author: FOX, P. J.

text:
    THE STATE ex rel. ROSE et al., Appellants, v. JOB et al.
    Division Two,
    June 11, 1907.
    1. QUO WARRANTO: Amending Pleadings. In a quo warranto brought at the relation of private citizens the rules of practice in other civil eases apply, and it is not error for the trial court to permit respondents to file an amended return and answer.
    2. SCHOOL DISTRICTS: Arbitrators: Witnesses: Oath. The statute does not require arbitrators appointed by the county school commissioner to pass upon an attempted change in the boundaries of school districts, to be sworn, nor witnesses heard by them, and the courts will not write such a requirement into the statute.
    3. -: Change of Boundary: Notice. The notices of a contemplated change in the boundary of a school district should inform the qualified voter that his district is to be affected by the change and what particular territory his district would lose or gain thereby, and if it does that it is sufficient. And a notice, which had as its object to give notice of the consolidation of two districts and part of another, and had attached to it a definite petition for the change, was such a notice, and authorized the voters to vote on the consolidation.
    4. -: State Superintendent: Interpretation of Statutes. A practical construction given a statute by the State Superintendent, in reference to the sufficiency of a petition for a change in the boundary of a school district, upon whom is imposed by statute the duty to send out printed instructions on the sub- . ject, while not conclusive upon the courts, is entitled to great weight.
    5. -: Change in Boundary: Notice: Signers. The statute does not require the petition for a change in the boundary line of two or more school districts,. to be signed by ten qualified voters residing in each district to be affected by the change, nor does it require that there be a separate petition in each district signed by ten qualified voters resident therein, but it does require the clerk of any of the districts affected to give notice of the proposed change on the reception of a petition signed by ten qualified voters resident in any one of the districts affected.
    6. -: -: -: Disposition of Property. It is not necessary that the notices of the consolidation of school districts contain a recital of what disposition is to be made of the school property in the old district, unless the new district intends to surrender to the old district all claim thereon for. its share of the property.
    7. ——: Purpose of Election: Consolidation or Change of Boundary. Where the proceeding to consolidate school districts was inaugurated under the statute and predicated upon it, and the matter went to the county commissioner and his board of arbitrators, to settle the dispute or difference of opinion that had arisen between the districts or parts thereof affected by the proposed change, their decision, when called in question in quo warranto, is final, although the report of the arbitrators may not strictly harmonize with the scheme or questions submitted to the school meetings, and although it cannot be. definitely ascertained whether the proceeding for a change in the boundary line had for its object the consolidation of two or more districts, or whether the question in one of them was to attach or detach a portion thereof. The board of arbitrators having jurisdiction to determine the dispute or differences submitted to them, the court will not, by writ of quo warranto, review errors of judgment in their report.
    S. -: Disputes: Liberal Construction of Statutes. The provisions of the statutes providing for the settlement of disputes arising in the organization of school districts or in changing the boundary lines of existing districts, should receive at the hands of the courts a reasonable and liberal construction. An insistence upon a strict and technical compliance would defeat the purposes of the statutes, and impair the school system itself, since they contemplate that the burdens they impose will rest upon plain and worthy citizens not learned in ■ the law.

      Appeal from Cass Circuit Court. — Now. William L. Jarnott, Judge.
    Affirmed.

