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THE

SOUTHWESTERN REPORTER.

VOLUME 88.

Court of Appeals, where, on January 20, STATE ex inf. SUTTON, Pros. Atty., p. 1903, the judgment of the lower court was FASSE.

affirmed (71 S. W. 745); the St. Louis Court (Supreme Court of Missouri, Division No. 1.

of Appeals speaking through Goode, J. A reJune 15, 1905.)

hearing was granted on the suggestion that 1. SCHOOL DIBECTORS - OFFICES-APPELLATE

the St. Louis Court of Appeals had no jurisJCBISDICTION.

diction, and that this court, under section 12, The office of school director is an office art. 6, of the state Constitution, has excluwithin Const. art. 6, & 12, conferring exclusive sive appellate jurisdiction "in cases involvappellate jurisdiction on the Supreme Court

ing title to an office under this state.” The io cases involving the title to an office under this state.

St. Louis Court of Appeals, under the au2. SAME-PAYMENT OF TAXES.

thority of State ex rel. v. Hill, 152 Mo. 234, Coder Rev. St. 1899, 88 9759, 9760, de- 53 S. W. 1062, rightly concluded that the ofclaring that a school director must be a resident

fice of school director was an office under taxpayer and a qualified voter of the district, and must have paid a state and county tax with

this state, and that it was without jurisdicin one year next preceding his election, it is tion, wherefore it granted a new hearing not required that a director be a resident tax

and transferred the cause here for our deterpayer of the district in which he is elected; but,

mination. if be has paid state and county taxes in anotber county, from which he removed to the We have examined the bill of exceptions, county in which he is elected, within a year pre- the briefs of counsel, and the opinion handceding his election, he is eligible.

ed down, and, being persuaded that the 3. SAVE-BILL OF EXCEPTIONS_REVERSAL. Where defendant's title to the office of

opinion of Goode, J., correctly construed the school director was contested in quo warranto

statutes involved and applied the law to the proceedings on the ground that he had not facts, so that ultimate justice was attained, paid taxes within a year prior to his election,

we adopt it as our own. That opinion is as as required by Rev. St. 1899, $$ 9759, 9760, and there was no contention that he was not

follows: & citizen of the United States or lacked any oth- “This is a quo warranto proceeding Instier qualification, a judgment in favor of defend

tuted at the relation of Robert L. Sutton, ant will not be reversed for failure of the bill of exceptions to show that defendant proved

prosecuting attorney of Lincoln county, be was a citizen of the United States.

against the respondent, to oust the latter

from the office of member of the board of Appeal from Circuit Court, Lincoln Coun

directors of a school district in Lincoln county; E. M. Hughes, Judge.

ty, to which office the evidence shows Fasse Quo warranto by the state, on the infor

was elected on the first Tuesday in April, mation of Robert L. Sutton, as prosecuting

1901. The information charges the respondattorney, against William Fasse, to try de

ent with unlawfully usurping the office, exfendant's title to the office of school director. From a judgment in favor of defendant, re

ercising the powers and performing the du

ties thereof since said date. An answer was lator appeals. Affirmed.

filed alleging the lawful election of Fasse on Robert L. Sutton, in pro. per.. Martin & said date by his receiving 26 out of the 38 Woolfolk, for respondent.

votes cast by the qualified voters of the dis

trict voting at the election, and stating also LAMM, J. Quo warranto, on the informa- his qualifications for the office. tion of the prosecuting attorney of Lincoln “For a person to be eligible to the office of county, ex officio, to try the title of Fasse to director of a school district in this state, he the office of school director of district 1, must be a citizen of the United States, a township 48, range 2, of Lincoln county. resident taxpayer and a qualified voter of Judgment was rendered below for respond- the district, and must bave paid a state and ent, and relator appealed to the St. Louis | county tax within one year next preceding

