UTT v. OSTER

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Docket Number

No. 42487.

Attorney(S)

Wilson D. Hill, Russell D. Farris and Harry A. Hall for appellants. The court erred in holding that plaintiffs' petition did not state a cause of action for a declaratory judgment. Secs. 1126, 1127, 1137, Mo. R.S.A.; Lowland School Dist. No. 32 v. Wooldridge School Dist. No. 34, 216 S.W.2d 545; School Dist. of Kansas City v. Smith, 111 S.W.2d 167; Consolidated Dist. No. 8 v. Hooks, 222 S.W.2d 355; Crollard v. Northern Life Ins. Co., 200 S.W.2d 375; Stewart v. Shelton, 201 S.W.2d 395; Hydesburg Common School Dist. v. Rensselaer Common School Dist., 218 S.W.2d 833; City of Joplin v. Jasper County, 161 S.W.2d 411, 340 Mo. 441; Tietjens v. St. Louis, 222 S.W.2d 70; City of Nevada v. Welty, 203 S.W.2d 459. Nolan M. Chapman, Don Chapman and Nolan M. Chapman, Jr., for respondents. (1) The petition of appellants fails to state a claim on which relief can be granted. It shows on its face that it is filed by individuals who are attempting to assert a public right which can only be enforced by public officers in the name of the public. State ex inf. v. Taylor, 208 Mo. 442; Smith v. Hendricks, 136 S.W.2d 449; Secs. 1782, 12942, R.S. 1939. (2) It shows on its face that it is collateral attack on the corporate existence of the defendant school district, whose corporate organization can only be challenged in a direct proceeding by the state. State ex rel. Smith v. Gardner, 204 S.W.2d 319; State ex inf. v. Wymore, 119 S.W.2d 941; Central States Missouri Oil Co. v. St. Louis, 111 S.W.2d 215. (3) A school district is a public corporation. Kansas City v. School Dist. of Kansas City, 356 Mo. 364, 201 S.W.2d 930. (4) A director of a consolidated school district is a public officer. State ex rel. v. Gardner, 204 S.W.2d 319; State ex rel. v. Smith, 271 Mo. 168, 196 S.W. 17; State ex rel. v. Ellis, 329 Mo. 124, 44 S.W.2d 129. (5) Under the earliest common law and by our statutes, the exclusive remedy by which the sovereign or state determines the legality of a claim which a party asserts to the use or exercise of an office or franchise, and ousts the holder from its enjoyment, is by the use of the legal remedy of quo warranto. State ex rel. v. Smith, 271 Mo. 168, 196 S.W. 17; State ex inf. v. Wymore, 343 Mo. 98, 119 S.W.2d 941; State ex inf. v. Taylor, 208 Mo. 442; State ex rel. v. Murphy, 148 S.W.2d 527; Secs. 1782-1787, R.S. 1939. (6) A private person cannot proceed by quo warranto in his own name without the interposition of a public officer. State ex rel. v. Wilke Land Co., 162 S.W.2d 846; State ex rel. Black v. Taylor, 208 Mo. 442; Sec. 1782, R.S. 1939. (7) Whether Consolidated District C-4 of Caldwell County, Missouri, was legally organized and whether the individual respondents were legally elected as directors can only be questioned by the state in a direct proceeding by quo warranto. State ex rel. v. Gardner, 204 S.W.2d 319; State ex rel. Consolidated School Dist. v. Hunt, 199 S.W. 944; State ex rel. Consolidated School Dist. v. Jones, 320 Mo. 353, 8 S.W.2d 66; State ex rel. Frank v. Goben, 167 Mo. App. 613; State ex rel. Musser v. Birch, 186 Mo. 205. (8) Relief under the Declaratory Judgment Act is unnecessary when a full and adequate remedy is provided by another well known form of action. O'Mera v. New York Life Ins. Co., 169 S.W.2d 116; Liberty Mutual Ins. Co. v. Jones, 344 Mo. 932, 130 S.W.2d l.c. 953; Koenig v. Koenig, 191 S.W.2d 269; Brindley v. Meara, 198 N.E. 301, 101 A.L.R. 687; Kansas City Bridge Co. v. Terte, 131 S.W.2d 587; Finley v. Smith, 178 S.W.2d 326. (9) A finding in the case at bar would not necessarily stabilize or settle the relations between the parties because the Attorney General or Prosecuting Attorney could file a quo warranto proceeding regardless of the pendency of the case at bar or a decision therein. State v. McSpaden, 137 Mo. 628; City of Joplin v. Jasper County, 161 S.W.2d 411; Webb-Boone Paving Co. v. State Highway Comm., 351 Mo. 922, 173 S.W.2d 580.

