Opinion
No. 43466.
November 9, 1953. Rehearing Denied December 14, 1953.
John M. Dalton, Atty. Gen., Stephen J. Millett, Kingston, Nolan M. Chapman, Don Chapman, Nolan M. Chapman, Jr., Chillicothe, for relators.
Harry A. Hall, Kansas City, Wilson D. Hill and Dick B. Dale, Jr., Richmond, for respondents.
This is an original proceedings in quo warranto to determine the right of respondents, as directors of Enlarged School District R-I of Ray County, Missouri, to exercise their authority, as such school directors, over a territory that lies in the northeast part of Ray County, formerly known as Common School Districts 1, 2 and 3 of Ray County.
This court appointed the Honorable Sam B. Wilcox as special commissioner to take the evidence and report his findings of fact and conclusions of law. He found that respondents had no authority over the territory in question and that our writ of ouster should be issued.
Relators contend that the territory in question is a part of Consolidated School District C-4 of Caldwell County, which was organized in accordance with sections 10493-10498, R.S. 1939 (now sections 165.277-165.290, RSMo 1949, V.A.M.S.). On the other hand, respondents contend that this territory is a part of Enlarged School District R-I of Ray County, which was organized in accordance with Senate Bill 307 of the 1947 legislative session (now sections 165.657.707, RSMo 1949, V.A.M.S.). There is no contention made by either party that statutory procedure was not followed by both school districts in question in their respective organizations. The only question before us is: In which of these school districts does the territory, formerly comprising Common School Districts 1, 2 and 3 of Ray County, belong?
Under these circumstances, the question arises as to which of the proceedings takes precedence over the other. The law is well settled that when separate authorities have concurrent jurisdiction over the same subject matter, the one in which proceedings were first commenced has exclusive jurisdiction to the end of the controversy. State ex inf. Goodman ex rel. Crewdson v. Smith, 331 Mo. 211, 53 S.W.2d 271; State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762; State ex rel. Corder School District No. R-3 v. Oetting, Mo.App. 245 S.W.2d 157. This principle of law is not disputed by the parties to this suit but both relators and respondents contend that they commenced their proceedings first.
Section 165.283 RSMo 1949, V.A.M.S. (formerly section 10495 R.S. 1939), is a part of the consolidated school law of this state. This section reads in part, "When the resident citizens of any community desire to form a consolidated district, a petition signed by at least twenty-five qualified voters of said community shall be filed with the county superintendent of public schools." This same section also provides that if the proposed district includes territory in two or more counties, the petition shall be filed with the county superintendent of schools of the county where the majority of the petitioners reside. In the case of State ex rel. Fry v. Lee, State Superintendent of Public Schools, 314 Mo. 486, 284 S.W. 129, we held that the filing of a petition in compliance with the above quoted section was the first jurisdictional act or step under the statute in the formation of a consolidated school district. In ruling that case we said, 284 S.W. loc.cit. 135:
"Immediately upon the filing of the petition, jurisdiction over the subject-matter of the proceeding was acquired by, and vested in, the superintendent of public schools of Camden county and such jurisdiction remained in him until the question of the formation of the proposed consolidated district was determined by the qualified voters of the proposed district at the special meeting called by him for the consideration of that question."
In the case at bar, a petition signed by more than twenty-five qualified voters residing in the Braymer community (a majority residing in Caldwell County) was filed with Chester A. Lemery, superintendent of public schools of Caldwell County, on May 26, 1949, requesting him to visit the community and to investigate the needs of the community, to make and post plats of a consolidated school district and to post notices of a special school meeting to vote on the organization of a consolidated school district. Lemery complied with this petition and on July 25, 1949, the qualified voters approved the proposed district, known as Consolidated School District C-4 of Caldwell County, which included the territory of what was formerly Common School Districts 1, 2 and 3 of Ray County.
Under the case of State ex rel. Fry v. Lee, supra, when the petition was filed on May 26, 1949, with the superintendent of schools of Caldwell County, jurisdiction over the subject matter of the proceedings was acquired and vested in him as of that date. This fact is not disputed by either relators or respondents.
But the real dispute between the parties in this case is: What act was necessary to be done by the county board of education of Ray County to give it jurisdiction over this territory under the reorganization law, known as Senate Bill 307 (now sections 165.657-165.707 RSMo 1949, V.A.M.S.)? Respondents contend that jurisdiction was acquired on February 24, 1949, because on that date the minutes show that a motion was made and carried that an enlarged district be formed that would include Stet Consolidated District No. 1 of Ray and Carroll Counties and Common School Districts 1, 2, 3, 20 and 21 of Ray County. Districts 1, 2 and 3 comprise the same territory that is a part of Consolidated School District C-4 of Caldwell County. Respondents contend that this is true, even though the county board of education later amended the motion of February 24, 1949, and did not include Common School Districts 1, 2 and 3 of Ray County. Respondents cite our case of State ex inf. Taylor ex rel. Kansas City v. North Kansas City, supra, which holds that when original jurisdiction attaches, it is not lost by amendments.
