State ex inf. Major v. Woods

LAMM, J. At its May term, 1909, the county court of. St. Louis county incorporates Wellston as a city of the third class, proceeding under Revised Statutes 1909, section 8529, and designates its first officers. In January, 1910, Mr. Attorney-General exhibits here an information, ea> officio, in the nature of quo warranto, to oust respondents as such officers. Respondents (mayor, marshall, attorney, police judge, assessor, collector, treasurer, and councilmen of said city) enter their appearance and make return. Thereafter we appoint Jesse C. Hargus, Esq., of the St. Clair bar, our special commissioner with donation of power to take testimony and report findings of fact and conclusions of law, together with such testimony. Thereafter Commissioner Hargus qualifies, hears the cause, and in September reports — finding for relator and recommending that judgment of ouster go, on the the ground the judgment of incorporation is void for fraud and want of jurisdiction. Thereafter respondents file exceptions and the cause is finally submitted in January, 1911, on report, testimony, exceptions, briefs and oral argument. Our learned Attorney-General’s information is not assailed by respondents in matter of form or substance ; therefore it need not be reproduced. It is full enough in allegation to justify all the offered proofs on each issue raised. The cáuse proceeds on the theory that the sole right of respondents to act as officers of Wellston is based on its incorporation by the county court. If that incorporation is valid, they are not usurping official authority — otherwise, otherwise. The information, inter alia, charges the incorporation is void (1) because of lack of jurisdiction in the county court (and herein of the incorporating petition not — 369 — stating facts sufficient to constitute a cause of action); and (2) because of fraud. Eespondents ’ return traverses those allegations. The forensic controversy is pitched on that line and there the adversary parties go up to battle. The material part of the statute in judgment (Sec. 8529, R. S. 1909) reads: “Any city or town of the State not incorporated may become a city of the class to which its population would-entitle it under this article, and be incorporated under the law for the government of cities of that class, in the following manner: "Whenever a majority of the inhabitants of any such city or town shall present a petition to the county court of the county in which such city or town is situated, setting forth the metes and bounds of their city or town and commons, and praying that they may be incorporated, and a police established for their local government, and for the preservation and regulation of any commons appertaining to such city or town, and if the court shall be satisfied that a majority of the taxable inhabitants of such town have signed such petition, the court shall declare such city or town incorporated, designating in such order the metes and bounds thereof, and thenceforth the inhabitants within such bounds shall be a body politic and incorporate, by the name and style of ‘The City of-,’ or ‘The Town of- and the first officers of such city or town shall be designated by the order of the court, who shall hold their offices until the first general election of officers, as provided by law, and until their successors shall be duly elected and qualified.” The vital part of the challenged incorporating petition reads: “To the Honorable County Court of St. Louis . County and to the Honorable Judges thereof. “The undersigned are taxable inhabitants of that part of the county of St. Louis defined in the accom — 370 — panying map as the proposed ‘Wellston’, and the general description of the metes and bounds thereof is as follows:” (description omitted.) - “As taxable inhabitants of the aforesaid territory indicated by . said map and description as that of the proposed city to be called ‘Wellston’ your petitioners pray that they may be incorporated, and a police established for their local government, and that the inhabitants of said described territory may be so incorporated as a city of the third class under the general laws of the State of Missouri by the name of Wells-ton, included therein the territory hereinbefore described and the inhabitants, thereof. “Said territory of said proposed city is entirely within the county of St. Louis, Missouri, and within the jurisdiction of your Honorable Court, and your petitioners further respectfully state: “1. That the said territory within which your petitioners reside (and the inhabitants whereof it is hereby proposed to incorporate as a city) in said county of St. Louis is not at present within the limits of any town, city or village, and said territory includes more than three thousand and less than, thirty thous- and inhabitants. “2. That the name of the proposed city is ‘Wells-ton.’ “3. That your petitioners (at the time this petition is submitted to this court) comprise in number more than a majority of the taxable inhabitants of the said territory proposed to be incorporated, and all of your petitioners moreover reside therein. “Whereof, your petitioners pray for an order incorporating the said territory within the said county Of St. Louis, Missouri, as a city of the third class, under the name of Wellston and for such orders in tbe prémises as may be in conformity with law. “And your petitioners will ever pray,” etc. — 371 — The finding of fact by our special commissioner (so far as material to questions raised) follows: “I find from the pleadings and the evidence the material facts upon which the case must turn to be substantially as follows: “That on the third day of May, 1909, the respondents, also John Sacks, and other persons, filed in the county court of St. Louis county a petition (said petition consisting of several separate petitions) wherein they prayed that the inhabitants of the hereinafter described territory within the county of St. Louis and State of Missouri, be incorporated as a city of the third class, under the name and style of ‘Wellston’; said territory being described in said petition as follows, to-wit: (here follows description); that said petitions do not set out the metes, and bounds of the ‘commons’ within or appertaining to said above described territory; ... or pray that a police be established for the preservation and regulation of any ‘commons’ appertaining to said proposed city; . . . that the county court at the time it made and entered said order had no evidence or information before it from which the number of persons residing in said territory subject to taxation could be ascertained, and said county court knowing that it did not have such evidence or information, knowingly and willingly refused to make an investigation, or to require evidence from which the number of such persons could be ascertained, and said court in fact did, at no time, ascertain by evidence or investigation, nor did it make a finding as to the exact number of persons within said territory subject to taxation; . . . “That certain unknown persons conspired to fraudulently procure the order of incorporation from the court, and to practice a fraud upon said court, and the inhabitants of said above territory described in said order of incorporation, and to that end such unknown persons signed, or caused to be signed and placed upon — 372 — said petitions, the names and signatures of a number of persons without the knowledge, authority or consent of such said persons whose names and signatures so appeared as petitioner on said petition, which said names and signatures purported to be the signatures of taxable inhabitants residing in said territory, and without said persons whose names purport to be signed to said petition having in fact signed the same; that notwithstanding a number of signatures to said petition were shown to have been signed, attached to and placed upon said petition by said unknown persons without the knowledge, authority or consent of said persons whose names purport tó be signed to said petition having in fact signed the same, and that notwithstanding the fact that a number of the signers to said petition had removed from said territory between the time of the signing of said petition and its filing oh May 3, 1909, the said county court, knowingly and willfully, refused to require evidence of the genuineness of the signatures to said petition, and knowingly and willfully failed and refused to require proof that at the time said petition was filed the signers to said petition were inhabitants of the territory described in the order of incorporation.” The question is: Shall judgment and writ of ouster go as our commissioner recommends! I think they should. This, because: (a) The statute authorizing the incorporation of cities or towns by the county court describes the character and scope of the petition to be presented and uses the word “commons” and the phrase, “commons appertaining to such city or town.” The petition in the instant case pretermitted all reference to commons. In his conclusions of law our commissioner held that omission fatal, jurisdiction failing. The incorporating judgment follows the petition in such omission. Respondents take exception to that conclusion, and such exception presents the first matter for determination. — 373 — Whether the omission is fatal depends no little on the meaning of the statutory word “commons.” For respondents it is argued that the statute is very old, originating four years after this