Opinion
February 1, 1941.
1. PLEADINGS: Motion for Judgment. In a quo warranto proceeding where relators filed a motion for judgment on the pleadings they thereby abandoned their reply for the purpose of the motion.
Respondents likewise, by filing a motion for judgment on the pleadings, take the position that though the allegations pleaded by the relators are true they state no cause of action.
Where both parties filed motions for judgment on the pleadings, each party's right to a judgment must be determined by his own motion as though no motion had been filed by the other party.
2. QUO WARRANTO: Motion for Judgment by Relators. In quo warranto, in considering relators' motion for judgment on the pleadings, the court cannot consider allegations contained in relators' petition which are denied by respondents' return but must look alone to the well pleaded allegations of the return.
3. QUO WARRANTO: School Districts. In a proceeding by quo warranto to oust respondents for illegally usurping the rights and privileges of directors of a pretended school district and to declare the proceeding for the organization of the district void where the respondents' return alleged that a consolidated school district was dissolved; that a certain portion of the territory of said consolidated school district was organized as a common school district; that a notice of the meeting at which it was claimed that a consolidated school district was dissolved, notified said resident voters and taxpayers of the school district there would be a meeting of such, but the return did not allege that the notice stated the time, place or purpose of the meeting, it was not sufficient.
While the statute, Section 9331, Revised Statutes 1929, expressly requires that such meeting be held at the schoolhouse in said district it does not expressly require the notice to state the time and purpose of the meeting; such things being implied.
A notice of such meeting which does not state the time of the meeting is no notice at all, and the purpose should be stated.
4. QUO WARRANTO: Exhibits. In a quo warranto to oust usurping directors of an alleged school district, exhibits to respondents' return form no part of the pleadings and cannot be considered on demurrer.
But such exhibits may be considered in explanation of allegations in the pleadings, and may be considered as admissions against interest of the party vouching for them.
5. QUO WARRANTO: School Districts. In quo warranto to oust usurping directors of an alleged school district, exhibits filed by respondents showing the minutes of the meeting to dissolve a consolidated school district, of which the alleged district was a part stating that it was held at six o'clock A.M., and other particulars, at a rural schoolhouse and not at the high school maintained in the district and that no notice was posted in a town in said district, the consolidated district was not legally dissolved.
6. ELECTIONS: School Districts. Elections should be so held as to afford a free and fair expression of the popular will and mandatory statutory requirements must be followed.
Fraud in a consolidated school district election is a proper subject of inquiry in quo warranto.
Section 9331, Revised Statutes 1929, requires a meeting for the dissolution of a consolidated school district to be held at "the schoolhouse in the district."
The statute does not say the meeting shall be held at a schoolhouse or at some or any schoolhouse, but means that the meeting should be held at the central schoolhouse where the high school is maintained.
While the statute does not expressly provide the time of day for holding such meeting, nor the place where the notices shall be posted, but where the meeting was held at six oclock in the morning, at a remote schoolhouse, and no notice was posted in part of the district, in a village which contained two hundred inhabitants, where there were six common school districts in the consolidated school district and only twenty-nine votes were cast from the entire district, though six o'clock in the morning was not an unusual hour in the morning for an election to start, the statute requiring the polls to be opened at six A.M. and to remain open continuously until seven P.M., which was not done at the meeting, from respondents' return showing such facts, the dissolution of the consolidated district was fraudulent and void and a proceeding to organize a common district and elect directors was also void.
The Supreme Court can judicially note the fact that the Village of Watson in Atchison County contains more than two hundred inhabitants and that the consolidated district involved comprised at least two other districts besides the Watson District.
Therefore relators' motion for judgment on the pleadings is sustained and a corresponding motion of respondents is overruled, and the election held purporting to dissolve the consolidated school district and to organize a common school district is null and void.
RESPONDENTS OUSTED.
Roy McKittrick, Attorney General, Covell R. Hewitt, Assistant Attorney General, Henry B. Hunt and James F. Gore for relators.
