Opinion
October 18, 1935.
1. SCHOOL DISTRICTS: Division of Town Districts. There is no law authorizing the division of a town school district.
Where the voters of a town school district containing more than 1200 children of school age voted to detach a portion of said district so as to leave less than 500 in said town district, making two common school districts, such an attempt to divide the town district was void.
In such case where the superintendent of schools attempted to form a consolidated school district out of the detached portions his act was contrary to Section 9352, Revised Statutes 1929, prohibiting the inclusion of town districts with 500 pupils of school age in a consolidated school district.
2. SCHOOL DISTRICTS: De Facto Consolidation. There being no law authorizing a town district with 500 pupils to be incorporated as a consolidated school district, the unlawful consolidation of the town district with a detached portion would not be a de facto district.
There cannot be a de facto corporation if there cannot be a de jure corporation.
WRIT QUASHED.
E.F. Sharp for relator; B.H. Charles and Carl Trauernicht of counsel.
(1) Laws affecting the organization of school districts will be liberally construed. State ex inf. v. McKown, 315 Mo. 1349, 290 S.W. 129; Hudgins v. Mooresville Con. Dist., 312 Mo. 11, 278 S.W. 771; State ex inf. McAllister v. Bird, 295 Mo. 352, 244 S.W. 940; State ex inf. McDowell v. Thompson, 260 S.W. 84; State ex inf. v. Foxworthy, 301 Mo. 383, 256 S.W. 468; State ex rel. v. Sims, 201 S.W. 911; State ex rel. v. Job, 205 Mo. 34, 103 S.W. 493; State ex rel. v. Begeman, 2 S.W.2d 111. (2) The regularity of proceedings of a board of education will be presumed in the absence of a clear showing that the board acted without jurisdiction. State ex inf. v. Heffernan, 148 S.W. 93; Rutherford v. Hamilton, 97 Mo. 543, 548. (3) A town district may in conjunction with a common school district form a consolidated district. It does not take three districts. R.S. 1929, sec. 9353; State ex rel. v. Scott, 264 S.W. 369. (4) The discretion of the county superintendent of schools in fixing the boundary lines of a consolidated school district, when approved by the voters, is not subject to review by the courts. State ex rel. v. Thompson, 30 S.W.2d 603. (5) When a school district has existed and functioned for a considerable period of time during which it has been recognized and dealt with as a district by the various agencies of the State, with whom it is required by law to deal, the court will not disturb its status. State ex inf. v. Seibert, 65 S.W.2d 134; State ex rel. v. Ellis, 44 S.W.2d 131; State ex inf. v. School Dist., 314 Mo. 315, 284 S.W. 135; Stamper v. Roberts, 90 Mo. 687, 43 C.J., sec. 60, p. 105, sec. 53, p. 101; State ex rel. v. Miller, 113 Mo. App. 665; Crum v. Hathaway, 32 Mo. App. 555; Kircher v. Evers, 247 S.W. 251; State ex inf. v. Mo. Utilities Co., 331 Mo. 351, 53 S.W.2d 400; State ex rel. v. Westport, 116 Mo. 582, 22 S.W. 888; State ex rel. v. Mansfield, 99 Mo. App. 146; State ex inf. v. Carterville, 183 S.W. 1094; State ex inf. v. Con. Dist. No. 1, 209 S.W. 941; State ex inf. v. Foxworthy, 301 Mo. 383, 256 S.W. 468.
Roy McKittrick, Attorney General, Covell R. Hewitt, Assistant Attorney General, and J.L. Graves for respondent.
