Opinion
June 21, 1928.
1. WAIVER: Right to Sue: Raised by Answer: Demurrer. If relator's right to sue is questioned in the form of an answer as well as in the form of a demurrer, it is unnecessary to consider whether that part of the return in the form of a demurrer is proper pleading, and whether by combining in the return the functions of both an answer and demurrer respondent waives his demurrer to the sufficiency of the petition.
2. MANDAMUS: Pleadings: Usual Rules. In proceedings by mandamus the alternative writ is generally taken as the first pleading, and the return takes the place of an answer; and averments sufficient to constitute a cause of action in an ordinary case are sufficient in an alternative writ of mandamus, and a plea to the return and a reply or demurrer to such pleading is provided by statute.
3. ____: Petition: Right to Sue: Incorporation: Conclusions: Consolidated School District: Facts. In a mandamus suit brought by a consolidated school district to compel the county clerk to assess taxes, it is only necessary to allege in general terms that the district was incorporated. It is only necessary to plead ultimate facts, and is not necessary to plead evidence. A petition and alternative writ in mandamus alleging that relator is and ever since a named date has been a consolidated school district, duly organized and existing under the laws of the State, being a body corporate and having the right in its name to sue and be sued, etc., is not vulnerable to the charge that it states only legal conclusions and does not state facts showing that it is a consolidated school district, with the right to sue.
4. ____: ____: ____: ____: Challenged by Affidavit. The statute (Sec. 1415, R.S. 1919) providing that where a plaintiff or defendant sues or is sued as a corporation or partnership "it shall not be necessary to prove the fact of such incorporation or partnership, unless the opposite party puts such fact in issue by affidavit filed with the pleadings in the cause," applies to incorporated school districts, and to a suit by mandamus wherein such school district is relator; and if no affidavit accompanies the return to an alternate writ alleging that relator is a consolidated school district, organized under the laws and as such has a right to sue, respondent is in no position to question the corporate character of the relator, or the regularity or legality of its incorporation.
5. MANDAMUS: School Tax Levy: Cause of Action. A petition in mandamus brought by a consolidated school district against the county clerk to compel him to assess, for taxes alleged to be due relator for school purposes, lands included in the district, which alleges the corporate character of relator; that respondent is the duly elected and qualified county clerk; that the directors of the district made and delivered to him an estimate of the funds necessary to sustain the schools in the district for a term of eight months, and that he refused and still refuses to make such assessment against the real estate in the district, states a cause of action for a writ of mandamus commanding him to assess the amount returned by the estimate.
6. ____: ____: Consolidated School District: Collateral Attack: Plats. Under the statute (Sec. 11259, R.S. 1919) a plat of a consolidated school district comprising territory in two or more counties, unless approved and signed by the county superintendent of each county, if filed with the county clerk, is of no force or effect; and a defense, by the county clerk to a mandamus suit to compel him to assess the lands in the district with school taxes, that he cannot assess the lands or determine whether they are in the district because no plat of the district was ever filed in his office, is a collateral attack upon the organization of the corporation, and a collateral attack in such a proceeding will not be entertained.
7. ____: ____: ____: Laches: General Recognition. In a mandamus suit by a consolidated school district to compel the county clerk to assess lands in the district with school taxes according to the estimate of its board of directors, a plea by respondent that relator has been guilty of laches will not avail, where nearly all the children of the disputed territory have attended the consolidated school, the proper plats and notices were properly posted and transmitted with the certificate of election to the then county clerk and he issued a certificate of valuations of the lands in dispute and certified it to the officials of the district, and there has otherwise been a general recognition of the consolidation, although ever since such attempted consolidation children in that part of the consolidated district have attended school in two common school districts therein, and such districts voted bonds for their own purposes and the taxing officials knew that said property was being assessed to maintain schools in such common school districts.
8. ____: ____: ____: ____: Interloper. The county clerk has no right to represent or litigate the rights of common school districts in the consolidated school district which have maintained schools since the consolidation was attempted, nor does he represent individuals whose lands are sought to be taxed for the support of schools in the consolidated district. If they do not complain of the mandamus suit brought by the consolidated district to compel the county clerk to assess taxes for its benefit against the lands in the common school districts, he has no right to interpose a complaint or defense for them.