88 S.W.-1

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his election. It is also prescribed that he ed until he first had paid a school tax theremust take and subscribe to the oath of office in. Provisions are made by the statutes for within four days after his election. Rev. the formation of new districts, and also for St. 1899, 88 9759, 9760. Respondent's title changing the territory of districts. Rev. St. to the office was assailed on the ground that 1899, § 9742. The statutes bearing on the he was not a resident taxpayer in the dis- subject must not be so construed as to have trict in which he was chosen, and in sup- unreasonable consequences, and the CONport of that position appellant points to the struction contended for by appellant, we fact, testified to by Fasse himself, that he think, would have. We are cited to the case paid no tax in the year 1900. His omissiou of State ex rel. v. Rebenack, 135 Mo. 340, 36 to do so was likely due to the circumstance S. W. 893, as holding that no one is eligible that he had moved into Lincoln county the to hold office as a member of a school board preceding year, to wit, 1899, from Warren unless he has paid a school tax in the discounty, where he had been residing since trict; but that decision dealt with a special the year 1894. Prévious to the last-mention- statute referring to the city of St. Louis, ed year he had resided and paid taxes in which provided that no person should be Lincoln county and in the very school dis- eligible as a member of the school board of trict in which he was elected director. said city who had not paid a school tax Fasse was a man in humble circumstances, therein for two consecutive years next prehaving only some household goods, a mule, ceding bis election.' Rev. St. 1889, p. 2172, a cow, and a one-half interest in a "saw out- § 7. That language is different from the fit” and engine. The testimony, however, statute under consideration, and compelled shows that he had continually paid taxes on the Supreme Court to decide as it did. the small property he owned for years in “Appellant further contends that Fasse Lincoln and Warren counties, according to did not show he was a citizen of the United his residence; but in the year 1900 the as- States and that he qualified after the elecsessor of Lincoln county overlooked him, tion by taking the oath of office. The state presumably on account of his recent return took this appeal and made up the bill of exthere. That he had paid a state and county ceptions. We are satisfied the only contesttax in Warren county within one year pre- ed issue below was whether Fasse was a ceding his election was proved by a tax re- taxpayer within the meaning of the statutes, ceipt dated March 22, 1901; the election, as and that no point was made about his lackstated, occurring on the first Tuesday in ing other qualifications. We are also conApril, 1901. This proof, therefore, satisfied vinced that he proved he was a citizen and the statute as to that qualification.

that he was sworn into office in time, which "Appellant insists the requirement that a proof was omitted from the bill of excepschool director must be a resident taxpayer tions simply because there was no contenof the district means that he must have paid tion that he was disqualified by lack of cititaxes for school purposes within the district. zenship or that he failed to take the official That contention cannot be adopted without oath; in fact, as much was stated by the enlarging the language of the statute and counsel for respondent in his brief, and also changing its intention. The meaning is that on argument in this court in the relator's a person who is a qualified voter of the dis- presence, and was not denied by the latter. trict and also a taxpayer is eligible. A qual- When the incumbent of an office is called ified voter is defined in the same section to on by the state to show his title thereto, the be one who, under the general laws of the burden is on him to show it; but this rule of state, would be allowed to vote in any coun- law is based on the assumption that public ty for state and county officers, and who has officers who are intrusted with the power to resided in the district 30 days preceding the institute quo warranto proceedings will use school district meeting at which he offers to their authority under a sense of official revote. Any person who possesses those qual-sponsibility, as doubtless the relator did, and ifications is a qualified voter, as defined in will not attempt to oust the incumbent of section 9759 in regard to the qualifications an office unless there is probable cause.

It of school director. If he is also a taxpayer would be wholly unjust to reverse and re(that is, a person owning property in the mand this case in order that the respondent state subject to taxation and on which he may make proof of his citizenship and that regularly pays taxes), he is eligible to the he duly qualified as school director, in view office of school director, whether he has in of the undenied fact that proof of those fact paid a tax within such school district facts was made, and that they were not conor not; otherwise, when a new district is troverted during the former trial.

The formed, no one would be eligible to the of- judgment is therefore affirmed." fice of school director, or, if territory is taken The judgment of the circuit court of Linfrom one district and attached to another, coln county, being for the right party, is, for no person residing in the newly attached the reasons formulated in the above opinpart would be eligible to the office of school ion, accordingly in all things affirmed. All director in the district to which it is attach- concur.

tract, the plaintiff was obligated to do but MISSOURI PAC. RY. CO. v. KANSAS CITY refused to do. At the close of the whole & I. AIR LINE CO.

case, the defendant asked the court to in(Supreme Court of Missouri, Division No. 1. struct the jury that the plaintiff was not enJune 15, 1905.)

titled to recover. The court refused so to 1. CONTRACTS-QUANTUM MERUIT.