      Charles W. Sloan, D. C. Barnett and Given é Glenn for appellants.
    (1) Relators were entitled to judgment of ouster on failure to answer October 3, 1903. A sufficient answer and return was not filed until January 25, 1904. State ex rel. v. Griovanomi, 59 Mo. App. 43; State ex rel. v. Yallins, 140 Mo. 535; R. S. 1899, sec. 4460. (2) Qua warranto is tbe proper proceeding to test tbe right of school directors to- hold office, and thereby test the validity of the district’s formation. R. S. 1899', sec. 4457; State ex rel. v. Rose, 84 Mo. 198; State ex rel. V. .-Stone, 152 Mo. 202; State ex rel. v. McSpadden, 137 Mo. 628; State ex rel. v. McReynolds, 61 Mo. 203; State ex rel. v. Scott, 17 Mo. 521; State ex rel. v. Campbell, 120 Mo. 396; School District v. Smith, 90 Mo. App. 215. (3) Defendants are required to plead and prove directly and positively all the facts necessary to establish the title to the office they claim, and failure to do so entitles complainants to a judgment of ouster. The burden is on defendants. 17 Ency. Plead, and Prac., sec. 3, pp. 435, 468, 469, 472; 19 Am. and Eng. Ency. Law, 682; State ex rel. v. McCann, 88 Mo. 390; State ex rel. v. Lxind, 167 Mo. 243; State ex rel. v. Powles, 136 Mo. 380; State ex rel. v. Meek, 129 Mo. 436; State ex rel. v. Steers, 44 Mo. 226-; State ex rel. v. Coffee, 59 Mo. 67; State ex rel. v. Fleming, 147 Mo. 1. (4) Estoppel is not properly pleaded. Shields v. McClure, 75 Mo. App. 641; State v. Yail, 53 Mo. 97; G-oresha v. Levering Co., 146 Mo. 436; State v. Towers, 153 Mo-. Ill; Oriek v. School District, 125 Mo. 444; Thomberg v. School District, 175 Mo. 12. (5) Neither arbitrators nor witnesses were sworn, (a) The board of arbitration is a judicial body. R. S. 1899, sec. 9742; School District v. Burris, 84 Mo. App. 666; State ex rel. v. Denny, 94 Mo. App. 565; State ex tel. v. Wilson, 99 Mo. App. 677. (b) Officers (legislative, executive and judicial) must be sworn before entering on their duties. Constitution, sec. 6, art. 14; State ex rel. v. Stine, 120 Mo. 432; State ex rel. v. Bees, 135 Mo. 333; State ex rel. v. Rombauer, 101 Mo. 502; State ex rel. v. Hill, 152 Mo1. 235. (c) There is no proof that arbitrators were disinterested men, resident taxpayers of Cass county, Missouri. Sutton v. Cole, 155' Mo. 206; State ex rel. v. Wilson, 99 Mo. App. 680; R. S. 18991, sec. 9742. (d) A decision based on evidence of witnesses not under oath ought not to stand. No rights, privileges or immunities should be abridged without due process of law. 1 Greenleaf on Evidence, sec. 328; Constitution, sec. 30, art. 2; Jones v. Tore, 142 Mo. 38. (6) The proceedings leading up> to the election held April 7, 1903, and the action of the arbitration board did not contain the regularity required by law to give validity to the judgment of said arbitrators. (a) The petition and notice must be explicit and comprehensive in the proposition submitted. Must include the disposition of the school house and other property of the old districts. R. S. 18991, secs. 9742, 9744, 9745; School District v. School District, 94 Mo. 618; State ex rel. v. Hill, 152 Mo. 240'; State ex rel. v. Riley, 85 Mo. 156; State ex rel. v. Smith, 90' Mo. App. 223; School District v. Neal, 74 Mo. App. 557. (b) The notices made no disposition of the' part of district 3-44-33 not included in the boundaries of the pretended consolidated district. State ex rel. v. Hill, 152 Mo. 240; State ex rel. v. Stone, Í52 Mo. 211; State ex rel. v. Smith, 90 Mo. App. 224. (c) It is apparent the whole scheme is. an effort of the little town of Cleveland to improve by building a good school house and pay for it by the “acquisition of territory” by .encroachment upon the country districts. This is prohibited by statute. R. S. 1899, see. 9742; State ex rel.. v. Denny, 94 Mo. App. 564; State ex rel. v. Heege, 37 Mo. App. 340. (d) Report of arbitrators does not harmonize with the scheme of the election and question submitted at election of April 7, 1903. Was the proceeding for change of boundary line, consolidation to establish'city school, or was the question in district 3-44-33, to attach or detach portions of the district, or what? State ex rel. v. Denny, 94 Mo. App. 565; State ex rel. v. Burris, 84 Mo. App. 658; State ex rel. v. Smith, 90 Mo. App. 224; School District v. Neal, 74 Mo. App. 557; Shattuck v. Phillips, 78 Mo. 81; Laws 1901, p. 249. (e)- The arbitrators were appointed the day they acted, without notice to the districts affected, or chance for interested parties to ascertain whether arbitrators were “disinterested men, resident taxpayers,” etc., and no proof that they were qualified. Royce v. Barr, 57 Mo. 290; George v. Middough, 62 Mo. 550. '

