State ex rel. School Districts Nos. 52 & 53 v. Wright

FARIS, J. — This is a proceeding by quo warranto, filed by the prosecuting attorney of Cass County, at the relation of two certain school districts and some sixty-two tax-paying citizens of that county, against defendants in error here, who were defendants below, to oust [380] them from their offices as directors of a certain consolidated school district. The trial court refused to grant the writ of ouster and plaintiffs sued out and now prosecute their writ of error. The action turns upon the question whether said consolidated school district was legally organized. There is but little dispute about the facts. Such of these facts as are necessary to an understanding of the points raised are substantially as follows: A petition containing the requisite statutory number of signers and which is conceded by plaintiffs to be sufficient in form and substance and sufficiently signed, was presented to one T. J. Walker, who was then superintendent of public schools of Cass County, requesting him to proceed officially under the provisions of the Laws of Missouri, 1913, page 721 et seq., to organize a consolidated school district in Cass and Bates counties, with the center of such proposed school district at or near the town of Archie in Cass County. Thereupon the County Superintendent personally went into the neighborhood to be affected and from which the territory to compose the proposed consolidated district would have to be carved, for the- purpose of examining the situation; Touching his acts in this behalf, he says: “I went to see these citizens and talked the matter over with them; observed the country and the lay of the land and kept in mind the different' boundaries that were to be included within the proposed consolidated district and kept in mind the territory that was to be embraced within the district, and later I took the plat and in my office laid out the boundaries, knowing as I did the boundaries of the district. I undertook to have in mind the welfare of the adjoining districts and that,I must not cripple any adjoining districts or leave them in a condition where it would be impossible for them to have school facilities.” This witness, who .is not a party to this action in anywise, testifying as to the manner, nature and extent of his investigations, also said: “I went with Mr. Pitcher to Archie where we drove over a large part of the territory and talked with a lot of resident citizens whom I told, as I visited them, [381] what was my purpose; that I wanted to see the sentiment of the community as to whether they really wanted a consolidated district and high school facilities, telling them what in my judgment would be the advantages of such an organization; to most of them I called attention to the fact that there was at that time no high school existing between Drexel and Garden City, in Cass County, a stretch of country perhaps twenty-five miles from one town to another. Whenever a man expressed himself as favorable to it, I asked him if he would sign a petition as an evidence of his good faith, and a great many more were added, to the number of about seventy.” There is no controversy as to the sufficiency of the notices, nor as to the posting thereof, nor as to the number of plats which were prepared by the County Superintendent and caused to be posted at the requisite statutory number of places. These plats were roughly and somewhat inartificially drawn upon blanks containing numbered sections, townships and ranges, all of which blanks were filled in as the situation required. The plats-as posted and filed show the southeast corner of the proposed district to be on a certain creek, or water course, known as Mormon Pork of Grand Eiver, which point, the testimony shows, was supposed to be coincident with the southeast corner of section nine, though it developed upon exact measurement that the southeast corner of said section nine was some thirteen chains east of this creek. Touching it, however, as well as regarding other contested points, the County Superintendent says that he was not personally acquainted with the lines bounding the school districts affected in Bates County; that he made inquiry as to all of these facts and afterward prepared the plats by the exercise of his best judgment as to what was the proper manner of running the lines. The plat hereinafter set forth shows the inclusion of an eighty-acre tract, which has the effect to produce, a seeming inequality in the western boundary of this district. The testimony of defendants, which was, in its entirety as to the facts, corroborated by plaintiffs, shows [382] that this tract of land is vacant and uncultivated, and situate in a small, weak common school district. For these reasons the County Superintendent included the above tract in the consolidated district. Regarding a certain eighty-acre tract — seemingly on the easterly side of the watercourses which partly bounded the consolidated district on that side — and a two-hundred-acre tract, being all that was left of a certain common school district in Bates County, both of which tracts were omitted, the County Superintendent testifies as to the former that he might have included it if he had known the true facts, but that such omission was justified possibly by the fact that these watercourses often become impassable on account of floods. As to the omitted two-hundred-acre tract he says his best judgment was to omit it, which he did, and that this judgment would not have been changed by knowledge (which he did not have at the time) that it was all that was left of a former Bates County common school district. The record does not contain any sufficient evidence by which the alleged bad judgment of the County Superintendent is demonstrated, or the judgment upon which he acted in the three certain behalves mentioned is impeached. The court, as stated, refused to oust the defendants, thereby holding, in effect, that the district was lawfully organized. This is the decisive question and the sole question sought to be settled by this proceeding. Other facts tending to illuminate it will be found in the opinion. Looking at the brief filed by learned counsel for plaintiffs in error in the light provided by the terms of our Rule 15 (adopted April 10, 1916), we find only the below points mooted: (a) That the exact boundaries of the district