Corpus Juris-Cyc. References: Corporations, 14a C.J., Section 2931, n. 819, n. 70. Mandamus, 38 C.J., Section 532, p. 832, n. 61; Section 575, p. 862, n. 39; Section 576, p. 863, n. 51; Section 578, p. 864, n. 66; Section 587, p. 868. n. 27; Section 599, p. 883, n. 40, 42; Section 640, p. 907, n. 5. Schools and School Districts, 35 Cyc., p. 846, n. 67.
WRIT AWARDED.
J.M. Haw for relator.
(1) In support of the motion to strike out, relator submits the following reasons and authorities: (a) Respondent first sets out two objections to relator's application which virtually amount to a demurrer. He subsequently pleads to the merits. The two pleadings are inconsistent and cannot stand. Sec. 1224, R.S. 1919; Long v. Towl, 41 Mo. 398; Donahue v. Bragg, 49 Mo. App. 273; Taber v. Wilson, 34 Mo. App. 89; Dunklin County v. Clark, 51 Mo. 60; Cramer v. Power Light Co., 279 S.W. 46. The section of the statutes above cited is contained in the general code. A demurrer is recognized in this court in mandamus proceedings, and there is no reason why the same principle should not obtain. State ex rel. v. Gordon, 268 Mo. 321, 223 Mo. 1; Sec. 1984, R.S. 1919. (b) Respondent also contends that it is necessary for relator to plead steps by which it was organized. This is not necessary, whether relator be a de facto or a de jure corporation. Black v. Early, 208 Mo. 303; School District v. Holmes, 53 Mo. App. 487; School District v. School District, 94 Mo. 617. This is especially true of relator, as its organization has been upheld by this court. State ex rel. v. Hackmann, 277 Mo. 56. The statutes expressly provide that school districts shall be corporations. Common School District, Sec. 11197, R.S. 1919; Town and City Districts, Sec. 11236, R.S. 1919; Consolidated Districts. Sec. 11257, R.S. 1919. (c) Respondent's third contention is that no proper evidence of the organization of relator district was ever filed in his office. This in substance is a collateral attack on the legality of the organization of relator district. Such an attack cannot be made. State ex rel. v. Hunt. 199 S.W. 944; State ex inf. v. Smith. 271 Mo. 168: State ex inf. v. Woods, 233 Mo. 380; Black v. Early, 208 Mo. 307; Bank v. Rockefeller, 195 Mo. 15; State ex rel. v. Birch, 186 Mo. 205. The legality of the organization of relator district has been recognized by this court and cannot now be questioned. State ex rel. v. Hackmann, 277 Mo. 56. (2) If it be held that the motion to strike out respondent's return should not be sustained, still on the facts in the case the writ should be made peremptory. Technical objections to proceedings to organize consolidated school districts are not favored, since the school law was designed as a method workable by citizens not learned in the law and, therefore, no strict or technical construction is to be put on it. State ex rel. Morrison v. Simms, 201 S.W. 910; State ex inf. v. Jones, 266 Mo. 191; State ex inf. v. Clardy, 267 Mo. 371; State ex rel. Richart v. Stoufller, 197 S.W. 248; State v. Consolidated School District, 238 S.W. 820. (3) Respondent cannot avail himself of his own misconduct and failure to perform his duties as a defense to this action. Whatever delay there has been, has been brought about by him and the officials of Common School Districts No. 20 and 21. (4) Under all the facts in this case, it is the duty of the county clerk to extend the taxes in favor of relator. Sec. 11183, R.S. 1919; State ex rel. v. Hunt, 199 S.W. 944; State ex rel. v. Riley, 85 Mo. 156; State ex rel. v. Byars, 67 Mo. 706; State ex rel. v. Patton, 108 Mo. App. 26; State ex rel. v. Burford, 82 Mo. App. 343.
J.M. Massengill and Galliran Finch for respondent.