      W. D. Summers and A. A. 'Whitsitt for respondents.
    (1) A writ of quo warranto was originally a writ out of chancery, governed by the common law; this has been changed by statute, and there has since 1855 been no difference in the right to amend a return or answer, in a proceeding of this character, in the circuit court, and the right to amend an answer in any kind of civil suit. State ex inf. v. Beechner, 160 Mo. 78; State ex rel. v. Meek, 129 Mo. 431; State ex rel. v. Fleming, 158 Mo. 558; State ex rel. v. Kupferle, 44 Mo. 154; State ex rel. v. McClain, 187 Mo. 409; State ex rel. v. Town of Mansfield, 99 Mo. App. 146; 17 Ency. PI. and Prac., 457; McQuillin, PI. and Pr., 517. (2) The important thing for the voter to know is, how his district is to be affected by the formation of the new district ©r change of boundary line, and what particular territory his district would lose in the creation of the new one, or gain as the case might be. And statutes like this should be construed with reasonable liberality. State ex rel. v. .Gibson, 78 Mo. App. 175; State ex rel. v. Hill, 152 Mo. 240, The finding of the commission or board of arbitration is judicial in character. School District v. Burriss, 84 Mo. App. 666; State ex rel. v. Gibson, 78 Mo. App. 170. To disturb a judgment by quo warranto all the essential infirmities and iniquities must be alleged and proven with the same strictness required in a bill in equity to annul a final judgment of a court of record. State ex rel. v. Fleming, 158 Mo. 558. And such proceeding is valid .though the entire corporate entity of-one or more of the old districts may be destroyed. State ex rel. v. Hill, 152 Mo. 235. (3) There is no statute requiring the board of arbitration to be sworn. State ex rel. v. Gibson, 78 Mo. App. 172. (4) The record shows that by reason of the. laches on the part of relators, they allowed a condition to exist for such time which would make it inequitable to grant such relief, especially as they stood by and saw and knew of the steps to erect a building, levy a tax, etc. Stamper v. Roberts, 90 Mo. 683; State ex rel. v. Town of Mansfield, 99 Mo. App. 146; State ex rel. v. Huff, 105 Mo. App. 354; State ex rel. v. Town of Westport, 116 Mo. 583;. L. & M. Water Go. v. City, 163 Mo. 252; Throop on Pub. Officers,' sec. 782; 17 Ency. PI. and Pr., 448; Howell v. Shannon, 90 N. W. 410; 2 Spelling on Extra. Ord. Remedies, secs. 1797, 1837,1840. (5) The burden is on the relators, and quo warranto cannot be used to correct matters of appeal. State ex rel. v. Beechner, 160 Mo. 78; State ex rel. v. Kupferle, 44 Mo. 154; State ex rel. v. Fleming, 158 Mo. 558. (6) The relators contend that the petition should be signed by ten qualified voters, residing in each district affected. We do not so construe the statute, and we think the construction given hy the State Superintendent of Schools, under the advice of the Attorney-General, for years hack, sent out for guidance to all school districts in the State, and which was received and followed by respondents in this case, is the correct interpretation of the statute; in fact, it uses the wording of the statute. R. S. 1899, sec. 9742. (7) Relators ’ contention that the notices are insufficient is also unsupported hy the record, and they utterly fail to point out such insufficiency. State ex rel. v. Eden, 54 Mo. App. 31.
   FOX, P. J.

This cause is now pending before this court upon appeal from a judgment of the circuit court of Cass county, Missouri, in favor of the respondents. This proceeding is one in which the extraordinary writ of quo warranto is invoked to test the legality of the organization of a school district and to oust certain alleged officials from the exercise of certain duties, functions and privileges under and hy virtue of such illegal organization. To fully appreciate this controversy it is essential that we reproduce the pleadings. Relators on the 7th day of September, 1903, filed in the circuit court of Cass county a petition, which, omitting formal parts, is as follows:

“Relators state that they are and were at the times hereinafter mentioned, resident taxpayers, freeholders and voters of the school district No. 5 in township 45 of range 33, of Cass county, Missouri, and that they prosecute their action for themselves and other resident taxpayers and voters of said school district, and that they together constitute a majority of the voters and taxpayers of said school district.. That relators C. H. Yon Yolkenburg and Andrew Alderson, and defendant Harvey Corey are the duly elected and qualified directors of such school district No. 5. That on the first Tuesday in April, 1903, as the iaw directs, there was had a regular annual school meeting at the proper place and in said district, by the voters thereof, who, after assembling at the school house in said district, organized by electing Frank Ink as chairman and Gr. A. Rose as secretary of said meeting. That at said meeting there was an attempted or pretended submission to the voters there assembled of a proposition to consolidate said district with district No. 3, township 45, range 33, and a portion of district No. 3, township 44, range 33, so as to make one district out of two and a part of the third district; that in the pretended or attempted submission of said question, and in the preliminary steps thereto, parties asking therefor in their attempt to lay out by metes and bounds the proposed line of division and consolidation, wrongfully and incorrectly left out a portion of said district No. 3, township 44, range 33, as then existing, having less than the required area of land containing' therein less than twenty children of school age, and entitled to the benefits of the public schools; that after the pretended submission of said question of consolidation, when it was learned that the proposition had failed to carry, there was an attempt to appeal from the decision of the voters voting at said election upon said proposition, to the Hon. A. A. Wirt, county school commissioner, of Cass county, Missouri. And in furtherance of said attempt, there was sent up for the consideration of said commissioner no such records of the several school districts ’ meetings as would authorize said school commissioner to recognize an appeal.

“Your relators aver that upon the record made by said several school districts in the petition for change and notices therefor, at said annual meetings, the school commissioner has no authority or right, nor was he under any duty or obligation to act upon or consider said appeal or attempted appeal, for the reason that said petition, notice and record, if any produced or made, showed no authority or right in said annual meeting to vote upon a proposition to consolidate said two and part districts, no right to vote for attaching and detaching portions of said district No. 3, township 44, range 33, nor that the law had been complied with in the attempted submission of said question, nor. that the school commissioner had any jurisdiction to try and determine the question, attempted to be presented to him. That notwithstanding the lack of authority or right, and the want of jurisdiction in the same, the school commissioner took up and considered and attempted to pass upon and formulate a judgment in the matter, and consolidated said two-and a part, districts in a manner not petitioned for and along lines which no notice was properly posted and on which the several districts did not vote.