Judges

[22] TIPTON, J.

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JUNIOR UTT, ROLLIN McELWEE and ALLEN WADLEY, Appellants, v. ALLEN OSTER, BEN LONG, JOHN MOHLER, WILLIAM SHIVLEY, JOE PETREE, THURSTON KINCAID, D.I. FARRAR and CONSOLIDATED SCHOOL DISTRICT C-4 OF CALDWELL COUNTY, MISSOURI, Respondents.

HEADNOTE

SCHOOLS AND SCHOOL DISTRICTS: Elections: Parties: Actions: Quo Warranto: Declaratory Judgment Act: Attack on Consolidated School District: Improper Parties and Form of Action. Property owners, taxpayers and directors of former common school districts may not bring a declaratory judgment action attacking the validity of a consolidated school district on the grounds of an alleged illegal election, but the sole remedy is a quo warranto action brought by the state.

[22] TIPTON, J.

This is an appeal from an order of the Circuit Court of Ray County dismissing appellants' petition for a declaratory judgment action wherein the appellants seek to test the validity of the organization of the Consolidated School District C-4 of Caldwell County, Missouri.

The appellants are property owners, taxpayers and directors of school districts nos. 1, 2 and 3, all common school districts in Ray County, which with seventeen other common school districts were included in Consolidated School District C-4 of Caldwell County, in an election held July 25, 1949. The appellants bring this action for themselves and all others who wish to join.

The personal respondents are the officers and directors of Consolidated School District No. C-4 of Caldwell County.

Appellants' petition alleges that the election of July 25, 1949, was illegal and void because the notices were not given as required by law; that the election was not conducted as required by the statutes; that there was fraud in the conduct of the election resulting in the wrongful intimidation and disenfranchisement of the voters; and that the ballots were not in the form required by the statutes nor the election secret as required by the State Constitution. Appellants further allege that the property and assets of the common school districts have been demanded by respondents; that appellants were uncertain as to their rights, status and duties as directors of the common school districts; and that as property owners and taxpayers they were uncertain as to their obligations to pay school taxes, the amounts due and the school district authorized to levy and collect such taxes. Declaratory relief appropriate to each allegation is prayed.

This Court en Banc, in the case of Spiking School District No. 71, DeKalb County, Missouri, et al., v. The Purported "Enlarged School District R-II, DeKalb County, Missouri," a Purported Municipal Corporation, et al., No. 42,019, 362 Mo. 842, 245 S.W.2d 13, concurrently decided herewith, held that only the State in a direct proceeding in quo warranto has the right to challenge the validity of a consolidated school district, and affirmed the judgment of the trial court in dismissing a declaratory judgment petition which sought to challenge the validity of the enlarged school district.

For the reasons assigned in that case, the judgment of the Circuit Court of Ray County is affirmed. All concur.

JUNIOR UTT, ROLLIN McELWEE and ALLEN WADLEY, Appellants, v. ALLEN OSTER, BEN LONG, JOHN MOHLER, WILLIAM SHIVLEY, JOE PETREE, THURSTON KINCAID, D.I. FARRAR and CONSOLIDATED SCHOOL DISTRICT C-4 OF CALDWELL COUNTY, MISSOURI, Respondents.

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