(1) The petition and alternative writ are insufficient in law to entitle relator to the relief prayed for, in that only conclusions of law are pleaded as to its right to relief, and to its legal capacity to sue and not the facts as to such right and capacity. State ex rel. v. Shinnick, 208 Mo. App. 287; State ex rel. v. Hudson, 226 Mo. 265; School Dist. v. School Dist., 94 Mo. 612; State ex rel. v. Thompson, 293 S.W. 398; Curry v. Cabris, 37 Mo. 334; State v. Everet, 52 Mo. 89; Hambleton v. Town of Dexter, 89 Mo. 191; State ex rel. v. Reynolds, 276 Mo. 694; Murrill on Mandamus, sec. 255; High on Ex. Leg. Rem. (3 Ed.) sec. 450; Spelling on Inj. Ex. Leg. Rem., sec. 1567; Bliss on Code Pleadings, secs. 186, 246; Clark on Corporations, p. 42. (2) The peremptory writ should not issue for the reason the relator is guilty of such laches as bars any relief, if ever entitled thereto. State ex rel. v. Gibson, 187 Mo. 555; High on Ex. Leg. Rem. (3 Ed.) p. 38; Spelling on Inj. Ex. Leg. Rem. (2 Ed.) secs. 1382, 1469; 33 C.J. 533; 38 C.J. 21. (3) The question as to whether any land in New Madrid County ever became a part of relator district was not raised in the case involving the registration of bonds of relator district. State ex rel. v. Hackmann, 277 Mo. 56. (4) Relator says in its brief that the respondent collaterally attacks its organization. The respondent merely contends that the territory lying in New Madrid County was never a part of relator district and that nothing was on file in his office that made it his duty to extend taxes on the lands in New Madrid County. State ex rel. School Dist. v. Curtright, 205 S.W. 248. (5) In its motion to strike respondent's return and in its brief relator attacks the return and says it is inconsistent, and relies on Sec. 1224, R.S. 1919, and cases cited. The Code of Civil Procedure does not apply to mandamus proceedings, and the cases cited in relator's brief are not controlling. State ex rel. Curran v. Williams, 96 Mo. 13; Smith v. County Court, 19 Mo. 433; State ex rel. v. Jones, 155 Mo. 573.
The relator filed in this court his petition for writ of mandamus to compel the respondent, Clerk of the County Court of New Madrid County, to assess, for taxes claimed to be due relator for school purposes, land in that county included in relator district.
Alternative writ was issued, to which respondent filed return, setting up four defenses to the writ: "First, that the petition and alternative writ did not show facts sufficient to entitle relator to the relief asked; second, that the petition and alternative writ did not show on its face legal capacity in relator to sue; third, facts are set out which respondent claims show that the relator is not entitled to maintain the action because it was never properly organized as a consolidated school district, and which show that it has no right to tax for the support of said district the land described (in the petition) in New Madrid County, and that school districts 20 and 21 in New Madrid County included such lands and had voted bonds to maintain schools in such districts; and, fourth, laches, which respondent claims bars relator's right to recover.
Relator filed a motion to strike out the return on the ground that it stated no defense to the action and no facts which would prevent the relief prayed for. This motion was taken with the case. Thereupon the relator, reserving his right to question the sufficiency of the return, filed a reply denying specifically the facts stated in the return, and setting up affirmative facts in relation to the issues tendered.
This court then appointed as commissioner Honorable Harry C. Blanton, of Sikeston, Missouri, to take evidence upon the issues. This evidence was accordingly taken and is before us for consideration.
I. Relator complains that the return combines both the functions of a demurrer and an answer, and therefore having answered the respondent waives his demurrer to the sufficiency of the petition and cannot question relator's right to Pleading. sue. Since the relator's right to sue is questioned in the form of an answer as well as demurrer, it is unnecessary to consider whether that part of the return in the form of a demurrer is proper pleading.
Respondent contends that the general rules of the pleading do not apply to this case. The rule is that in a proceeding of this kind the alternative writ is generally taken as the first pleading and the return takes the place of an answer. [State ex rel. Wagner v. Fields, 263 S.W. 853.] Many other cases may be cited to the same effect. Section 1290, Revised Statutes 1919, provides that Article VI, Chapter 12, relating to amendments of pleadings shall apply to writs of mandamus. Some general rules of pleadings are applied to mandamus, by Sections 1983 and 1984, which provide for a plea to the return and reply or demurrer to such pleading. Averments sufficient to constitute a cause of action in an ordinary case would be sufficient in an alternative writ of mandamus.