“That the judgment of said commissioner and his pretended board of arbitrators was delivered to the district clerks of all said districts and is as follows:

“ ‘Harrisonville, Mo., April 18, 1903.

“ ‘Board of Arbitrators, composed of A. A. Wirt, county school commissoner of Cass county, and W. S. Bryan, G. M. Summers, A. B. Bohon and M. E. Hal-comb, four disinterested citizens resident taxpayers of Cass county, Missouri, appointed by A. A. Wirt, school commissióner, as provided by the Revised Statutes of Missouri of 1899, after the annual meeting of P. R. Brown, W. G. Edwards, C. C. Young, M. B. Job, J. E. Ellis, C. S. Shaw, H. C. Hall, D. W. McClamon, T. T. Maxwell, W. H. Edelen, R. E. Laffoon, A. C. Jones and H. W. Williams, and others, petitioners, voters and resident taxpayers of school districts mentioned to be affected by the proposition voted upon and appealed from, met at Harrisonville, Missouri, on the 18th day of April, 1903, at one o’clock at the circuit court room in Cass county court house, by agreement of appellants and the objecting citizens and their attorneys. The board of arbitrators was. called to order by A. A. Wirt, county, school commissioner, and the board of arbitrators then took up the matter of appeal from the specified petition and notices posted in said districts, being the vote to consolidate school districts No. 5, township 45, range 33, 'in Cass county, Missouri, known as Mayflower school district, and school district No. 3, township 44, range 33, in Cass county, Missouri, known as G-lenwild school district, and school district No. 3-45-33, Cass county, Missouri, known as Hazel Hill school district, and to form a new district out of said old district, and detached parts of said districts No. 3, township 44, range 33, Cass county, Missouri, and attach same and form a new district with -the boundary line as follows :•

“ ‘Commencing at the northwest comer of the southwest quarter of the southwest quarter of section 17, township 45, range 33, in Cass county, Missouri, running thence south ■ to the southwest corner of lot No. 3, in the northwest quarter of section 6, township No. 44, range 33, thence east to the southeast corner of lot 3, in the northwest quarter of section 4, township 44, of range 33, thence north one-fourth mile to the township line between townships No. 44 and township 45, thence east to the southeast comer of the southwest quarter of section 33, township 45, range 33, thence north one-fourth mile, thence west one-fourth mile, thence north to the northeast comer of the southeast quarter of the southwest quarter of section 15, township 45, range 33, thence west to the place of beginning.

“ ‘The described and detached portion being the north side of the following line running through said old district from east to west:

“ ‘Beginning at the southwest corner of lot 3, in the northwest quarter of section 6, township 44, range 33, thence east to the southeast corner of lot 3, in the northwest quarter of section 4, thence north one-fourth mile, thence east one-fourth mile to the southeast corner of lot 4, in the northeast quarter of section 4, township 44, range 33, and leaving the part on the south side of the last-named line to be attached to district No. 11, township 44, range 33, and known as the West Line school district, on the south side of said detached portion.

‘ ‘ That proposition so voted upon and appealed to the county school commissioner from the vote taken in said district and detached portions of districts and which was by the board of arbitrators taken up for consideration as required by law, was heard and the matter considered on the evidence offered by the appellants and the objectors and the argument of parties in person and by counsel.

“ ‘The board of .arbitrators then considered the matter aforesaid voted on as contained in petition and notices and now put before us then and made the finding as follows: They do find that necessity for the formation of said new district and that said new district be formed hereinabove set forth and the same be consolidated into one new district, so that the lines of said new district or consolidated district will be as first above set forth. And we as a board of arbitration aforesaid, do find and render our findings to the county school commissioner to be by him certified to district clerks of said district affected by this decision.

“ ‘Witness our hands this 18th day of April, 1903.

“ ‘A. A. Wirt.

W. S. Bryan,

A. B. Bohon,

Gr. M. Summers,

M. E. Halcomb.'

“That said judgment was an illegal and unauthorized attempt to consolidate said two and a part districts as shown by the face of the petition, notices, school records and said judgment, the said judgment was null and void, of no force and effect, and did not and could not confer upon the voters or the territory attempted to he so consolidated any rights, power or authority in law or in fact, to organize a school district with boundaries as set forth in said judgment, nor change the districts as constituted and existing at the time of the annual meeting aforesaid. But your relators state the facts to be, that the voters of said pretended new district did unlawfully and without right of law, assemble at the village of Cleveland in said pretended consolidated district on the 26th day of May, 1903, and then and there held a pretended election for the purpose of organizing a district or village consolidated district school as aforesaid, and then and there pretended to elect the defendants herein, as and for school directors for said pretended consolidated school district which they pleased to term and call consolidated district No. 1, of Cass county, Missouri, or by whatever name said new district may go.

“That the defendant and each of them has since said time, and now are unlawfully, wrongfully and without any legal right whatever, usurping, holding and exercising and attending unto the office of school director for said pretended district as aforesaid, and by their acts attempting to set up and maintain a school district over the territory in said district No. 5, township 45, range 33, including the taxable property of relators, without any right, warrant or authority of law so to do.

