« PředchozíPokračovat »
State ex inf. v. Morgan.
school age being excluded from the provisions of the Act of 1913 in question, portions of the State can be taxed to maintain consolidated schools while other portions of the State can never be so taxed. Also under the provisions of our State Constitution, section 11, article 10, to create a bonded indebtedness of the district a two-thirds vote is necessary. By the provisions of the Act of 1913, in question, a consolidated district may be created by a majority vote and outstanding bonds of any district taken into the consolidation may be imposed on those who did not reside in the district voting them, by such majority vote for consolidation. Such are the provisions of the Act of 1913 in question. This is in violation of section 1 of the 14th Amendment to the Constitution of the United States in that it denies to all the citizens of the State an equal protection of the laws. State ex rel. v. Railroad, 195 Mo. 228.
Cook, Cummins & Dawson for respondents.
(1) The constitutionality of this statute has been, by this court, very thoroughly discussed, and conclusively decided in a very recent case. State ex rel. v. Gordon, 170 S. W. 892. (2) It is a statute applicable to all parts of the State that fall within its terms, as to population, giving to that population the right to organize under its terms and receive the benefits of the statute, if they so desire; and it is not bad because it limits its operations to districts having less than two hundred children of school age. State ex rel. v. Andre, 216 Mo. 630.
RAILEY C.-On July 7, 1914, George P. Wright, prosecuting attorney of Nodaway County, commenced a proceeding by quo warranto, in the circuit court of said county, against the above named defendants, charging that they were unlawfully and wilfully usurping and exercising the functions and prerogatives of directors of school districts numbered 141, 160, 161, 162
State ex inf. v. Morgan.
and 181, in said county, in the way and manner aforesaid, under the pretense and claim that the above mentioned school districts were embraced in and constitute the alleged Consolidated District No. 162 as aforesaid; and that said respondents have been, and now are, unlawfully and wilfully acting in concert and together, as a board of school directors, in the territory embraced in the school districts aforesaid and are causing taxes to be assessed and levied, teachers to be employed, schools to be run, etc., and are performing all acts and things required and permitted to lawful school directors; all of which is wilfully and unlawfully done, to the injury and detriment of the State of Missouri.
On October 12, 1914, respondents filed their return setting out in detail all the different steps and proceedings to establish Consolidated School District No. 162, and tending to show, that they were elected as directors in said consolidated district, as required by law. The facts stated in the return, if true, show a substantial compliance with the law, in regard to the formation of said district and the election of respondents as directors therein.
Relator filed a reply, putting in issue the facts pleaded by respondents in their return; and attacked the validity of the Act of 1913, Laws 1913, page 721 and following, upon the alleged grounds, that said act violates section 28 of article 4, of our Constitution, in that, it contains more than one subject, which is not clearly expressed in the title; and that the title to said act is misleading and not broad enough to cover the subjects attempted to be embraced therein. He further charges that said act violates section 53 of article 4 of our Constitution, in that, it is local, special, and applies only to a part of the State; that a general law could be made applicable to the whole State; that it is a Local Option Law, and exempts from its operations portions of the State; that the attempted classification
State ex inf. v. Morgan.
violates section 11 of article 10 of our Constitution. He further alleges that said act violates the 14th Amendment to the Constitution of the United States, in that, it denies to the citizens of the State the equal protection of the laws; and that the enforcement of said act would abridge the privileges and immunities of citizens of the United States and of the State of Missouri.
The court, on the 19th of December, 1914, after hearing the evidence and argument of the counsel, found the issues in behalf of respondents and entered judgment in accordance therewith. The cause was duly appealed by relator to this court.
We have simply set out heretofore the substance of the petition, answer, reply and judgment, as constituting the record proper; and have not set out any of the evidence and matters of exception, because the alleged bill of exceptions mentioned in the abstract of record does not contain a motion for a new trial, nor is there any call therein for same. This matter will be considered more fully in the opinion to follow.