(1) When the bonds involved in this proceeding were presented to respondent for registration, it became his duty to determine whether or not all of the conditions of law had been complied with in the issuance thereof. Secs. 2915, 2920, R.S. 1929. (2) In determining whether all conditions of the law had been complied with in the issuance of the bonds, it was the duty of respondent to determine, among other things, whether or not the bonds were being issued by a legally organized and existing school district. State ex rel. Buckley v. Thompson, 323 Mo. 248, 19 S.W.2d 714. (3) Where a pretended consolidated school district is unable to produce proper evidence to show that it is duly and legally organized district, bonds attempted to be issued by such district are not entitled to registration by the State Auditor. Secs. 2915, 2920, R.S. 1929; State ex rel. Buckley v. Thompson, 323 Mo. 248, 19 S.W.2d 714. (4) The proceedings attempted to be had purporting to divide the old "School District of Gideon" were unauthorized and absolutely void. Section 9275, Revised Statutes 1929, does not apply to town districts. Sec. 9352, R.S. 1929; State ex rel. v. Sweaney, 195 S.W. 714, 270 Mo. 685; State ex inf. v. McKown, 290 S.W. 127. (5) Under the controlling decisions of the Supreme Court of this State, the State Auditor is required to register bonds only where the applicant can produce evidence of a de jure existence. State ex rel. Buckley v. Thompson, 323 Mo. 284, 19 S.W.2d 714. (6) Relator's contention that sufficient time has elapsed since the organization of the district to preclude an attack on the validity of its organization is not well founded, for the reason that under the Missouri decisions the State Auditor is only required to recognize a de jure corporation. State ex rel. Buckley v. Thompson, 323 Mo. 284, 19 S.W.2d 718. (7) Relator's defense of laches is not available where the presentation of bond issue for registration to respondent disclosed for the first time actual facts relating to organization of relator's consolidated school district. Hunter v. Moore, 202 S.W. 544. (8) The School District of Gideon, a town district containing more than 500 children of school age, according to the last enumeration, could not legally be included in said consolidated school district, and that its inclusion made the organization of said consolidated district illegal and void. Sec. 9352, R.S. 1929; State ex rel. Buckley v. Thompson, 19 S.W.2d 714.
Original proceeding in mandamus. Relator, claiming to be a consolidated school district, seeks to compel the State Auditor to register its bonds. The auditor challenged the corporate existence of the district as a consolidated school district and refused registration. The facts follow:
On April 2, 1929, there existed a town school district designated as "School District of Gideon." On said day and at the annual school meeting in said district there was submitted to the voters the proposition to divide the district by detaching therefrom seventy-one sections of land. The proposition carried.
The detached sections of land were then organized as if a common school district with 736 children of school age. The remaining part of the town district had only 497 children of school age. On April 6, 1929, and on petition the county superintendent of schools visited the community, considered its "needs," and fixed the boundary lines of a proposed consolidated district to include the same land which, prior to April 2, 1929, constituted the town school district of Gideon. In other words, the superintendent proposed that the original town school district of Gideon be made a consolidated school district. In due course and on April 23, 1929, at a school meeting held in said community, the proposition was submitted to the voters and carried. The duly certified copies of the minutes of the meeting were filed in the offices of the county clerk and the county superintendent of schools.
Thereafter the district functioned as if a consolidated school district. It has been recognized as such by the county clerk and the state and county superintendents of schools. For more than six years its existence as a consolidated district was not questioned.
Thus it appears that the town school district of Gideon with 1233 children of school age wanted to be a consolidated school district. However, the voters of said district were confronted with the Laws of 1925, page 330 (Sec. 9352, R.S. 1929), prohibiting the inclusion of a town district with five hundred children of school age within the territory of a consolidated school district. In this situation they attempted to lay the foundation for the organization of a consolidated district by dividing the town district as above stated. There is no law authorizing the division of a town district, and the attempt to detach the seventy-one sections of land did not divide the district. [State ex inf. v. Sweaney, 270 Mo. 685, 195 S.W. 714; State ex inf. v. McKown, 315 Mo. 1336, 290 S.W. 123; State ex rel. Buckley v. Thompson, 323 Mo. 248, 19 S.W.2d 714; State ex rel. Consolidated School District v. Thompson, 325 Mo. 1170, 30 S.W.2d 603; State ex rel. Consolidated School District v. Ingram, 2 S.W.2d 113.] It follows that the attempt to organize the town school district into a consolidated school district was contrary to law and void. [Laws 1925, p. 330.]
Even so, relator contends that the district was a de facto consolidated district. We do not think so. There is no law authorizing said town district to incorporate as a consolidated district. Absent such a law, said district would not be a de facto district. In other words, there cannot be a valid de facto corporation, if there cannot be such a de jure corporation. [1 Thompson on Corporations (3 Ed.), p. 301.] Furthermore, "a de facto corporation can never be recognized in violation of a positive law." [8 Fletcher Cyc. Corporations, p. 85.]
The alternative writ should be quashed. It is so ordered. All concur.