“Relators further say that the organization of said pretended consolidated District No. 1, of Cass county, Missouri, or by whatever name they pretend to be known and of which defendants assume to be the directors, is without authority of law for the following reasons:

“First. That there is no- such records from the school districts involved presented to the school commissioner as to authorize him to recognize an appeal.

‘‘ Second. That said' county school commissioner has no power to entertain’ said appeal, nor did he appoint the hoard of arbitrators until more than five days after the annual school elections, said annual meeting's were April 7, 1903, said board appointed on April 18, the day the board met, and without notice to the several districts and without chance to object to the board as constituted.

“Third. That said board of arbitrators was without authority to act except to dismiss the appeal; that all the proceeding’s before said board on said appeal were illegal and void.

“Fourth. That said board was a judicial body, none of the members of said board either before or after entering upon the discharge of his official duties as a member thereof was sworn, but that each and all acted therein without being under oath.

“Fifth. That the witnesses before said board were not sworn as the law directs.

‘ ‘Sixth. That by the proposed change of the boundary lines for the formation of said pretended consolidated district, leaves original District No. 3, township 44, range 33, containing within its remaining limits by actual count less than twenty pupils of school age, and this, was well known to said commissioner and said board of arbitrators.

“Seventh. That by the action of said board in changing the boundary lines of said two and part districts, said district No. 5, township 45, range 33, had been destroyed and annihilated and has been left without territory.

“Eighth. That the notice of annual meetings in said districts did not properly give notice of changing boundary lines.

“Ninth. That the notice of the election of chañare of boundary lines should have been as comprehensive as the petition for such change, but the notices in none of said districts were sufficient to submit to the voters the question of change of boundary lines.

“Tenth. That from petition to the clerks and notices posted the voters were unable to tell whether they were to vote on consolidation of districts, change of boundary lines, or to attach and detach portions of districts; in some districts the notice was for one thing, in other districts for another.

“Eleventh. That the pretended appeal in matter of the vote of the detached portion of District No. 3, township 44, range 33, was made by parties having no interest in the question of detaching District No. 11-44-33.

“Your relators therefore pray for leave of the court to file an information in the nature of a quo-warranto against the defendants herein, compelling them to appear before this court and show by what authority they assume to act in the capacity of school directors as herein set forth, and failing to do so, that this court issue a writ of ouster against them and each of them forbidding them, and each of them, from acting as such school directors and for such other and further orders and decrees touching the premises as may be just and proper, and for the costs of your relators in this behalf laid out and expended.

“Given & Glenn and O. W. Sloan,

Attorneys for Relators.

“State of Missouri, County of Cass, ss.

“C. H. VonVolkenburg and G. A. Rose, beng sworn on oath, say that they are relators in the above cause, and that the allegations set out in the above and foregoing petition are true.

“C. H. Yonvolrenbtjbg,

“G. A. Rose.

“Subscribed and sworn to before me this 5th day of June, 1903. C. C. Bundy,

“Clerk.”

In obedience to the request of the foregoing petition leave was granted to file the information which was filed and is as follows:

“Be it remembered that D. C. Barnett, prosecuting attorney for the said county, who, in this behalf prosecutes for the State of Missouri, comes here into the circuit court of Cass county, Missouri, and for the State, at the relation of C. H. VonVolkenburg, Andrew Alderson, Gr. A. Eose, J. S. Craycroft and J. H. Powell, resident taxpayers of School District No. 5, township 45, of range 33, Cass County, Missouri, according to the statutes in such cases made and provided, gives the court to understand that it is provided by the statutes of the State of Missouri, that there shall be chosen and acting in all school districts, other than those of city, town and village' schools, three1 directors, whose duty it is to perform all the duties of said office pointed out by the statutes of this State in the management of the public schools in the district for which they are elected; that said office is a public office of great trust in the administration of our public school system, and in the education of the youth of the State and of said District No. 5; that relators C. H. VonVolkenburg and Andrew Alderson and defendant Harvey Corey are the elected and qualified directors of said District No. 5; that on the 26th day of May, 1903, the said defendants and each of them, did use and exercise, and from said time to the exhibiting of this information, have •used and exercised, and still do use and exercise, without any legal warrant, grant or right whatsoever, the office and authority over a territory including said District No. 5, of school directors, and for and during said time aforesaid have there claimed, and still do claim without any legal warrant, grant or right whatsoever, the office of school directors, of a pretended district, including within its boundaries the whole of said District No. 5 aforesaid, in the county of Cass and State of Missouri, and to have and use and enjoy all the rights, liberties, privileges, and franchises to the office of school directors of said: district belonging and appertaining, which said office, rights, liberties, privileges and franchises they, the said M. B. Job, P. R. Brown, Robert Laffoon, William Edelen, E. D. Noyes and Harvey Corey, for and during all the time last aforesaid, without any legal warrant, grant or right whatsoever, has usurped, and still do usurp at the county of Cass aforesaid, in contempt of and to the great damage and prejudice of the authority of the State of Missouri.