L. Appellant has set out as a part of the record proper his motion for a new trial, the ruling of the court thereon, and alleged that an exception was taken to the action of the court in overruling same. Turning,
Motion for New Trizal.
however, to the abstract of record, and inspecting the contents of the alleged bill of exceptions, we find no motion for a new trial set out, nor is there any call made there for said mo
Appellant, in his abstract of record, where matters of exception are relied on, must show by the record proper that his motion for a new trial was filed within the time required by law. He complied with this requirement, as shown by the record. He is likewise required, in his abstract of record, to set out as a part of the bill of exceptions the motion for a new trial, or by appropriate language call for same therein.
State ex inf. v. Morgan.
In the case at bar, the alleged bill of exceptions does not contain any motion for a new trial, nor is there any call therein for said motion. Hence, under the repeated rulings of this court, we can only consider the record proper. [Haggerty v. Ruth, 259 Mo. 1. c. 222-3; City of St. Louis v. Young, 248 Mo. 1. c. 347-8; Realty Co. v. Brewing Co., 247 Mo. 1. c. 31-2; Blanchard v. Dorman, 236 Mo. 1. c. 438-9; City of St. Louis v. Henning, 235 Mo. 1. c. 51; Betzler v. James, 227 Mo. 1. c. 387; Hays v. Foos, 223 Mo. 1. c. 423-4; State ex rel. v. Adkins, 221 Mo. l. c. 120; Groves v. Terry, 219 Mo. 1. c. 597-8; Gilchrist v. Bryant, 213 Mo. 1. c. 443; Reed v. Colp, 213 Mo. 577; Stark v. Zehnder, 204 Mo. 442; Harding v. Bedoll, 202 Mo. 625; State v. Ruck, 194 Mo. 416; State v. Revely, 145 Mo. 660; State v. Handley, 144 Mo. 118; State v. Wray, 124 Mo. 542; State v. Griffin, 98 Mo. 1. c. 674, and cases cited.]
There are numerous other cases decided by this court, as well as the various courts of appeals announcing the same rule of law. This court has endeavored to impress upon counsel throughout the State the necessity of observing this plain requirement. If members of the bar are heedless in failing to observe the law, in respect to these matters, with so many decisions requiring it, they should not expect the court to overlook such errors, when they are patent upon the fact of the record.
II. The petition states a good cause of action, and the answer, as heretofore stated, sets out in detail all of the proceedings, tending to show that Consolidated School District Number 162 was legally established, as required by the Act of 1913, pages 721 and following; and that respondents were legally elected to fill the positions, from which they are now sought to be ousted by relator. The reply put in issue the allegations of the answer, and attacked the
State ex inf. v. Morgan.
validity of the above act upon the grounds heretofore set out in the statement.
On the record thus presented, the trial court, after hearing the evidence and argument of counsel, found the issues in favor of respondents and entered judgment in accordance therewith. As the trial court, on the facts, has found in favor of respondents; and as we are precluded from reviewing same, because no motion for a new trial appears in the bill of exceptions or is called for therein, the judgment below must stand affirmed, unless the Act of 1913, at pages 721 and following, be held as unconstitutional upon one or more of the grounds set out in the reply.
III. The reply challenges the constitutionality of the Act of the General Assembly of Missouri, approved March 14, 1913, and reported in Laws 1913, at pages 721 and following, on the ground, that it is violative of section 28 of article 4 of the Constitution of Missouri, in that it contains more than one subject, which is not clearly expressed in the title, and because the title to said act is misleading and not broad enough to cover the subject attempted to be embraced therein.
We are relieved of the necessity of considering this question on account of the recent ruling of the Court in Banc in the case of State ex rel. Clark v. Gordon, 261 Mo. 631. Judge WOODSON, in speaking for the above court, in his opinion, set out various sections of the act complained of, and in direct terms held that said. act did not violate the provisions of section 28 of article 4 of the Constitution aforesaid. He cites, in his opinion, a large number of authorities sustaining the conclusion reached by him in that respect. In discussing other constitutional questions raised, in respect to said act, Judge WOODSON, on page 649, said:
"This act is progressive and in keeping with the forward movement of the State and country at large