State ex rel. Randolph County v. Evans

GRAVES, J. Action by mandamus to compel the respondent to apportion to relator the full sum — 100 — of $16,811.35 of the State’s school moneys. In the alternative writ it is charged that the county of Randolph for the year 1911 had a school population (persons between six and twenty years of age) of 9269, as shown by the enumerations of the several school districts in said county. The vital portion of the alternative writ reads: “That by section 10822 of the Revised Statutes of Missouri for the year 1909 it is made the duty of the State Superintendent of Schools, during the month of July, 1911, to apportion the State public school funds applied for the benefit of the public schools among the different counties, from the enumerations and returns made to his office, by the county clerks of the various counties in this State, and to certify the amount so apportioned to the State Auditor and also to the county clerk of each county, including said county of Randolph. That by section 10822 it is made the duty of the county clerk to apportion said sum so certified to him among the several school districts in his county, according to the enumeration of children of school age in said districts as made to him and to his said office as county clerk. That although such is the plain duty of the said William P. Evans as such State Superintendent of Public Schools, and although such, return has been so made to him, the said William P. Evans, as State Superintendent, by the county clerk of Randolph county, said William P. Evans, acting as State Superintendent of Public Schools, arbitrarily threatens to deduct from said enumeration of persons of school age in said Randolph county a large number of such persons, to-wit, 4655, and threatens to withhold a large portion of the said moneys from said county of Randolph, to-wit, the sum of’$8442.86, and the said William P. Evans arbitrarily threatens to apportion to the said Randolph county as its portion of the State school funds only the sum of $8368.49 upon a basis of only 4614 children' of school age in said Randolph — 101 — county, when said enumerations- and returns show - that the said county has for the year 1911 9269 school children between the ages of six and twenty years; and that the said William P. Evans has further arbitrarily and without authority of law notified the clerk of said Randolph county to cut put and refuse to make any apportionment whatever to the school districts of the city of Moberly, in said Randolph county, meaning and intending thereby to cut off such schools of the city of Moberly from any of the State school funds to be apportioned and distributed for the year 1911.” The real amount of dispute between relator and respondent is the sum of $8442.86; which is the amount going to the Moberly School District in said county. Relator in his return charges that the enumeration in said Moberly School District was fraudulently taken and returned, and that as thus taken and returned contained 1014 fraudulent and fictitious names. By paragraphs 7 to 14 of the return are set up the special‘defenses as above indicated. We need set out but one paragraph to present the matter. Paragraph 7 of the return reads: “Respondent, for further return, says that in the year 1913 the board of directors of the school district of the city of Moberly, said district being located wholly within the county of Randolph, caused to be taken and forwarded to the county clerk of that county what purported to be a true and correct enumeration of the names of all persons over six and under twenty years' of age who were resident at that time within said district, and caused the same in due time to be certified to the county clerk of that county as the enumeration of persons of school age within said district, and that on or about the 31st day of July, 1911, the county clerk of said Randolph county made out and transmitted to respondent an abstract of the returns of the school districts, cities and towns ■ of said Randolph county, as made to him, and included in and as — 102 — part of Ms said abstract of returns the enumeration made and returned to Mm by the school district of' the city of Moberly, an aggregate enumeration of 4655 persons between the ages of six and twenty years who were resident, during the year 1911, within said district of the city of Moberly, and in addition thereto there was an aggregate enumeration of 4614 persons between the school ages of six and twenty years who were resident within said districts, cities and towns in said county, other than the school district of the city of Moberly, making a total enumeration of 9269 persons of school age within said county, but respondent states and alleges the facts to be that the said enumeration for the school district of the- city of Moberly, so made and taken as aforesaid, and purporting to be a'true, correct and lawful enumeration of persons of school age resident within the school district of the city of Moberly, and upon wMch the county clerk based his abstract of returns to respondent, in so far as the same related to the school district of the city”of Moberly, was incorrect, false and illegal, and contained the names of numerous persons who were not between the ages of six and twenty years, and who did not reside within said school district, and the names of many persons who were dead, and further contained many false and fictitious names, and the names of many persons who were not entitled to be enumerated as resident of said school district; that said enumeration contained 1014 of such names and persons who were not, for the reasons herein stated, entitled to be enumerated as persons of school age within said school district, and that, as a matter of fact, there was at that time, and is at this time, but 3641 persons of school age resident within said district, and who were and are entitled to be enumerated as such. Respondent further states that he is unable to set out the names of the persons who were so, as aforesaid, wrongfully and