However, the relators contend that the first step for the organization of an enlarged school district under Senate Bill 307, supra, is the adoption by the county board of education of a plan for the reorganization of the school districts of the county as a whole and the submission of the plan of reorganization to the state board of education.
Section 6 of Senate Bill 307, supra (now section 165.673 RSMo 1949, V.A.M.S.), provides, "The county board of education, as provided for in sections 165.657 to 165.670 shall: (1) Within six months after its organization, make or cause to be made and completed a comprehensive study of each school district of the county and prepare a plan of reorganization." To give this section of the statute the respondents' interpretation, the phrase, "and prepare a plan of reorganization", would have to be ignored. This would be a violation of the rule of statutory construction which requires that every word, phrase and sentence must be given some meaning if possible. State ex rel. St. Louis Die Casting Corp. v. Morris, 358 Mo. 1170, 219 S.W.2d 359; State on inf. Huffman v. Sho-Me Power Co-op., 354 Mo. 892, 191 S.W.2d 971; Norberg v. Montgomery, 351 Mo. 180, 173 S.W.2d 387; State ex rel. McKittrick v. Carolene Products Co., 346 Mo. 1049, 144 S.W.2d 153.
This exact question was considered by the Kansas City Court of Appeals in the case of Mullins v. Eveland, Mo.App., 234 S.W.2d 639, wherein that court held that where a county board had not made plans for all the districts in the county, its jurisdiction of the subject matter had not attached, and that jurisdiction in that board would not attach by any mere tentative plans made by the board.
In the case at bar, the tentative plans of February 24, 1949, made by the Ray County Board of Education would not prevent the territory in dispute from becoming a part of Consolidated School District C-4 of Caldwell County because the first completed plans of the board of education of Ray County were not completed until January 29, 1951, and they did not include Common School Districts 1, 2 and 3.
We, therefore, hold that exclusive jurisdiction of the territory was vested in the county superintendent of Caldwell County on May 26, 1949, when the petition of more than twenty-five qualified voters was filed with him.
Respondents further contend that for this court to issue a writ of ouster in this case would create a great hardship, and since the granting of a writ of quo warranto is a matter of discretion, this court should withhold issuance of its writ.
Respondents rely upon two cases to support their contention. The first case is the St. Louis Court of Appeals case of State at inf. of McKittrick v. Seibert, 228 Mo.App. 1133, 65 S.W.2d 129, wherein the construction of a statute requiring registration was involved. The respondents were aldermen of University City who were elected at a city election held on April 5, 1932. It was contended that their election was illegal because there had not been a registration of all the qualified voters prior to that election. In construing the statute in question, the court held it did not apply to University City, and further said, 65 S.W.2d loc. cit. 134:
"The granting of a writ of quo warranto is a matter of discretion. The writ is not granted where there has been laches, or long acquiescence, or where ouster would not be in the public interest, or serve any good end or purpose."
The other case relied upon by respondents is our case of State ex inf. Otto ex rel. Harrington v. School District of Lathrop, 314 Mo. 315, 284 S.W. 135. In that case two common school districts had been annexed to the school district of the town of Lathrop, but the proper statute was not followed in making this annexation. The court held that inasmuch as eight years had elapsed since the annexation, that one of the schoolhouses of one of the common school districts had been sold that relator Harrington had no school children in the district, and that his only interest in the litigation was to get his taxes reduced, he was barred by laches, and, using its discretion, refused the writ.
The schoolhouse of Consolidated School District C-4 was located in the town of Braymer until it burned in 1949. The children are now attending school in churches and the American Legion hall. Agriculture is not at the present time being taught in that school. However, it is being taught at Stet. Respondents complain that Consolidated School District R-I of Ray County should not be deprived of taxes collected for school purposes in the territory in dispute. Bonds for building a new schoolhouse at Braymer have been voted but not sold, probably for the reason they could not be sold at a proper advantage on account of the pending of this case and other previous litigation.
Under these facts, there is no laches shown, nor do these facts call for us to use our discretion in granting our writ. To do so would be substituting our judgment for that of the county superintendent of public schools of Caldwell County and the voters of District C-4. This we cannot do.
We, therefore, hold that a writ of ouster should be granted and issued against respondents so far as any control or authority over the territory formerly known as Common School Districts 1, 2 and 3 of Ray County is concerned. It is so ordered.
All concur.