Government took over the territory ceded by France in the Louisiana Purchase. [1 Mo. Terr. Laws, pp. 184-185.] Therefore, they say, as the word has been carried forward in the statute from that day to this, the mind of the juristic scholar must go back to the quaint and. singular conditions and usages of French and Spanish villages in Upper Louisiana to gather the meaning of “commons.” Informed by the annals of those times, it is argued the word commons in the incorporating act means commons as existing and understood at that time in those villages; that the lawmaker was dealing with commons of that sort. Certainly, the day was when the villages of Portage Des Sioux, St. Charles, St. Louis, St. Ferdinand, Village a Robert (now Bridgton), Ste. Genevieve, New Bourbon (afterwards a part of Ste. Genevieve) and Cardonelet were governed by syndics and had common field lots, out lots, village lots and commons — each with a well defined and peculiar meaning in a French or Spanish village, whose inhabitants brought from their mother country customs and laws singular to community village interests, not native to English speaking people. In the case of common field lots they were aggregations of narrow parallelograms, loosely speaking, of land under one fence, each lot of so many arpents (an arpent being a little more or less than an acre, varying with locality and with whether it was an arpent d’onion nance, an arpent commun, or an arpent de Paris), and doubtless were cultivated by villagers each working his own lot at the same' time his neighbor did his, not only for sociability, but for mutual protection from “clawed” beasts of the forest and prowling Indians. As counsel - say, Mr. Justice Catron in Chouteau v. Eckhart, 43 U. S. l. c. 373, learnedly discusses the his — 374 — torical, social and legal significance of the customs and policies of those villages in the particulars in hand, and the inquiring scholar may study that case with profit. The diligence of counsel also points us to Fine v. St. Louis Pub. Schools, 39 Mo. 59, and Harrison v. Page, 16 Mo. 182, as throwing a side light on the matter. One division of this court, in a case now sub judice, heard with pleasure and profit an illuminating discourse on the several meanings of French and Spanish “out lots,” “village lots,” “common field-lots,” and “commons” from Edward O. Eehr, Esq., of the St. Louis bar a short time before the instant case was argued in Banc. On the argument of the instant ease I leaned to the view of respondents ’ learned counsel, to the effect that the meaning of “commons” took a controlling color and twist from commons as known to the early French Village, and, since such commons had passed away, the word in our present statute became in a sense a dead letter as referring to a dead thing; therefore, the incorporating petition by pretermitting all reference to commons, whether existing or non-existing at Wellston, could„ not be held to be fatally defective as violating the statute. But research and reflection altered my views. We need hardly go back a hundred and more years to the days when Easkaskia of Hlinois was in her pristine and.now forgotten glory — when she as queen of trade and ahead of all towns in wealth and population ruled the roost (to borrow a chimney-corner figure) in the West. Much of curious interest to the student of history lies back there. In those days, ’tis said, the wags of that same vain and “cocky” Easkaskia flippantly dubbed our own St. Louis, “Pam Court;’-’ our C'arondelet, “Vide Poche;” our Ste. Genevieve, “Misc.s;” our Eahokia, “Pouilleuao” — in which outlandish nicknames, gravely preserved in sober annals, lie comedy and tragedy, smiles and sighs, if one but crack the French shells of them and get the — 375 — kernel of each thereof (those selfsame kernels smacking of short of tread, empty pockets, wretchedness and lice, severally) — we say we need not go so far back to get at what the lawmakers meant by “commons.” It is error to say the statute in review is ancient and dealt with an ancient and gone-by situation. Contra, it was made by modern lawmakers, using modern words in a modern sense. It is very much alive and deals with existing things, and looks (as all statutes should) to the future. The territorial law of 1808, referred to by counsel, was repealed in 1825 (2 Laws of Mo. 1825, p. 500, sec. 13) and a new law took its place (2 Laws of Mo. 1825, p. 764). The word commons, then used, presumably was used (not in an old and worn out, but) in an allowable and understood sense. That law was subsequently amended and revised in material aspects. Appearing as section 4385-, Revised Statutes 1879, it was repealed out and out in 1887 (Laws 1887, p. 33, et seq.), and a new statute enacted. The word commons