illegally enumerated as persons of school age res — 103 — ident within said district, for the reason that said names are unknown to him, and relator has refused to furnish them.,’ ’ In other paragraphs, the respondent charges like frauds as to the several enumerations of this particular school district for the years 1908, 1909' and 1910', and claims that it is and was his duty not only to withhold from said Moberly School District the sum which would go to it from the alleged fraudulent and fictitious 1014 names on said list for the year 1911, but likewise to withhold from it out of the money really due to it for 1911 all moneys which it received by reason of the alleged frauds in the three previous years. To so do would leave the school district without any sum due for 1911. Relator has filed a motion to strike out these paragraphs of the return, numbered 7 to 14, inclusive, on grounds therein stated. We need not note all of these, but only’ such as may be necessary. This we will do in the course of the opinion. I. The year 1911, and the preceding years of 1908, 1909 and 1910 in our judgment, stand upon-, a different basis under the statutory law, but there is one question raised by the motion to strike out which is common to all. This question we take’first. In the motion it is urged that the verity of the enumerations for the Moberly School District cannot be attacked in this proceeding. That such would be a collateral attack upon the judgment of a judicial or quasi-judicial body. To our mind the term “quasi-judicial body” is more in line. In this contention we think the relator is right. In the case at bar there is no question that the enumeration returns as made by the school directors and the county clerk are regular upon their face, and this being true, such returns cannot be attacked in this a collateral proceeding. In this State, as well as in many others, school enumerations are the acts — 104 — of duly and legally constituted bodies, i. e., the boards of directors of school districts. The duty is imposed by statute upon these boards, and the school census- or these enumerations are the result of action by the boards. Section 10790, Revised Statutes 1909, so far as material, reads: “The board of directors of each district shall, between the thirtieth day of April and the fifteenth day of May of each year, take or cause to be taken, and forwarded to the county clerk, an enumeration of the names of all persons over six and under twenty years of age, resident within the district, designating male and female, white and colored, and age of each, together with the full name of the parent or guardian of each child enumerated.” These enumerations when completed are the official acts of the board of directors, and as such cannot be attacked in a collateral proceeding, such as is the case at bar. An enumeration list is but the annual school census. Enumerators may be prosecuted criminally for a false .enumeration, and parents and guardians may likewise be prosecuted for giving false information. The whole proceeding is carefully hedged by the law, and after it is taken it is returned by the board of directors to the county clerk, and then becomes the basis for the distribution of the school funds due from the State. The point we make is that it is the act of the board of directors under the law.. That under the law such board has many things to-consider in determining what shall be the school census or enumeration. Among other things the question of residence has to be determined. The finding of the board cannot be questioned in a collateral proceeding, but like a judgment, can only be impeached in. a direct proceeding for that purpose. Speaking on the subject of a city census, Ellison, J., of the Kansas City Court of Appeals, in the case — 105 — of State ex rel. v. Cass County Court, 137 Mo. App. l. c. 708, says: “Notwithstanding the return of respondents shows the proceedings of the county court and of the city of Pleasant Hill as herein indicated, yet it is insisted they are not concluded by the census, or the legal results which ordinarily follow it, for the .reason that they allege in the return that the census in point of fact was fraudulently taken, that is, it was padded with names of persons not inhabitants and that in reality there were not twenty-five hundred inhabitants of the city. The answer made by relator to this position is that the proceeding for taking the census, and the taking thereof, were had in and before a duly constituted body or tribunal especially empowered by law to do so, and that, as such, the result is not subject to collateral attack. Relator’s view is sustained by a long line of authority to be found in his briéf. Indeed, it is a fundamental rule of law that the acts of a body entrusted by law with the performance of certain specified proceedings which on their face are regularly taken, are not subject to attack except in a direct proceeding for that purpose. This rule applies as rigidly to special and inferior bodies as it does to superior courts. In most instances presumptions upholding proceedings in superior courts will not aid omissions in proceedings of those of inferior grade, but where the record of the latter, on its face, is regular, it is not subject to collateral attack. In such instance the matter of power -and dignity of the body does not enter into the question. [State ex rel. v. Wilson, 216 Mo. 301; Lingo v. Burford, 112 Mo. 149; Jeffries v. Wright, 51 Mo. 215; State v. Evans, 83 Mo. 319; Union Depot Co. v. Frederick, 117 Mo. 148; Light and Water Co. v. Lebanon, 163 Mo. 259; 1 Black on Judgments, sec. 273; Freeman on Judgments, sec. 523; Van Fleet on Collateral Attack, secs. 62, 468.] — 106 — “Therefore, -respondent’s allegation of fraud in the census was the assertion of matter which could not be made an issue in the present case. It was foreign matter, good enough in a case where such charge could be investigated, but which should not find place here where those concerned in such issue are not parties. It follows that the