were never determined by the County Superintendent of Schools; (b) The County Superintendent did not investigate the needs of the community with due regard to the interests of adjoining districts; (c) the court erred in admitting the plat in evidence, because it did not show the boundaries of the proposed district; (d) the court erred in admitting evidence that some of [383] the individual plaintiffs participated in and voted at the special election; and (e) that it was error to exclude evidence that the County Superintendent made alleged fraudulent representations as to the additional cost in taxes which would he entailed by the establishment of the proposed consolidated district. [384] Plat. [383] I. Coming to a consideration of the complaint that the exact boundaries of the proposed district were never determined by the County Superintendent, we note that seven plats were caused to be posted by this official. [384] These plats were headed: “Plat of Proposed Consolidated District No. 2, of Cass and Bates Counties.” In the north margin thereof the ranges correctly numbered 31 and 32, respectively, and in the east margin the townships likewise correctly numbered 42 and 43, respectively, were shown, with the words “Cass County” written in said east margin under the words “Township No. 43.” In the south margin, appeared the legend: “Scale 1 inch=l mile.” All of the above matters and things are omitted from the plats shown by plaintiffs in error in their abstract. In all other respects the above plat which we take from the abstract, is a true representation of the boundaries of said proposed district. Learned counsel for appellants concede that the notices posted were in proper form and that the petition for the organization of the district was duly filed. The point as made goes to the sufficiency of the above plat. The alleged phase of inexactitude touching the plats is that these plats fail to show the boundaries of the district. The contention upon which this charge is bottomed, so far as we are able to gather, is that while the southeast corner of the district as the plat shows it, seems to be the southeast corner of a certain section nine, this is not the ease in fact; because while upon the plat Mormon Fork of Grand River which actually forms the southeast boundary of the district, seems to cross the section line at a place coincident with the southeast corner of said section 9, it in fact crosses the south line of said section thirteen chains west of the southeast corner thereof. Regardless of this fact we yet think this plat, which we show above, was under the statute (Laws 1913, p. 722, sec. 3), a sufficient showing of the boundaries of the proposed district. It may be a matter of judicial regret that the above section of this act which designates all of the necessary statutory requirements of things to be done in order to lay out, organize and record a consolidated district, did not go more at length into the details of the procedure for such organization. But these things were for the Legislature and not for us. [385] Reference to the language-of the act shows the only requirements of investigation and examination to be that: “On receipt of said petition, it shall be the duty of the County Superintendent to visit said community and investigate the needs of the community and determine the exact boundaries of the proposed consolidated district. In determining these boundaries, he shall so locate the boundary lines as will in his judgment form the best possible consolidated district, having due regard also to the welfare of adjoining districts.” While the above language is all that the act contains as to the initial manner of “determining” the boundaries, the context, we think, shows that the word “determine” is not used in its strict sense of “ascertaining to a mathematical certainty; ’ ’ but it means that the County Superintendent shall “settle upon and decide” where such boundaries shall be. For it will be noted in determining these boundaries he is required to “so locate the boundary lines as will in his judgment form the best possible consolidated district.” Neither the district nor the boundaries thereof are required to be surveyed, for no provision exists to pay for any surveying and none is mentioned in the act. The plats which are to be filed and posted are likewise, from the context, to be prepared by the County Superintendent. For while he may procure others to make them, it is yet made his duty to post them, and, since nothing is said as to paying any other person or officer for making these plats, the duty to make them, or to procure them to be made without incurring any expense therefor, clearly falls upon him. Since we know what the duties and the statutory requirements as to eligibility of a County Superintendent of schools are, we know that he is not required to be either a surveyor, a civil engineer or a skilled draftsman. Therefore we would not expect absolute mathematical certainty in lines and scale in the plats filed and posted by the County Superintendent. Such a plat is sufficiently exact within the meaning of the statute when, it shows the sections and subdivisions [386] thereof in a manner sufficiently accurate to enable the plain, ordinary citizen (State ex rel. v. Glaves, 268 Mo. 100) to ascertain from an examination thereof whether the boundaries of the proposed consolidated district will include his residence or lands so as to make him a voter and a taxpayer in the district. It follows that if a plat under this act does this much, and in so doing, it likewise enables the County Clerk to intelligently extend and the Collector to intelligently collect taxes on the subdivisions of real estate included, this is all that is necessary. We think the plat posted and filed and above shown did this. The error as to where the southeast corner of section nine is, affects the matter in no material way when viewed in the light of the objects intended to be accomplished. The Mormon Fork of Grand River is shown to be a watercourse and a permanent monument. Even the casual observer can • see from the plat that the district runs for a southeast boundary line or corner, to this watercourse; that it includes all lands up to this creek and no more, and that the same is true of Grand River itself.. No courses or distances are called for; if they were this creek would control and delimit such calls and