do, and the defendant excepted. At the reIn an action on a contract between railroad quest of the plaintiff the court instructed the companies for the protection of a right of way, jury that the plaintiff was entitled to redefendant company electing to stand on the

cover $8,074.22, the amount admitted to be contract cannot recover on a quantum meruit. 2. SAME-COUNTERCLAIM.

due by the defendant in its answer, with inlo an action on a contract for work and terest thereon from the 15th of July, 1897, materials furnished in protecting the right of to the date of the verdict, at the rate of 6 way of plaintiff on which defendant company,

per cent. per annum, and further instructed under the contract, had constructed its road, defendant company cannot sustain a counter

the jury to find for the plaintiff on the deelaim for work performed by it in protecting a fendant's counterclaim. The jury returned portion of its own right of way not covered by a verdict for the plaintiff for $9,722.20 on the the contract, on the ground that by so protecting plaintiff's cause of action, and also found for its own right of way it conferred an incidental benefit on plaintiff and saved it from probable

the plaintiff on the defendant's counterclaim. expense.

After proper steps, the defendant appealed. 2. EXCESSIVE DAMAGES-REMITTITUB-Costs. The case made is this: Both companies Where the motion for new trial assigned

are domestic railroad corporations. At the as ground that the damages were excessive, and the instruction was to find a specified sum with

date of the contract here involved, the plainspecifed interest from specified dates, the plain- tiff owned a right of way adjacent to the tif cannot avoid the costs of the appeal because Missouri river, in Jackson county, between the specific objection was not made in the trial court, and an opportunity there given to

Independence and Kansas City. The detemit the excess of damages.

fendant was about to construct a railway

between Independence and Kansas City, Appeal from Circuit Court, Jackson Coun

which would cross the plaintiff's right of way ty; John W. Henry, Judge.

at a point about 1,500 feet west of the Big Action by the Missouri Pacific Railway

Blue river. On the 24th of October, 1891, Company against the Kansas City & Inde

the two companies entered into a contract, pendence Air Line Company. From a judg

the preamble of which recited that the dement for plaintiff, defendant appeals. Af

fendant company was desirous of, and was firmed on conditions.

then constructing, a line of railroad connectSamuel W. Moore and Samuel W. Sawyer, ing with the Kansas City Suburban Railroad for appellant. Elijah Robinson, for respond- near a point where said railroad crosses the ent

plaintiff's road in Jackson county, thence to

Independence, and that it was mutually adMARSHALL, J. This is an action upon a vantageous to the parties hereto to avoid the contract entered into between the parties crossing of the tracks of said companies, and bereto on the 24th of October, 1891, and un- that "such mutual purpose and advantage der which the plaintiff seeks to recover $9,- can only be gained by the location of the 160.78 for the work and labor done and ma- railway of the said Air Line Company, north terials furnished in protecting the right of of the tracks of the Missouri Pacific Railway Fag of the plaintiff, on which the defendant Company, from said point of connection with company, under the contract, had constructed the said road, to point east of where the its line also, from the inroads and ravages of Chicago, Santa Fé and California Railroad the Missouri river. The plaintiff, also, in crosses overhead of Missouri Pacific Railthe second count of the petition, seeks to en- road Company's tracks; and whereas, the ter and take possession and oust defendant chief obstacle in so locating said track, is from the portion of the land upon which the the imminent danger of encroachment upon defendant's track is laid, on the ground that it by the Missouri River by the erosions of under the terms of the contract the plaintiff its banks.

That for and in considwas authorized to enter upon and remove the eration of the mutual and reciprocal covedefendant's tracks from the plaintiff's right nants, undertakings, promises and agree of way if the defendant failed to make the ments, made by each of said parties, to, and payments stipulated for in the contract. The with the other, and which are hereinafter answer of the defendant admits the doing of stated, as well as for other good and valuathe work set out in the first count of the pe- ble considerations; the parties hereto have tition of the plaintiff, but alleges that it come to an understanding and entered into amounted to $8,074.22, and not to $9,160.78, an agreement, looking to the location, conas the plaintiff claims. The answer also ad-struction, maintenance and operation of the mits the contract. The answer then con- said second party's railroad on the first partains a counterclaim, under which the de- ty's right of way, between the Kansas City fendant seeks to recover $15,088.06 from the and Suburban Belt Railroad and a point plaintiff, which defendant claims is due to it about four hundred feet east of the Chicago, for work done by the defendant under the Santa Fé and California Railroad, and lookterms of the contract, and which, by the con- ing to the protection of the second party's tracks when there built, against damage by terial a greater freight rate than charged the Missouri River, the terms and conditions for other material carried over its lines for of which understanding and agreement are its own use. as follows."