allegation of fraud in the census was not confessed by the relator’s motion for judgment. Matter not well pleaded need not be denied and is not confessed. [State ex rel. v. Adams, 161 Mo. 349, 363.]” The statute empowers the board of aldermen or city council to take or cause to be taken a city census. In both cases, the statute imposes the duty upon a named body. In the one, it is the school board, in the other it is the city council. When completed, one becomes the school census for the district, and the other becomes the census for the city or toAvn. One is no more subject to collateral attack than the other We are cited, however, to the earlier case of State ex rel. v. Cartwright, 122 Mo. App. 257. In that case the lower court did permit evidence to show that an enumeration of colored pupils was fraudulently taken, and in discussing the question in the Court of Appeals some language is used by Johnson, J., which lends color to respondent’s contention here. However, in that very case, Ellison, J., made the point we make in the case at bar. At the close of the opinion, 122 Mo. App. l. c. 268, it is said: “Judge Ellison is of the opinion that no fraud was shown, and that if there had been, the present action is not the proper mode of reaching it. ’ ’ When the Cass County case in 137 Mo. App. reached that court, the Cartwright case, supra, was urged as authority for the position that fraud could be shown as the respondent at bar now urges. From this position the Kansas City Court of Appeals evidently receded in the later case, if in fact it had ever — 107 — intended to announce the doctrine in the Cartwright case. Upon this subject, in State ex rel. v. Cass County Court, 137 Mo. App. l. c. 709, it is further said: “But it is said that fraud in taking a census has been allowed to be shown in a collateral proceeding such as this, and the cases of State ex rel. v. Wilder, 211 Mo. 305, and State ex rel. v. Cartwright, 122 Mo. App. 257, are cited in support of the statement. We cannot see where the former has any application whatever. There was no proof in that case of a census, while here each party sets forth the census in the pleading. In the latter case there had been two enumerations of school children by the school district clerk and the contest was as to which the school board should recognize. The first one was the subsisting enumeration when the right to the school was demanded and when the alternative writ of mandamus was applied for and granted. The majority of the court held that the first one taken was the subsisting enumeration which had been acted on theretofore by the board and that the latter was' a pretense to avoid the first after the accruing of the right to the school.' While here, as we have just stated, the one census; regular upon its face, is conceded by the pleadings.” The Cass County case is one -by an undivided court, and although the Cartwright case is urged upon the court, it is distinguished and not followed. The exact question came up in New Jersey some years ago, Township of Morris v. Carey, 27 N. J. L. 377, and an elaborate discussion of the case law is therein found from the pen of Yeedenbtjegh, J. There the court reviews case after case, and reached the conclusion that school trustees in making and returning school enumerations acted judicially, and their acts could not be attacked for fraud, except in a direct proceeding. In other words, that in a collateral proceeding, as is the one we now have before us, such enumerations are final and conclusive. The New Jersey — 108 — law required enumerations to be made as required by our law, and for the same purpose, i. e., as the basis of distributing school funds. In the New Jersey ease, .supra, the parties offered to prove fraud in'tke enumeration list. After showing by the case law that the work of the school trustees in taking and making a school enumeration was in a sense judicial, the learned justice says: “The whole school money of the State is thus passed down to the township collectors, and they are ordered to pay it over to the town- superintendents; and then the town superintendents are ordered, by the statute (Nix. Dig. 735, sec. 17), to apportion the whole money so received among the several school districts, in the ratio of the number of children capable of attending school between the ages of five and eighteen, and to pay it over, on the orders of the .trustees, to the teachers; so that it will be perceived that the distribution of all the school funds, both State and township, in every county, township, and district of the State, is based upon this ascertaining of the children by the district trustees. The whole movement depends upon the finality of this ascertainment.' If this return be in its nature judicial, the county collectors, the township collectors, the town superintendents, can safely pay over the funds, respectively, as commanded by the statute. They perform merely ministerial functions, and are liable to indictment for not doing so; and the whole school system moves on harmoniously. If there be error in the ascertainment by the district trustees, so there may be error in even the highest tribunals; and probably no other tribunal could have been created by the Legislature to ascertain and adjudicate upon the children in each district having the requirements called for by the statute so appropriate as the district trustees. As regards fraud In the adjudication, that may also happen in the highest as well as the lowest tribunals; and the public, as — 109 — in other cases, must he protected by future legislation and by the authors being held responsible to the voice of public opinion and to the criminal law. At any rate, there must be a finality, as regards error and fraud, somewhere, and from the very nature of the thing, I do not see where the Legislature could have placed this adjudication .more properly than where they have. ’ ’ In the same case Oreen, C. J., uses this language: “I 'am also of opinion that the circuit court did not err in rejecting the evidence offered