form a natural monument even as against such calls. [Whittelsey v. Kellogg, 28 Mo. 404; Smith v. Catlin Land & Imp. Co., 117 Mo. l. c. 444.] Since these natural monuments form the southeastern and part of the eastern boundaries of the proposed district, it is evident that no lands which lie east of this creek and of this river are embraced within the district. So also it is not difficult to ascertain what sections or subdivisions of sections of land lie on the westerly side of these watercourses. Surely any voter may be presumed to know whether he lives and his land lies on the east side or the west side of streams like these. Besides, a mere reference to the above plat and a statement of the contentions of the learned counsel for plaintiffs show in the light of our recent rulings, that the point should be ruled against plaintiffs (State ex rel. v. Glaves, supra), which we accordingly do. [387] Welfare of Adjoining Districts. II. Coining to the contention that the County Superintendent did not sufficiently examine into the effect of the proposed consolidated district upon certain adjoining common school districts in Bates County: The statute which we quote above is, we repeat, regrettably meager in its details; it relegates the matter of fixing the boundaries of the district, that is, the creation of the district itself, to the judgment of the County Superintendent; it lays down no hard-and-fast rules, nor any certain method for him to follow, but within the limits of so locating “the boundary lines as will in his judgment form the best possible consolidated district,” in the light of a “due regard for the welfare of adjoining districts,” leaves both the measure of judgment and the quantum of due regard to the welfare of adjoining districts to the sound official discretion of the County Superintendent. The question of the correctness of the judgment exercised and the regard by him had to the welfare of adjoining districts is required (as the sole way of correcting his exercise of bad judgment and discretion) to be passed on by the voters at a special election held for this purpose. In this case the voters approved the district and its boundaries as an exercise both of good judgment and due regard. In addition, there was substantial testimony, which we set out in our statement of facts, that the superintendent made efforts to obtain facts on which, caeteris paribus, he might have been able to exercise the required statutory quantity of judgment and due regard. The learned trial court found from the facts shown that he did all that the statute required him to do. No instructions were asked or given; this is not an equity suit (State ex rel. v. People’s Ice Co., 246 Mo. 168), so we are in this condition of the record, bound by the holding of the court nisi. [388] Misrepresentation as to Increased Taxes. [387] III. It is contended that the trial court erred in refusing to admit proffered evidence that the County Superintendent made, fraudulent statements as to the additional cost in taxation which would be entailed by the [388] formation and operation of the proposed consolidated district. This contention we think is erroneous both as to the facts and the law. Some three or more witnesses were permitted to state that representations were made by the County Superintendent that the increased cost by way of taxation to the owners of taxable property to maintain the proposed consolidated district would be only ten or fifteen cents on the hundred dollars’ valuation, but that the increase had run much higher in some at least of the territory included. The single objection made by plaintiffs to.testimony of this sort was sustained, because the question was leading. 'Afterwards the matter was gone into fully and some three or more witnesses testified about it. That any such inquiry in a proceeding like this was wholly incompetent, is manifest. The alleged fraudulent statements were made, according to the witnesses, while the superintendent was “visiting the community” and endeavoring to “investigate the needs” thereof. The petition by which the move toward the organization of the district was initiated had already been signed and filed. Conceding for the sake of the argument that the County Superintendent did hazard an erroneous guess as to the additional cost which would be entailed and have to be met by taxation, is that any reason why the district should be declared outlawed? At most, what the superintendent did was to make predictions as to future conditions, which it is averred time has not vindicated, and that this was done in order to obtain votes in favor of the district, when the matter should’ come to be voted on at the special election. We apprehend that such a ground would not avail even in an eléetion contest. . If it could even in such an action become relevant, we might view with alarm the grafting upon the right to hold an office the condition that all of the ante-election promises made should in the end eventuate, according to the strictest letter of each voter’s memory. Such a view might even be held eventually to extend to the platforms of political parties and there work remediless havoc. But [389] be all this as may be, this is a collateral matter sought to be injected into a common law action; the County Superintendent is not a party, but a mere witness in the case; and since it is under the issues irrelevant, he could hot be impeached by the inquiry, and for the reasons given in the analogous case of Carder v. Drainage District, 262 Mo. l. c. 555, and the case of State v. Newcomb, 220 Mo. l. c. 63, among many others that could be set down did not time and space forbid, this contention is disallowed. Relators IY. It was perhaps “immaterial and irrelevant,” as the sole objection ran, that certain of the persons who are here objecting as relators participated in and voted the special election by which the district was organized. Bnt this was the only objection made and the eonrt nisi did not rule on the point at the time this objection was made, reserving his ruling thereon. He was never afterwards asked to rule, and has not yet ruled on it. So for both or either one of these reasons, we cannot review the point urged. Other alleged errors reserved by us for discussion, are disposed of by what we have said on other but germane points. We find no error in the record, and hence affirm the case. All concur.