“Whereupon the said prosecuting attorney in this behalf and at this relation prosecutes for the State of Missouri, and prays the consideration of the court here in the premises, and that due process of law may be awarded against the said M. B. Job, P.- R. Brown, Robert Laffoon, William Edelen, E. D. Noyes and Harvey Corey in this behalf to make answer by what authority they claim to have, use and enjoy the rights, liberties and privileges and franchises aforesaid.

“D. C. Baknett,

“Prosecuting Attorney for Cass County, Missouri.

“Given & Glenn and Chas. W. Sloan,

“Attorneys for Relators.”

There were numerous motions filed and orders made preliminary to the trial of the cause, but as they have no bearing upon the merits of this controversy we deem it unnecessary to make further mention of them in this statement. The amended return and answer of the respondents upon which this cause was tried was as follows:

“Now come M. B. Job et ¿L, protesting that the information aforesaid is not sufficient in law and ask to go hence and recover their costs.

“Respondents further answering the information and writ herein and by way of return and answer to same deny each and every allegation in same and having fully answered pray that the court adjudge that they go hence and that the information be dismissed and the writ quashed and that respondents recover their costs.

“Respondents further answering deny that the relators are duly elected, qualified and acting directors of District No. 5, Township 45, Range 33, as alleged in the information; deny that the respondents are usurping the office of the directors of district number five, deny that there is a district number five, as alleged in the information.

“Respondents aver that they are duly elected and qualified and acting school directors of the school district of Cleveland, Cass counfy, Missouri, and have been acting as such directors since the — — day of April, that on the 7th day of April or May, 1903, the school district 'of Cleveland, Mo., and all the legally qualified voters of said district assembled at the voting place in said district pursuant to notices previously given according to law, that on said date the said legally qualified voters at said election voted for school directors of said school district and that all of the votes cast at said election were cast for the respondents for school directors for the ensuing term and that they were declared elected and duly qualified and are acting as such and have been so acting since said date and are legally elected, qualified and acting school directors of said school district and no other, and' are not usurping the office or rights of the relators or any one.

“The respondents further answering say that the relators are not entitled to maintain this suit for the following reasons, to-wit: That if there is any irregularities or insufficiencies in any of the proceedings, notices or otherwise in the formation of said district mentioned in the relators’ petition, of which the respondents are officers, that all of the relators and legally qualified voters in all of the school districts affected, as set out in the petition met at the regular annual school meeting at the usual time and meeting place in their several districts; that prior to said meeting and voting, a petition was presented to the clerk and hoard of directors of each of the four old districts, which petition was signed by the required number of legal signers for each of the said districts, desiring the formation of new districts and change of boundary of the old districts, in said petition set forth; that the clerk of each district to be affected by the proposed change posted a notice of such desired change in at least five public places in each district interested fifteen days prior to the time of the annual meeting aforesaid, as required by law, and at said meeting after electing the necessary officers for the purpose of voting on the different propositions involved in said question of formation of a new district or districts and changing the boundaries of the old and adding them onto the new, and at said election said' proposition was duly put and voted upon according to law, these relators voting thereat, and taking part therein, and that all of the legally qualified voters of the several districts so met and took part and voted upon the proposition, all of which are embraced in the relators’ petition, in which they now seek to have annulled, wherefore the respondents say the relators are estopped and precluded from denying the validity of their own acts, or the sufficiency of the notices calling them to vote upon the proposition at said date.

“The respondents further aver that after voting upon the proposition of the boundary of the several school districts on the 7th day of April, 1903, that part of the school districts voted in .favor of the change, and a part of them against the change and that there ■was an appeal duly taken to the county school commissioner as provided by law for the purpose of having same ascertained, and that a commission was duly appointed and qualified and that the said commission so appointed after giving all due and lawful notices did meet at Harrisonville, in Cass county, Missouri, on the — day of April, 1903, and proceeded to hear the evidence and to investigate the proceedings in respect to the proposed change and alteration of the lines of the districts and the formation of a new district, now known as the Cleveland district, and after a full investigation and hearing the said commission decided unanimously in favor of the adopting of the new district as voted upon and the same was duly ordered upon said date, wherefore the said Cleveland district of which these respondents are the officers was duly established according to law.

“That all of the relators herein and all of the taxpayers and .voters of said school district were present, and relators were present in person and by counsel, and participated in the proceedings changing the boun-daries of the said old districts of which Cleveland district is one.

“"Wherefore, they are estopped from now denying the validity and legal existence of said new districts and of said Cleveland district, or the right of respondents to act as its officers, or the validity or regularity of the said changing of the boundaries of said districts.