by the plaintiffs to prove that the list of children made out by the defendants, and returned to the town superintendent, was false and fraudulent, on the ground that the truth or falsehood of such return cannot be inquired into collaterally. -Upon this point, I fully concur -in the elaborate opinion of Mr. Justice Vredenburgh.” In Indiana there is a statute like ours, requiring school trustees, or as we call them school directors, to make an enumeration, which like ours must be subscribed and sworn to. The enumeration so taken and proved had to be filed with the county superintendent instead of the "county clerk as in this State. From the different district enumerations the county superintendent was required to make to the State Superintendent a county enumeration. In the case of Young, County Superintendent, etc. v. State ex rel. Morgan et al., 138 Ind. 206, we find that the county superintendent refused to make and certify the enumerations to the State Superintendent on grounds thus stated in the opinion: “After filing these several repoits, the appellees, as such school trustees, demanded of the appellant that he make out and forward to the State Superintendent the enumeration provided for by section 4431, R. S. 1881, which he refused to do, alleging as a reason for such refusal that the enumeration made by the appellees was not correct; that it contained many more — 110 — children than were entitled to school privileges in the city of Ft. "Wayne, and claiming the right to employ á competent person to make a new enumeration. Upon such refusal, this action was commenced to compel the appellant by mandate to perform the duty enjoined upon him by the provisions of said section 4431.” Section 4431 referred to above was the section requiring the county superintendent to make report to the State Superintendent. The court held that the county superintendent had to accept, the enumeration which was duly returned by the trustees and had no power to investigate the alleged frauds. In a later New Jersey case, State ex rel. v. Sheran, County Superintendent, 35 Atl. l. c. 1061, it is said: “Moreover, the only evidence laid before or available to him of the Oast published school census’ showed that Grlen Ridge was a distinct school district, having 344 schobl children; and the mandate of the statute is explicit that he should make the apportionment according to that census. His duty was purely miriisterial, and he could no more inquire into the legality of the constitution of the districts than he could into the accuracy of the enumerations. It is evident that such investigations would result only in a harmful disturbance of the system adopted for the support of the public schools.” The italics are ours. In that case it was sought to have the county superintendent ignore a certain school district ■ upon the ground of it being illegally organized. If these enumerations are fraudulent no doubt they could be attacked and corrected in a-proper action, but so long as they exist the State Superintendent cannot reach them in this collateral proceeding. Until they are corrected in a proper proceeding he must take them as a basis for a proper distribution of the school money. This view of course disposes of the enumerations for all the years, and in effect disposes of the case, but there are other matters urged — 111 — by the motion to strike ont which, we prefer to discuss, and these we take next. ' II. But to my mind there is another reason why the contention of respondent Evans cannot be sustained. His duties as' to the distribution of school funds are purely ministerial. No statute authorizes the State Superintendent to revise and correct enumerations on the ground of fraud. Such officer has been furnished with no legal machinery by which he can hold or have a hearing and adjudge the fact of fraud or’no fraud in enumeration' returns. He is not empowered to bring the interested parties before him. In fact the law makes no provision for him to make an investigation of the question of fraud. As indicated in the previous paragraph, I have no doubt that in a proper proceeding before a proper tribunal, with the proper parties before such tribunal, fraudulent enumeration lists may be purged of fraud, but the State Superintendent has not been constituted such a tribunal by law. Nor can this court try the issue of such fraud in this collateral proceeding. It may be that the Legislature could invest the State Superintendent with powers in this regard, but up to this time it has not seen fit so to do. The Legislature, no doubt, thought that it had sufficiently hedged these enumerations from fraud by the criminal proceedings which it authorized and mentioned above. The only statutes that are urged in support- of the respondent’s contention of his right, we will dismiss. These statutes are sections 10823 and 10920, Revised Statutes 1909, and read as follows: “Sec. 10823. The State Superintendent of Public Schools is hereby authorized to correct any error made in the apportionment of the public school funds among the various counties of this State out of the public school fund of the year next following the date when — 112 — -such mistake was made, and the amount set apart to any county for the purpose of correcting an error .shall be by him certified to the State Auditor and to the county clerk, and the State Auditor shall draw a warrant on the State Treasurer for the amount so- . certified' in favor of the treasurer of said county, and the county clerk shall apportion said funds to the various districts in said county as the funds of the.year in which said error occurred, and the county- treasurer may pay outstanding warrants for teachers ’ wages issued during the school year in which said error -occurred, not to exceed the correction made. “Sec. 10920. He shall reside and the books and papers of his department shall be kept at the seat of government, where a suitable office shall be provided by the State, at which he shall give his attendance when not'absent oh public business. He shall exercise