then used must be given an up to date “1887” meaning. In 1875 the statute then existing employed the word commons, and in State ex rel. v. McReynolds, 61 Mo. l. c. 210, we construed that word to mean “lands included in or belonging to a town set apart for public use.” Continuing’, we said, “And in fact the natural import of the word when used iu connection with or with reference to towns and villages, is public grounds belonging to or appurtenant to the town or village.” Commons is defined by Webster: “Land held in common, as by all members of a community; a tract of ground for pleasure, for pasturage, etc., the use of which belongs to the public or a number of persons.” [Web. New Int. Dic., Tit. Common.] Black, among other things, says of this word: “The word common also denotes an uninclosed tract of land set apart for public and municipal purposes in many cities and villages in the United States. [Black L. Dic., Tit. Com — 376 — mon.] In Goode v. St. Louis, 113 Mo. 257, there is an exhaustive discussion of the meaning of the word in grants, dedications and laws pertaining to towns and villages. It is there shown not to be a synonym of park or pleasure ground but to have a much more comprehensive meaning — that is, it may include park or pleasure ground or other ground set apart for municipal or public purposes in cities and villages, depending somewhat on the connection in which it is used. In Cummings v. St. Louis, 90 Mo. 259, an addition to that town was platted, having thereon land marked “A.” “A,” it is then said, “is to be and remain a common .forever.” It became known as “Exchange Square.” It was held that the proprietors dedicated the tract to public use; that they used “the word common, not in any technical sense, but in its popular signification, as a parcel of ground set apart for common and public use, for the convenience and accommodation of the inhabitants of the city. ’ ’ Recurring to the statute, it ordains that a majority of the inhabitants shall present a petition to the county court. What kind of a petition? Any petition? Not at all. A petition making those allegations the pleader thinks relevant and sufficient? No. The lawmaker directs what he wants set forth, viz., “setting forth the metes and bounds of their city or town and commons and praying that they may be incorporated . . . and for the preservation and regulation of any commons appertaining to such city or town.” When that kind of a petition is presented, and not till then, the court has power to act in creating a new governmental agency, incorporating a town. It, first being “satisfied that a majority of the taxable inhabitants have signed the petition,” goes on to give judgment. It “shall declare such city or town incorporated,” etc. The petitioners go into a court of limited and inferior jurisdiction and invoke a high statutory power granted to that court to be used only on the strict con — 377 — dition precedent that a petition be presented of the character prescribed by the same statute. In such case, the rules are: (1) That where a statute creates a right and provides a remedy, as here, the remedy so provided is preclusive and must be followed. [State ex rel. v. Trust Co., 209 Mo. l. c. 493; Clark v. Railroad, 219 Mo. l. c. 538-9.] (2) That on direct attack, as here, presumptions are not indulged to support or eke out the jurisdiction of courts of inferior and limited jurisdiction (those not proceeding according to the course of the common law), but their jurisdiction must affirmatively appear on the face of their proceedings. [State ex rel. v. Wilson, 216 Mo. l. c. 277.] We have no call to read anything of substance out .of that statute that the lawmaker has taken the pains to put into it, or read anything into it that he has taken pains to leave out of it. In clear words he has said what the petition shall set forth and for what it shall pray. The commands of the statute are. simple and few. They lay out a straight and narrow road to follow. Prosperous and happy is he who walks therein ; for obedience to those commands is a jurisdictional requirement. We are not saying that a petition need set forth the metes and bounds (or pray for the preservation and regulation) of commons if there are no commons. That would be absurd and courts are not allowed to unnecessarily put absurd constructions on statutes. We are saying the statute means that where there are commons — any such parks, public pleasure grounds or .other public grounds, as come fairly within the designation of commons — they should be set forth by metes and bounds in the petition and the prayer should refer to them in apt and statutory way, and that where there'are no commons that fact should be alleged as an excuse for the absence of a description by metes and bounds, and such prayer.