(1) Any violation of the law, affecting the results of an election, and any irregularity in an election which "probably prevented a free and full expression of the popular will," is fatal and renders the election void. State v. Arnold, 278 Mo. 672, 213 S.W. 834; O'Laughlin v. Kirkwood, 107 Mo. App. 302; Bowers v. Smith, 111 Mo. App. 62, 20 S.W. 101, 16 L.R.A. 754; McCrary on Elections (4 Ed.), p. 171; 9 R.C.L., p. 1093, sec. 102. (2) "The schoolhouse in the district" at which the election to dissolve the district must be held (Sec. 9331) can, in the case of a consolidated district, refer only to the central schoolhouse, and not to just any one of the country schoolhouses in the district. Sec. 9331, R.S. 1929. (3) The proper hour for holding an election to dissolve a consolidated school district is 2 P.M., and 6 o'clock A.M. on September 23, is an unlawful and unreasonable hour for holding such a meeting. Secs. 9283, 9341, 9353, R.S. 1929; 23 C.J. 170. (4) The statute requires all notices of general and special school elections, including that to dissolve a city, town or consolidate district, to be posted by the clerk of the district. Secs. 9310, 9331, 9333, R.S. 1929. (5) A meeting to dissolve a consolidated school or city district, like all other school elections, must be called by the board, and not by any ten taxpayers. Secs. 9310, 9327, 9331, 9333, 9341, R.S. 1929. (6) Fraud may be the subject of inquiry on quo warranto into consolidated school district elections. State ex rel. Miller v. Consolidated District No. 7, 318 Mo. 865, 1 S.W.2d 94.
Clayton W. Allen for respondents.
(1) Where relators' petition states a cause of action, and the respondents' answer states a good defense, the respondents' answer, being undenied, respondents are entitled to a judgment on the pleadings, both parties having moved for judgment on the pleadings. Leahy v. Mercantile Trust Co., 247 S.W. 402, 296 Mo. 561. (2) Where both parties move for judgment on the pleadings, judgment should go for the respondents if the complaint is insufficient, or if the answer states a good defense. Leahy v. Mercantile Trust Co., 247 S.W. 402, 296 Mo. 561. (3) Where both parties move for judgment on the pleadings, the parties impliedly concede there is no issue of fact requiring proof. 49 C.J. 684, sec. 971. (4) Matters not well pleaded need not be denied and are not confessed by motion for judgment on the pleadings. State ex rel. Wirt v. Cass County, 119 S.W. 1010, 137 Mo. App. 698. (5) In this case relators' reply is bad for the reason that the first three paragraphs are repetition of matters set out in the relators' information. West v. West, 46 S.W. 139; 49 C.J. 334, sec. 408. (6) In the case at bar, relators' reply is bad for the reason that the last paragraph is neither a general nor special denial, leaving to the conjecture of the court what is denied and what is not denied. Long v. Long, 79 Mo. 644. (7) Relators' motion for judgment on the pleadings should be overruled for the reason that all facts well pleaded in the respondents' answer herein are taken as true and stand admitted for the purposes of said motion. State ex rel. Finch v. Duncan, 193 S.W. 950, 195 Mo. App. 541; State ex rel. Attorney General v. Simmons Hdw. Co., 18 S.W. 125, 109 Mo. 118. (8) Relators' reply, for the purpose of their motion, cannot be considered for the reason that the filing of the motion for judgment on the pleadings is a withdrawal of, or abandonment of, said reply. Cammann v. Edwards, 100 S.W.2d 850. (9) Six o'clock A.M. is not an unusual hour for an election to start; the statutes specifically prescribe this as the hour for starting elections. There is no other statute providing or specifying the hour at which a school election for the purpose of dissolving a consolidated school district shall commence. "Sec. 10194. Polls, When Opened and Closed. — The judges of each election hereafter to be held, general or municipal, shall open the polls at six o'clock in the morning and continue them open until seven (7) o'clock in the evening, unless the sun shall set after seven (7) o'clock, when the polls shall be kept open until sunset, except in cities in the State of twenty-five thousand (25,000) inhabitants or upward, when the polls shall be opened at six (6) o'clock in the morning and be kept open until seven (7) o'clock in the evening (R.S., 1919, Sec. 4764)." Sec. 10194, R.S. 1929.