The complaint of respondent is that the petition simply states conclusions and does not plead facts which show that the relator is in fact a consolidated school district with a right to sue. Section 1244, Revised Statutes 1919, provides that it shall not be necessary to plead evidence, and it has many times been held that it is only necessary to plead ultimate facts. In this case the petition and alternative writ allege that relator is, and ever since the 17th day of May, 1917, has been a consolidated school district of Mississippi and New Madrid counties, duly organized and existing under the laws of the State of Missouri, being a body corporate and having the right in its name to sue and be sued, and possessing the same corporate powers and governed the same as other school districts. We have been pointed to no ruling of this court where an averment of that character was held an insufficient statement of the incorporation of the party making it. It is generally the practice, when a corporation brings a suit, to state as the ultimate fact its corporate character and its right to sue in that form.
II. The respondent is in no position to question the corporate character of the relator. Section 1415, Revised Statutes 1919, provides that where a plaintiff or defendant sues or Affidavit. is sued as a corporation or a partnership "it shall not be necessary to prove the fact of such incorporation or partnership, unless the opposite party puts such fact in issue by affidavit filed with the pleadings in the cause."
In a general way the rules of pleading apply to mandamus as well as to any other case. Section 1415 has been generally applied where suit is by partnership or corporation. [McCaskey Register Co. v. Blakeney, 224 S.W. 62; Nephler v. Woodward, 200 Mo. 179, l.c. 191; Lawrence Lumber Company v. Thomas Lumber Company, 253 S.W. 783.]
It applies to municipal as well as to other corporations. [Walker v. Point Pleasant, 49 Mo. App. 244, l.c. 247.] In that case Judge ROMBAUER, who wrote the opinion, set out the allegation in the petition:
"That the defendant is a municipal corporation under the laws of said State, located in said county, with power and authority to sue and be sued." The court overruled the objection that the petition failed to state what sort of a corporation the defendant was and by what law created. It was also held that the defendant could not both demur and answer, and to question the corporate character the issue would have to be raised by affidavit.
The rule applies to school districts. [School District v. Young, 152 Mo. App. 304, l.c. 312. See Inhabitants v. Fox, 84 Mo. 65.] The respondent cannot in this proceeding question the regularity or legality of the incorporation of Consolidated School District No. 1 of Mississippi and New Madrid counties.
III. The petition and alternative writ clearly state a cause of action. After alleging the corporate character of the plaintiff it alleges that the district embraces certain lands in Cause of New Madrid County, describing them; that the respondent Action. is the clerk, duly elected and qualified, of the County of New Madrid, that the directors of Consolidated School District No. 1 made and delivered to him an estimate of the funds necessary to sustain the schools in said district for an eight months' term, together with the amount necessary to meet the bonded indebtedness, etc., that the respondent on the receipt of such estimate was in duty bound to assess as taxable the real estate in that part of the district lying in New Madrid County for the purposes of said district, and that he refused and still refuses to make such assessment. It then prays for a writ of mandamus commanding him to proceed to assess the amount returned by said estimate.
IV. Respondent's counsel at one point in the proceeding made this statement: "We are not necessarily attacking your organization; we are saying you have not got this particular territory in it." But no such point is made in the brief, where respondent insists that the relator was never Collateral regularly incorporated, that it cannot tax the land Attack: in New Madrid County because no plat of the lands in Plats. the district were ever properly signed by the Superintendent of Schools for New Madrid County, nor filed in the office of the County Clerk of that county. Plainly, if such are the facts, and if, under the pleadings, they could be established as such, on respondent's theory, the district was never incorporated. Section 11259 requires that in a consolidated school district comprising territory in two or more counties, all plats and notices required by the section for organizing such a district shall not be filed or posted, "unless approved and signed by a county superintendent of all counties in which any part of such proposed district shall lie."
