Opinion
No. 28409.
June 17, 1952.
Oliver Oliver, Jack L. Oliver, Gerald B. Rowan, Cape Girardeau, for appellant.
Robert M. Buerkle, Jackson, for respondents.
The plaintiffs are three taxpaying residents of the area that was embraced by the Goshen School District of Cape Girardeau County. They brought this action against that school district and parties named as its directors and the Oak Ridge School District and its directors. They sought a declaratory judgment, holding invalid an election whereby the Oak Ridge District annexed the Goshen District. The defendants unsuccessfully moved to dismiss the petition and again moved for a judgment at the close of the plaintiffs' case. This motion was overruled and from a decree embracing the findings prayed for by the plaintiffs, the defendants prosecute this appeal.
The petition sets out that the Goshen School District which was district number 12 adjoins the Oak Ridge District which is district number 13 and both are in Cape Girardeau County. A petition was duly drawn and properly signed, by the required number of taxpayers in the Goshen District, requesting that the board of directors of that district call an election to determine whether or not the district should be annexed to the Oak Ridge District. It was alleged that one of the members of the Goshen District School Board, upon receipt of the petition, posted notices of an election to pass upon the proposed annexation. It is stated that he did this without any action by the Goshen board.
An election was held and the proposition received a majority of the votes cast, after which the results of the election were certified to the Oak Ridge District. The Oak Ridge District by a majority vote of its board accepted the Goshen District.
The tax rate of the Goshen District was 65 cents on each one hundred dollars of the assessed valuation of property, while the tax rate in the Oak Ridge District is $2.25. The plaintiffs state that they suffer, not only an increase in taxation but that their children are required to be transported to school, by reason of the action taken.
It is alleged that the election was improperly conducted and was illegal for the following reasons:
First: There was no meeting of the Board of Directors of the Goshen School District for the purpose of calling the election.
Second: The notices of the election were not in proper form, the date and place of the election were inserted in ink which washed and faded so that they became illegible or disappeared and that although the notices stated that the election would commence at seven a.m. and close at six p.m. it was actually held at two p.m. and closed at four p.m. It was also alleged that the notices stated that the election was to determine a change in the boundary line of the district instead of stating that its purpose was to pass upon the proposed annexation of the entire Goshen District by the Oak Ridge District.
Third: The election was not held in accordance with the notices.
Fourth: The ballots used were not in proper form and were not deposited in a ballot box.
Fifth: The count and tally of the ballots was not conducted in the manner prescribed by law.
Sixth: The results of the election were not properly certified to the board of the Oak Ridge District.
The petition concluded with the allegation that the directors of Oak Ridge District claim a legal annexation of the Goshen District, and the plaintiffs prayed that the election be declared illegal.
The appellants contend that the court should have sustained their motion to dismiss the plaintiffs' petition for the reason that private individuals cannot maintain an action such as this. We were confronted with the same question in Spilker v. Bethel Special School District, Mo.App., 235 S.W.2d 78, 80, loc. cit. 80, and the question was treated as follows:
"Can these plaintiffs draw into question the right of the Bethel Special School District to exercise its corporate powers within the territory known as the Brick District, which it claims to have lawfully annexed? We do not think so. It is our opinion that the facts alleged in the petition show a de facto annexation which can only be questioned by the proper State authority in a direct proceeding for that purpose. Fly v. Jackson, 226 Mo.App. 203, 45 S.W.2d 919; School Dist. No. 35 v. School Dist. No. 32, Mo.App., 247 S.W. 232; Bonderer v. Hall, Mo.Sup., 205 S.W. 542; State ex rel. Consolidated School Dist. No. 2, Clinton County v. Hunt, Mo.Sup., 199 S.W. 944; State ex rel. Consolidated School Dist. No. 1, Mississippi and New Madrid Counties v. Jones, 320 Mo. 353, 8 S.W.2d 66; State ex inf. Barker v. Smith, 271 Mo. 168, 196 S.W. 17; Black v. Early, 208 Mo. 281, 106 S.W. 1014.
"The foregoing cases deal with the organization of consolidated school districts and hold that a private individual cannot attack the legality of the corporate existence of such school districts on account of any irregularity in their organization, but that such action can only be brought by the State in a quo warranto proceeding. The same principle should apply to a case such as the one at bar, where the legality of an annexation is attacked on account of some irregularity in the proceeding wherein the school district seeks to acquire additional territory."
The respondents question the correctness of the conclusions reached in the Spilker case, on the ground that an attack upon the mere expansion of a school district is not an attack upon its corporate existence, and that the action can therefore be maintained by a private citizen. We are cited to State ex rel. King v. Moreland, Mo.App., 189 S.W. 602, State ex rel. Frisby v. Hill, 152 Mo. 234, 53 S.W. 1062, and State ex inf. Taylor v. Pretended Consolidated School Dist. No. 3, Mo.Sup., 240 S.W.2d 946. Each of these cases has language to the effect that the corporate existence is not necessarily brought into question by an attack upon an annexation to the district but the case of State v. Moreland was a proceeding in certiorari against the superintendent of schools of Bates County. It was brought by the State and the question of the right of an individual to attack the legality of a de facto school district or an annexation was not discussed. State ex rel. Frisby v. Hill was a case that involved an attempt on the part of a school district to take in all of an adjoining district and part of another but as the caption indicates the action was brought by the State and the right of a private individual to bring such an action was not in issue or commented upon. State ex inf. Taylor v. Pretended Consolidated School District No. 3 was another State action brought by the attorney general and nothing in the opinion indicates that a like suit to contest a consolidation could be brought by a private individual.
We held in the Spilker case "that where a public body has, under color of authority, assumed to exercise the power of a public corporation of a kind recognized by law, the validity of its organization can only be challenged by the State. The same rule applies where such public corporation extends its authority, under color of law, over additional territory. Its de facto existence in such territory should not be allowed to be questioned by private individuals." We have been cited to no cases holding a view contrary to the one above stated, and our statement in the Spilker case seems to be supported by the recent case of Spiking School Dist. v. Purported Enlarged School Dist., Mo.Sup., 245 S.W.2d 13.
The allegations in the petition here are quite similar to those in the Spilker case and as in that case they showed a de facto annexation so here we have the de facto existence of the Oak Ridge District in the area formerly embraced by the Goshen District. Therefore, it follows that the court should have sustained the defendants' motion to dismiss the petition for the reason that the plaintiffs could not maintain the action.
It is therefore the recommendation of the Commissioner that the judgment be reversed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the COURT.
The judgment of the court of common pleas is accordingly reversed.
BENNICK, P. J., and ANDERSON, and RUDDY, JJ., concur.