such-supervision over the educational funds of the State as may be necessary to secure their safety and correct application and distribution according to law. He shall also have power to require of county clerks or treasurers, boards of education or other school officers, recorders and treasurers of cities, towns and villages, copies of all records by them required to be made, and all such other information in relation to the funds and condition of schools and the management thereof as may be deemed important; and he shall cause as many copies of the law relating to schools, with instructions for carrying into execution of such laws, to be printed into a separate volume and distributed to each county in the State, for the use of school officers therein, and all the blanks that may be necessary for the supply of all officers provided for by this chapter, as often as any change in said laws may be made of sufficient importance, in the opinion of the Superintendent to require republication and distribution thereof; and all moneys necessarily expended in performance of the duties required in this section shall be allowed by the — 113 — Auditor and paid out of the State Treasury. ' He shall also have authority to examine teachers and grant certificates of qualifications to those who pass a satisfactory examination, hut the applicant' shall not be charged any fee for such examination or certificate, nor shall the State Superintendent receive any fee or compensation therefor; and any person holding such certificate from him .shall be permitted to teach without further examination from other authorized examiners. Said certificate may be revoked by the State Superintendent for incompetency, cruelty, immorality, drunkenness or neglect of duty.’.’ The first of these sections we will have use ‘for under another point, but we cite it here for the- purpose of showing all the powers granted to the State Superintendent as to the distribution of public funds. The latter section is the one chiefly relied upon, and we have italicized the clause from which power is sought. Under that clause can it he said that power is given the Superintendent to adjudge enumeration lists to be fraudulent? We think supervision over the educational funds does not lodge with him power to set aside the findings of the school board as to the number of school children in the district. Such statute may be broad enough for him to see that proceedings are instituted to correct alleged frauds in this regard, hut we are not called upon to decide that question and do not decide it. To our minds, the words “correct application and distribution according to law” relates hack and refers to his duties under section 10823, supra. We have shown that by other sections the Legislature had sought in specific language to obviate- frauds in enumeration lists. It has provided for criminal prosecutions. Had the Legislature thought of conferring power upon the State Superintendent to purge enumeration lists - of fraud, it no doubt would have done so by specific provision. The — 114 — subject was in the legislative mind and action was taken thereon, but that action empowered the courts to hear and punish offenders, and not the State Superintendent to hear and adjudge the question of fraud. The Legislature no doubt thought that the courts of the different counties were amply able to. take care of fraudulent enumerations. Courts are invested with the power to bring in proper parties and bring before it all the evidence, but no such power seems to have been given the State Superintendent. Before it can be said that the State Superintendent can pronounce an enumeration list fraudulent, specific authority for him to hear and determine that question should be found in the letter of -the statute. As stated before the law has furnished to this officer no machinery by which this question of fraud can be investigated. The law does not authorize him to pass judgment thereon. Section 10823, supra, ■ confers no such powers. The funds are apportioned by the State Superintendent. That section only authorizes him to correct his own mistakes, when he has apportioned to a county less than that which was due it. He does that by setting aside from all the funds a sufficient amount to correct his error of the year previous, and then proceeds to apportion among all the counties the remainder. This statute has no reference to such troubles as are now before us. The duties of the State Superintendent under both of these statutes are .purely ministerial. They do not authorize him to pass judgment upon the-question of fraud in the enumeration lists. III. It appears that the State Superintendent is refusing to pay to Randolph county any money for Moberly School District, because he avers that the surplus which it. received for the years 1908, 1909 and 1910, equals all that it would be entitled to in 1911, under a proper enumeration for 1911, and the three — 115 — previous years. Grant it to be true that in the previous years the district had received more than it was entitled to, there is no warrant of law for the State Superintendent to correct or attempt to correct such error. Section 10823. refers to no such case, and this is his only warrant of authority. This money has been received and expended and it may be that by ■some equitable proceeding the status of the school district with reference thereto could be determined, but it can hardly be said that the State Superintendent has been clothed with the powers of courts of equity. As to these frauds, the State Superintendent is in legal effect rendering judgment against the district, issuing execution and then satisfying the execution and judgment. This, he cannot do. So that there is this additional reason as to why he should not withhold this particular portion of the fund in question. Relator’s motion to strike out should be sustained in toto, and it is so ordered. Valliant, G. J., Woodson and Ferriss, JJ., concur; Lamm, J., dissents; Brown, iT., dissents in opinion filed, in which Kennish, J., concurs.