No notice or plat posted or filed would be of any force or effect unless signed by the county superintendent of each county in which territory was included in the consolidated school district. Thus the claim that the district, for the reason mentioned, did not include the land in New Madrid County is a collateral attack upon the organization of the corporation, and such a collateral attack in a proceeding of this kind will not be entertained. [State ex rel. School District v. Hunt, 199 S.W. 944.] Respondent points out that the petition in that case, besides a general allegation of the corporate character of the relator, sets out the specific facts showing the organization. The language of the opinion, however, clearly shows that all such allegations are superfluous. It was only necessary for the petition to allege in general terms that the relator was incorporated.
Respondent cites State ex rel. Consolidated School District v. Curtwright, 205 S.W. 248, where the St. Louis Court of Appeals held that the school district bringing the suit was not properly organized. In that case the petition and the alternative writ did not state in general terms that the relator was incorporated, but set out the specific facts and all the steps leading up to the organization, thus tendering the issue on those very facts. And the trial court found against the relator on those facts. The Court of Appeals thus stated the issue, l.c. 251: "In the case at bar both parties proceeded to trial on the issues tendered by the petition and answer; relator undertaking to sustain the regularity of the proceedings, the respondent denying them." Nothing in that case supports respondent's position.
Relator produced a plat of the district, showing the inclusion of the land described in the petition in New Madrid County, with proper signatures, and evidence that a copy of such plat was filed in the office of the County Clerk of New Madrid County, and that the signature of the Superintendent of Schools for New Madrid County was authorized by him.
Respondent attacks the plat by offering evidence that such a plat, so signed, was not on file in said office after respondent took charge as county clerk in 1919, two years after the organization of relator district. This was a collateral attack upon the corporate character of relator, and for reasons mentioned respondent was not in position to make such attack collaterally or directly. In taking such evidence before the commissioner relator preserved its objections to the relevancy of the evidence.
V. The respondent claims that the relator was guilty of laches because it is alleged in the return that after the organization of the district in 1917 all the children in that part of the district included in New Madrid County have for the past Laches. ten years continually attended the school in two common school districts, 20 and 21, in New Madrid County, the voters have voted at elections held in New Madrid County, and the taxing authority of said property of inhabitants of New Madrid County knew that said property was being assessed by said common school districts in New Madrid County. It is further alleged that school districts numbers 20 and 21 in New Madrid County, from which the territory in that county was taken for Consolidated School District Number One, voted bonds for the purposes of those districts.
The evidence, however, shows that nearly all the children in the disputed territory had attended the school in the Consolidated School District No. 1, that the voters there had voted in that district; some of them had served as clerk and as judge of election in that district.
The evidence is scarcely disputed and is conclusive that the proper notice and plats were posted up with the names of Mrs. Graham. Superintendent of Schools of Mississippi County, and Mr. Swan, Superintendent of Schools of New Madrid County, attached, and that the plat and certificate of election were transmitted to Ransburg, then Clerk of the County Court of New Madrid County.
After the certificate of election was sent to Mr. Ransburg he issued a certificate of the authorized valuation of the land under consideration here, and certified it to the officials of Consolidated School District Number 1. No doubt he did that because of the certificate of consolidation presented to him and the filing of the plat. These facts show the general recognition of the consolidation, with the exception of the collection of taxes on this particular land.
It must be borne in mind at this point that school districts 20 and 21 in New Madrid County are not parties to the proceeding nor complaining here. This court held in State ex rel. School District No. 1 v. Hackmann, 277 Mo. 56, a proceeding by mandamus to compel the State Auditor to register bonds voted and issued by relator, that the respondent State Auditor did not represent and had no right to represent or litigate the rights of those school districts. The same is true of the county clerk here. He does not represent school districts numbers 20 and 21. It may be said further that he does not represent individuals whose land is sought to be taxed. Those very persons, at least a majority of them, whose lands the relator seeks to have extended for taxation in the district, have recognized the district, sent their children to school there, voted there and served as officials there. They are not complaining and the respondent has no right to complain for them under that ruling. In the Hackmann case some of the very facts alleged here to show laches or to show want of organization were determined against respondent by this court. The persons whose land is sought to be taxed are not complaining; the respondent has only a ministerial duty to perform; he is in no position under his return to question either the incorporation of relator nor the inclusion of the land in New Madrid County within the district.
The peremptory writ is awarded. All concur.