- It'is not an unreasonable or fanciful hypothesis that the original proprietors of the land, as densely populated — 378 — as Wellston, may have dedicated parks, squares, public grounds or other sort of commons as an inducement to further the sale of lots and parcels of groimd for residence purposes and crown a speculative venture with success. Such proprietors may have had in mind the health and pleasure of people invited to become members of an urban community. Boston Common, a notable pleasure ground and beauty spot, was dedicated by its then owners and set apart by the town in-1634 “for the common use of the inhabitants of Boston as a training-field and cow pasture. [Codman v. Crocker, 203 Mass. 146.] Nor is it an unreasonable or fanciful hypothesis, that the municipal preservation and control of such commons shall be an object of solicitude to the lawmaker, and should be provided for in the petition and judgment for incorporation. The existence or non-existence of commons in an unincorporated town is not a matter of which courts will take judicial notice. It is matter of allegation and proof and the statute clearly contemplates that the record should show; the facts. In so ruling we are not, by a dry and lifeless technicality, overturning the incorporation of a. town where there are vested' interests acquired on the strength of a supposed valid corporate existence, one long acquiesced in by the State and where the doctrine of waiver has play. Here the town was born in throes and pains and its stormy and short life is challenged from the start. No-r are we sticking on mere words and overlooking substance. Commons are of substance in urban life. Commons, pleasure grounds, breathing' and beauty spots, parks, play grounds, “the village green,” public “squares,” places dedicated to the common use of the whole community are not mere sentimental conceits. Neither the unlearned nor the learned, the dreamer nor the utilitarian, the courts nor the fireside, the child nor adult so regard them. With one accord — 379 — all agree that commons in some form are useful elements in wholesome municipal life, well worthy of the attention of laws and courts. Surely the matter has pith enough to be dealt with in incorporating a town. Nor are we giving a sour, narrow, far-fetched or too strict construction to the statute. Attend to the great Solomon who says (Proverbs, XXX, 33): Surely . . . the wringing of the nose bringeth forth blood. Seizing that proverb' as applicable to jurisprudence, Lord Bacon by way of comment saith: “And where the wine-press is hard wrought, it yields a harsh wine, that tastes of the grape-stone. Judges must beware of hard constructions and strained inferences ; for there is no worse torture than the torture of the laws.” [Vide, Of Judicature.] So, too, run the maxims: Summum jus, summa injuria, which may be freely rendered into, a too' strict or rigid interpretation of the law is frequently productive of the greatest injustice; apices juris non sunt jura, which is said to mean in effect that right, too rigid, hardens into wrong. We have not wrenched the statute, or corroded the bowels of its text. It means what it says. It stands on good reason, and we but enforce both its words and reason, when we hold the county court was without jurisdiction because the incorporating petition was fatally defective. The need of police regulation in Wellston may be pressing and considerable as argued at our bar. But it is better for its corporate health that the town be born regularly with no infirmity or bar-sinister on its escutcheon. The courts are open, the remedy, the facts and speedy relief are ready at hand, and the latter easy of accomplishment. The conclusion of our commissioner on that point is approved. (b). Of fraud in the concoction of the judgment. Our commissioner found such fraud as vitiated the judgment. — 380 — (1) It is argued for respondents that fraud is not a proper subject of inquiry in an action at law such as quo warranto — -that the suit should have been by way of a bill in equity in the name of the State. But we are not impressed with that view of it. The • rule in this jurisdiction is that the life of a corporation must be challenged, if at all, by quo warranto. That is, by a direct attack by the State, instead of by an indirect or collateral attack by an individual. We had occasion to review at some length the case-learning on that question in a late case, Black v. Early, 208 Mo. l. c. 303, et seq., and that discussion is reason for putting another aside. Counsel cite us to cases in other jurisdictions where equity has entertained jurisdiction, but they frankly admit that in the most of those “cases the suits brought by the law officer of the crown