The Attorney General, at the relation of certain persons, has filed in this court an information in the nature of quo warranto alleging that respondents have illegally usurped the rights and privileges of directors of a pretended common school district, No 200, in Atchison County, setting forth the reasons why it is claimed said district has not been legally organized and why respondents have no valid title to such offices, and praying this court to oust respondents from such pretended offices and to declare the proceedings for the organization of said pretended district to be null and void.
Respondents filed their return, to which the relators first filed a reply and then a motion for judgment on the pleadings, whereupon respondents also filed a motion for judgment on the pleadings.
This state of pleadings confronted us in the case of Cammann v. Edwards, 340 Mo. 1, 100 S.W.2d 846. Following that case, we must hold: that, by filing their motion for judgment on the pleadings, relators abandoned their reply for the purpose of the motion, that is, by the motion they claim that even if the facts well pleaded in the return be true they constitute no defense; likewise respondents, by their motion for judgment on the pleadings, take the position that even though the allegations well pleaded by relators be true they state no cause of action. Where both parties file motions for judgment on the pleadings, each party's right to a judgment must be determined from a consideration of his own motion as though no motion had been filed by the other party.
First we will consider the motion filed by relators. In doing so we cannot consider the allegations contained in relators' petition, for they are denied in respondents' return, but must look alone to the well pleaded allegations of the return.
The return, among other things, alleges: that Watson Consolidated School District No. 2 was organized in 1915; that on September 23, 1939, the consolidated district was dissolved by a vote of more than two-thirds of the resident voters and taxpayers of said district present and voting; that said election was duly called by posting in five public places in said district notices signed by ten resident voters and taxpayers; that on October 9, 1939, a certain described portion of the territory formerly in said consolidated district was organized as a common school district, at a meeting held at the High Creek schoolhouse pursuant to a notice posted in a public place more than fifteen days before the meeting; that at said meeting respondents were duly elected and qualified as directors. The return also alleges that the consolidated district failed to furnish adequate school facilities, but this is an immaterial allegation as the present existence of the consolidated district depends upon the validity of the proceedings to dissolve it.
The allegation in the return as to notice of the September meeting, at which it is claimed the consolidated district was dissolved, is "that said notices notified said resident voters and taxpayers of said district of the fact that there would be a public meeting of said resident voters and taxpayers of said Watson Consolidated School District Number Two." The return does not allege that the notices stated the time, place or purpose of the meeting. Section 9331, Revised Statutes Missouri, 1929 (Mo. Stat. Ann., sec. 9331, p. 7171), expressly requires the notices to state that the meeting will be held "at the school house in said district." The statute does not expressly require the notices to state the time and purpose of the meeting, but, of course, these things are implied. A notice which does not state the time of meeting is no notice at all and, in fairness, the purpose should also be stated.
The return fails to show that the election to dissolve the consolidated district was held on proper notice. If this election is void, the further proceedings to organize a common district and elect directors are also void.
Respondents attached to their return certain exhibits, alleging in the return that they were attached to and made a part of the return. It has been repeatedly held that such exhibits form no part of the pleading and cannot be considered in passing on a demurrer. [Robinson v. Levy, 217 Mo. 498, 117 S.W. 577; Pullis v. Somerville, 218 Mo. 624, 117 S.W. 736; State ex rel. v. Haphe, 326 Mo. 460, 31 S.W.2d 788.] But we have also held that such exhibits may be considered in explanation of allegations in the pleading. State ex rel. v. Joynt, 341 Mo. 788, 110 S.W.2d 737; Homan v. Employers Reinsurance Co., 345 Mo. 650, 136 S.W.2d 289; and such exhibits may be considered as admissions against interest of the party vouching for them.