"Said work of protection shall be divided The first stipulation of the contract con- into two classes; the one class to be called tains a conveyance by the plaintiff to the 'Emergency Work,' the other, 'Permanent defendant of an easement or right of way Work. All emergency work shall be done for defendant's railroad over a portion of whenever necessary or whenever in the opinthe plaintiff's right of way beginning at the ion of the party of the first part, or its point 400 feet east of the right of way of agents, an immediate necessity shall have the Chicago, Santa Fe & California Railroad, arisen for some protection against the then which point is marked "A" on the plat at- immediate and impending danger of injury tached to the contract, and extending west- or damage by the encroachment of the Mis. wardly about 1,077 feet to a point marked souri River. For the expense of doing such “B” on the plat, and also from a point mark- emergency work, bills shall be rendered ed “C” on the plat, and extending west- monthly, to the party of the second part, for wardly to a point marked "D" on the plat for its half of the cost of such work done dura distance of about 2,900 feet. From the ing the previous month and shall be paid points B to C, a distance of about 3,000 feet, within thirty days after the receipt thereof. the plaintiff did not grant an easement to The plans and location of the 'permanent the defendant to place its railroad on plain- work,' such as the constructing of dykes and tiff's right of way, but the defendant ac- other like permanent structures for the purquired a right of way of its own, lying to the pose of diverting the current and force of the north of the plaintiff's right of way, and be Missouri River from impinging against and tween the plaintiff's right of way and the encroaching upon the right of way, shall be Missouri river. The contract does not dis- designed and the costs estimated in advance close why this condition existed, nor is any of the beginning of such work by the engireason given why the defendant did not ac- neers of the two parties to this agreement. quire the right to run its road over and "Party of the second part shall pay upon upon the plaintiff's right of way between said monthly estimates for the work of the preintermediate stations, as well as at other vious months, in like manner for the permapoints along the route; but the fact is that nent work as for the emergency work." between said points B and C, for a distance The contract also contained a stipulation of about 3,000 feet, the defendant acquired for the forfeiture of all rights thereunder its own right of way and constructed its by the defendant in case it failed to promptroad thereon.

ly pay its half of the cost of maintenance The second clause of the contract is as provided for by the contract. follows:

Under this contract the defendant con“Whereas the right of way and roadbed structed its railroad upon the parts of the of the party of the first part, between said defendant's right of way herein described. points, are now in danger of being wholly From time to time between the date of the or in part washed away by the waters of contract in 1891 and the month of June, the Missouri River; and whereas, when the 1896, the plaintiff did the necessary work of party of the second part shall have built | protecting the right of way from the inroads its road on said first party's right of way as of the river, and each month rendered a bill herein provided for, said danger from said to the defendant for one-half of the cost waters will then be common to both parties thereof, which the defendant paid. Between hereto, the party of the first part in consid- June, 1896, and June, 1897, the plaintiff did eration of that fact, and for the considera- other work of like character, and rendered tion aforesaid, has undertaken, promised and bills to the defendant for one-half thereof, agreed, to promptly do, from time to time, aggregating $8,074.20, but the defendant failall work which may be necessary and prop- ed to pay the same, and the plaintiff's suit is er (unavoidable and unforeseen accidents or to recover said sum. causes excepted) to protect the said second The defendant's counterclaim is based upparty's roadbed, when so built, on said strips on the contract, and predicates a right to or right of way, from danger of being in- recover $15,088.06, being one-half of the jured or damaged by the waters of said amount expended by the defendant in doing river, and the said second party [the defend- work for the protection of the portion of its ant herein) shall be under no obligation of right of way and track lying between the law to do any of such work, but the party points B and C. The particulars of the deof the second part, has promised and agreed, fendant's claim are that in 1894 the river beand does hereby promise and agree, to pay gan to make rapid encroachments on the land to the party of the first part, one-half of the lying between the bank of the river and the actual cost of doing such work, and in esti- defendant's right of way, between points B mating the cost of such work, the first party and C, and for five or six days about 15 or shall not claim any profit either on the ma- 20 feet a day of said land was being carterial furnished or on the labor employed, or ried away by the river. The defendant recharge for the transportation of such ma- quested the plaintiff to take steps to protect

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