or State were in cases of public charities, or to control the action of quasi public corporations.” In this jurisdiction the rule of practice is that the question of fraud in the incorporation of a town is inquired into on quo warranto where the issue of fraud is raised. [State ex rel. v. Fleming, 147 Mo. 1; State ex inf. v. Fleming, 158 Mo. 558.] Such inquiry was recognized as proper in State ex rel. v. Job, 205 Mo. 1. The same doctrine is laid down as a general one by the books. [32 Cyc. 1424.] It is elementary that fraud is cognizable in law as in equity. It is a head of jurisdiction in both. Absent a reasoned precedent of our own to the contrary, we rule that fraud is a subject of inquiry in quo warra/¡%to to test the validity of a judgment incorporating a town in Missouri. (2). It is argued that our commissioner improperly permitted the judges of the county court to testify to facts impeaching the judgment of that court. For relator it is argued they were competent, witnesses in that behalf and we are cited to cases sustaining that view of it. But we do not think the question is here at this time. That particular objection seems — 381 — not to have been made at the time the testimony went in. That was the appointed time. It is in law (in the matter of introducing testimony) as in the traditional marriage ritual and ceremony, viz., the objection relied on should he made at the time or thereafter parties “should hold their peace.” [Bragg v. Railroad, 192 Mo. l. c. 345, et seq.] (3) The statute ordains that as a condition precedent to incorporation, the county court “shall be satisfied that a majority of the taxable inhabitants of such town have signed such petition.” That court found the fact to exist and adjudged its satisfaction. It is averred in the petition for the writ, that such judgment was fraudulently concocted and our commissioner so found. There is no testimony showing actual fraud in the sense of corruption, criminality or any form of moral turpitude. The county court practically took the remonstrance and petition for it, and did not go on to ascertain the number of taxable inhabitants by legal proof. The burden was on the incorporating petitioners to make out a prima facie case in the first instance, and if that case was successfully rebutted, it was the duty of the court to require such further proof as satisfied the court by a fair preponderance of the evidence. The method adopted, as disclosed by our commissioner’s report and the testimony, was easy hut had. It amounted to a legal fraud — a fraud on the law and orderly procedure. That is what our commissioner means in his report and the testimony sustains his finding. However, the character of proof necessary to set aside a judgment for fraud presents a vexed and delicate question. It is a field of judicial exploration full of perplexity and nice distinctions abound. The cases are not all in accord (Howard v. Scott, 225 Mo. l. c. 711, et seq.), and as this case breaks on a failure of jurisdiction to render the judgment a statement and discussion of the facts and the law applicable — 382 — to the facts are not necessary under the head of fraud; and for that reason we do not state or discuss them, but our examination of the facts leads us to the conclusion that there was a legal fraud.' (c). A question was propounded from the bench during oral argument directed to the absence of the town of Wellston as a party defendant. That question has received the attention of counsel in supplemental briefs. It has been held that the officers of a town where its incorporation is challenged are the proper parties in quo warranto. The town is a proper party under certain circumstances discussed by the books, but this case is not of that class. [See authorities infra, State ex rel. v. Coffee, 59 Mo. 59; (Vide p. 67 et seq.); State ex rel. v. McReynolds, 61 Mo. 203 (p. 212); State ex inf. Fleming, 147 Mo. 1 (pp. 8, 9); s. c., 158 Mo. 551 (pp. 567-8); State ex inf. v. McLain, 187 Mo. 409 (p. 414); State ex rel. v. Gravel Road, 116 Mo. App. 175 (pp. 193 et seq.); State ex rel. v. Small, 131 Mo. App. 470 (pp. 478 et seq.).] To unsettle rules of practice breeds uncertainty. The maxim is: Obedience is miserable where there is no certainty in the law. If any good reason exists for exploding the doctrine announced, it has neither been given nor does it occur to us. Stare decisis. We conclude a writ of ouster should go because the judgment is void for legal fraud and for lack of jurisdiction. Accordingly one is ordered to issue. All concur, except Valliant, G. J., who is absent, and Woodson, J., who concurs in all said except in the disposition made of the absence of Wellston as a party; he does not concur in that and therefore does not concur in the result.