So far as material here, said exhibits are as follows: Exhibit A purports to be the minutes of the meeting of September 23, 1939. It states that the meeting was held on said date at six o'clock A.M. at the High Creek School House; that five notices, signed by ten qualified resident voters and taxpayers, were posted on September 6 in five specified places stating that a meeting would be held at said time and place for the purpose of voting on a proposition to dissolve said consolidated school; that twenty-six votes were cast for, and three against, dissolution.
Exhibit B purports to be the minutes of the meeting of October 9, 1939; states that one notice of the meeting was posted in a specified place; that the vote was forty-one for, and one against, organizating a common district; that a plat of the district was adopted and respondents elected as directors.
Relators contend that our statutes require all special school district meetings to be called by the school board and all notices posted by the clerk. We think there is merit in this contention, but it is unnecessary for us to pass upon such question, for other reasons compel us to hold that the consolidated district has not been legally dissolved.
Respondents' exhibits show that the election to dissolve the district was held at six o'clock in the morning, at a rural schoolhouse and not at the high school maintained in the district; that no notice of such meeting was posted in the Town of Watson and only twenty-nine votes were cast.
Elections should be so held as to afford a free and fair expression of the popular will and mandatory statutory requirements be followed. [State ex rel. v. Arnold, 278 Mo. 672, 213 S.W. 834; O'Laughlin v. City of Kirkwood, 107 Mo. App. 302, 81 S.W. 512; Bowers v. Smith, 111 Mo. 45, 20 S.W. 101.] Fraud in consolidated school district elections is a proper subject of inquiry in quo warranto. [State ex rel. v. Consolidated District, 318 Mo. 865, 1 S.W.2d 94.]
Watson Consolidated School District No. 2 must embrace two other districts besides the village district of Watson. [Sec. 9345, R.S. 1929, Mo. Stat. Ann., sec. 9345, p. 7182.] As before stated, Section 9331, supra, requires a meeting for the dissolution of a consolidated district to be held at "the schoolhouse in the district." The statute does not say the meeting shall be held at a schoolhouse or at some or any schoolhouse. We think it means that the meeting shall be held at the central schoolhouse where the high school is maintained, which in this case would be at the schoolhouse in Watson, and near which, it may be presumed, the greater number of the district inhabitants reside.
The statutes do not expressly provide the time of day for holding such a school meeting, nor the place where the notices shall be posted, but the facts that the meeting was held at six o'clock in the morning, before sunrise, at a remote schoolhouse, and no notice posted in the most populous part of the district, strongly indicate that those sponsoring the meeting did not desire a full and fair expression of all the voters of the district. The further fact that only twenty-nine voters participated in the election indicates that a full and fair expression was not had.
On this motion we cannot consider the allegations of the information as to the number of votes cast at other elections, but we can judicially note the fact that the Village of Watson contains more than two hundred inhabitants. We also know that the consolidated district comprises at least two other districts besides the Watson district. Respondents' brief admits that there are six schoolhouses, and presumably six common districts, in the consolidated district. Respondents' exhibits show that in the pretended election to organize a common district forty-two votes were cast from a small portion of the district while in the election to dissolve the consolidated district only twenty-nine votes were cast from the entire district.
Respondents argue that six o'clock in the morning is not an unusual hour for an election to start, citing the general election statute requiring the polls to open at six A.M., but that statute requires the polls to remain open continuously until seven P.M., which was not required and was not done at the election now being considered.
From respondents' return we conclude that the election of September 23, 1939, to dissolve the consolidated district, was fraudulent and void. It follows the proceedings to organize a common district and elect directors are also void. Therefore relators' motion for judgment on the pleadings must be and is sustained and the corresponding motion of respondents is overruled.
It is therefore adjudged by the court: that the election of September 23, 1939, purporting to dissolve Watson Consolidated School District No. 2, be and is hereby declared null and void; that the further proceedings purporting to organize a common school district be and are hereby declared null and void; and that respondents be and are ousted from their claimed offices as school directors and excluded from all rights, privileges and franchises as such directors; and that the costs of this suit be and are adjudged against respondents. All concur.