case Court en Banc unanimously held that, in the absence of a denial of the fact, the allegation that notices were posted warranted a presumption of fact that the notices posted conformed to the requirements of the statute. If the language in the answer in that case warranted a conclusion of fact that the notices complied with the law, it did so because it constituted a sufficient pleading of that fact and was undenied. For if the fact was not pleaded, no failure to deny it could amount to an admission of it. It was, therefore, held to be a sufficient pleading of the posting of notices conforming to the statute. If it was sufficient in that case it is so in this. We hold that the averment, as made in this answer, that the notices and plats were posted is, at least in the absence of a demurrer or motion to make more definite and certain, a sufficient averment that notices and plats, as required, were posted. In fact, they would not have been notices and plats within the meaning of the applicable law unless they were made and authenticated in such manner as required by the statute. The question as to proper authentication is discussed in another paragraph. II. (1) It is urged that the notices were not "legally executed or validated" as the law required. There was ample direct testimony that each notice was duly signed. In the circumstances the finding of the trial court on this question is conclusive. [State ex rel. v. Wright, 270 Mo. l. c. 387; State ex inf. v. Hall, 228 S. W. (Mo.) 1057.] *511 *510 (2) It is insisted that the failure of the county superintendent to sign the plats, separately, invalidates the district. It is argued that the statute required the *511 plats posted to be so signed. In conjunction with each of the notices, all of which the trial court found to have been duly signed, a plat was duly posted. Each notice referred to the plat posted with it. It stated that at the meeting to be held “the following things will be .considered: First. To organize a consolidated school district in this community with boundaries as laid out on the plat posted.” No plat was posted except with a-duly signed notice and no notice was posted without a plat. Each notice had the proper signature. In the circumstances shown, the trial court was' right in treating the notice and plat, in each instance posted together, as one and the signature as a signature to both. The plat was incorporated by reference into the notice, and the statutory purpose, in so far as concerns the question now made in this connection, was fairly accomplished. It, therefore, becomes unnecessary to discuss the contention that the proviso which requires the plats to be signed applies only to proposed districts which are to contain territory in more than one county. III. It is insisted that some of the territory included in the district is remote from the place where the school house is to be erected and that this invalidates the incorporation. The thtty to delimit the proposed district is imposed upon the county superintendent in the first place (State ex inf. v. Jones, 266 Mo. l. c. 197), and' the question whether the district is to be formed as proposed is then one to be determined by the voters in the territory affect.ed. Their conclusion is final, at least in circumstances like th~se in this case. The Legislature has not left this question to the courts, but to the voters of the district. IV. Whether the notices were in proper form when posted and whether the doenments put in evidence were in fact the notices which had been posted by the super- *512 intenclent were submitted, on conflicting evidence, to the trial court. There was substantial evidence both pro and con. Under decisions already cited, the finding of the trial court is conclusive on the question. The judgment is affirmed. Graves and Elder, JJ., concur.