“The respondents further aver that immediately upon the formation of the said new district of which the respondents are the officers, which the commissioners established the same on the-day of April, 1903, the relator and D. C. Barnett, the prosecuting attorney, knew that said new district of which these respondents are the officers were negotiating for and endeavoring to secure a loan of five thous- and dollars, for the purpose of building a school house, in said district, of which these respondents are the officers formed as aforesaid and that immediately upon the formation of the said district on April, or about April, 1903, the relators applied to D. O. Barnett, prosecuting attorney aforesaid and to the court, to-wit, W. L. Jarrott, the judge of the circuit court of the county of Cass, for permission to bring quo warranto proceedings to investigate the right by which the said district was formed or the officers were elected, and that the said D. C. Barnett, prosecuting attorney, aforesaid, signed the information filed in this cause for the relators, that they proceeded at the said time, and also the judge of this court signed the said information giving his permission in that way for proceedings to be instituted; that the court was in session at said time, being May term, that the said relators withheld the said information and withheld the proceedings in this case well knowing that negotiations were going on for said loan, and that said loan was being negotiated, and that the said loan was finally secured for the said district in the sum of five thousand dollars, in that the said money was loaned that is the bonds were duly issued and sold to Cash Blackburn and he now holds the five thousand dollars of bonds for which the said money has been paid to said district, wherefore he has become an interested party, and necessary party to the determination of this cause; also that said relators never had the said proceedings instituted until after the said bonds had been issued and negotiated and sold, withholding the same with a full knowledge of all the facts, and that said bonds were being issued and placed upon the market for sale, and that after the said bonds had been so issued and placed upon the market for sale and sold and the district received the money from the said Cash Blackburn, then the relators filed the information in this cause om the--day of September, 1903; that by reason of the facts aforesaid, the relators are guilty of such laches as to not entitle them to be heard in this proceeding.

“Respondents for another and further defense herein state that by reason of the laches of the relators and of the delay ini filing the said information that a levy of school tax has been duly made against the property-owners and the property in said school district and that the same was duly made since the relators have gotten permission of the said prosecuting attorney, to file the information in this cause, and that the said tax has been by the clerk of the county court duly extended on the tax books of said county and that the same is now in the hands of tax collector for collection, and that by reason of said delay and laches of the rela-' tors the rights of the district aforesaid and of all the districts affected by reason of this action have been prejudiced and that the relators are not now entitled to' be heard.

“The respondents further say that on or about the — — day of August, 1903, the directors of said school district of which respondents are officers entered into written contract for the hiring of teachers and did hire teachers for the school district for the ensuing year, and that the relators well knew this fact at the time, wherefore relators are guilty of such laches for failing to proceed within a reasonable time, for the investigation if any need be made, in the matters in issue, whereby and by reason of all such laches and the rights of innocent parties will suffer, if the relators be permitted to proceed at this time in this cause.

“The respondents further say that since the permission was given as aforesaid, and prior to the filing of the information by relators, the state school tax has been paid by the state officers to the duly elected and qualified treasurer of said Cleveland district, wherefore relators are guilty of laches.

“Wherefore, the respondents having fully answered ask that this cause be dismissed, and that, they recover their costs.

“A. A. Whitsitt,

W. D. Summers,

“Attorneys for Respondents.”

The replication of the relators to the foregoing amended return and answer was a general denial of each and every allegation contained in the return and answer. Upon the issue thus presented the trial of the cause before the court proceeded. The testimony as disclosed by the record before us is quite voluminous. We have carefully considered it in detail. We shall not undertake to burden this opinion with a reproduction of the testimony introduced, but it will suffice during the course of the opinion to make such reference as to the tendency of the proof as we may deem necessary. At the close of the evidence the cause being submitted the court rendered the following judgment:

“Now come the parties herein by their respective attorneys and the court having heard the evidence and the argument of counsel for both relators and respondents, and having taken the same under advisement and after having fully considered the same, now in open court renders its findings and judgment herein. It is the finding and judgment of the court that the finding and judgment ip this case be in favor of the respondents and against the relators, and that the bill and complaint of relators be and the same is hereby dismissed and that the respondents go hence without delay and recover their costs herein laid out and expended and that costs be taxed against the relators. It is therefore considered and adjudged by the court that relators take nothing by their said cause and that respondents go hence without day and' have and recover from and against said relators their costs and charges herein laid out and expended and that execution issue therefor.”

Timely motions for new trial and in arrest of judgment were filed and by the court overruled. The relators in due time and proper form prosecuted their appeal to this court and the record is now before us for consideration.

OPINION.

The record in this cause discloses that the respondents in this proceeding claim to be the duly elected school directors of the new district organized under and in pursuance of section 9742, Eevised Statutes 1899. This section provides:

“When it is deemed necessary to form a new district, to be composed' of two or more entire districts, or parts of two or more districts, or to divide one district to form two new districts from the territory therein, or to change the boundary lines of two or more districts, it shall be the duty of the district clerk, of each district affected upon the reception of a petition desiring such change, and signed by ten qualified voters residing in any district affected thereby, to post a notice of such desired change in at least five public places in each district interested fifteen days prior to' the time of the annual meeting; and the voters when assembled shall decide such question by a majority vote of those who vote upon such proposition. If the assent to such change be given by all the annual meetings of the various districts thus voting, or of the part of the district to be divided, each part voting separately, the district or districts shall he deemed formed or the boundary lines thus changed from that date; hut if all the districts, or parts of districts affected do not vote in favor of such change, the matter may be referred to the county commissioner; and upon such appeal being filed with him, in writing, within five days after the annual meeting, he shall appoint four disinterested men, resident taxpayers of the county, who, together with himself, shall constitute a board of arbitration, whose duty it shall be to consider the necessity for such proposed change- and render a decision thereon, which decision shall be final. When there is an equal division the county commissioner shall give the casting vote. The commissioner shall at the time of the appointment of these members of this board of arbitration notify them to meet him at some convenient place in the county within fifteen days after annual school meeting where the deliberations of the board shall take place and its decision he rendered. But in making such change, the decision in all cases shall conform to the propositions contained in the notices and voted upon at the annual meeting; and the county commissioner shall, on or before the last day of April, transmit the decision to the clerks of the various districts interested, or to the clerk of the district divided, and said clerk or clerks shall enter the same upon the records of his or their respective district or districts; and the said board of arbitration shall be allowed a fee of fifteen dollars, to be paid by the district or districts taking the appeal at the time said appeal is made: Provided, however, that mo new district shall be created or boundary line changed by which any district shall be formed containing within its limits by actual count less than twenty pupils of school age, or by which any district shall he left containing within its limits by actual count less than twenty pupils of school age: Provided, however, the resident voters upon any island in any of the navigable, rivers of this State may organize into a school district without being subject to the restrictions in the preceding portion of this section. It is further provided, that in changing the boundary line between the two established districts, one district shall not encroach upon the other simply for the acquisition of territory.”

The relators by this proceeding invoke the aid of the extraordinary writ of quo warranto, and they with commendable frankness announce that the purpose of this proceeding is “to have the proceedings leading up to and which brought about the claimed consolidation of said original districts declared void and to thereby restore the original status of the old districts.” This cause was submitted to the court upon the issues as presented by the pleadings herein indicated. The learned judge presiding at the trial of this cause was, at the time of the hearing, a resident of the county in which this school district controversy arose. The testimony was heard before the court and a finding and judgment for the respondents, and from that judgment the relators prosecute this appeal. Numerous errors are assigned as grounds for the reversal of the judgment of the trial court. We will give them such attention as their importance requires and merits.

I.

It is insisted by learned counsel for appellants that the relators were entitled to judgment of ouster by reason of the failure of respondents to answer on October 3, 1903, and it is urged that no sufficient answer or return was made to this proceeding until January 25,1904. In support of this insistence our attention is directed to State ex inf. v. Vallins, 140 Mo. 523. In response to this contention it is sufficient to say that a complete answer to the contention is found in State ex inf. v. Beechner, 160 Mo. 1. c. 86. That case clearly marks the distinction between informations in the na,ture of gw warranto at the relation of a private person by leave and proceedings by quo warranto instituted by the Attorney-General by virtue of his office. It was there expressly ruled that since 1855 there has been no difference in the rules applicable to filing of amended returns and answers in proceedings of this character in the circuit court and the right to amend an answer in any kind of a civil suit. In pointing out the distinction it was there said: “The plaintiffs rely upon State ex informatione Crow, Attorney-General, v. Vallins, 140 Mo. 523, and argue that it was there held that no amendment in a quo warranto proceeding was allowable. But the case at bar is very different from the Yallins case. This is a proceeding in the nature of a quo warranto at the relation of a private citizen, begun! in the circuit court, whereas the Yallins case was a proceeding by quo warranto instituted by the Attorney-General, ex officio, in this court. This case could only be filed by leave of court, is controlled by the quo u>arranto statute, and the statute relating to amendments in civil cases in a circuit court. The Vallins case was filed by the Attorney-General ex \officio in this court, without leave, as he had a right to do, was a proceeding by quo warrcmto, which this court had a right under the Constitution to issue, was controlled by the common law practice in ex officio cases of quo warranto, was not affected by the statute in relation to amendments, for as was shown in the Stewart case [State ex rel. v. Stewart, 32 Mo. 379] that statute applies only to the circuit courts and .not to this court, and therefore no amendment was permissible in that case.”

The tendency of the rulings of the appellate courts in this as well as in all the other jurisdictions is to give the rules of practice a liberal interpretation to the end that cases may be tried upon their merits. The trial court in the case at bar saw proper to permit the respondents to file an amended answer and return in this proceeding before the commencement of the trial and in our opinion there was no impropriety in the action of the court in this respect. In fact, from the importance of this proceeding, as disclosed by the record, we are of the opinion that the action of the court in permitting the filing of this return and answer was eminently proper.

n.

It is next insisted by relators that the arbitrators selected by the county commissioner were not sworn and that the witnesses testifying before the arbitrators were not sworn and therefore the finding in that proceeding was void. This same question was in judgment before this court in State ex inf. v. McClain, 187 Mo. 409. It was there expressly ruled by this court “that the statute does not require them to be sworn, and only requires that they shall be disinterested taxpayers of the county. This was evidently considered by the lawmakers a sufficient assurance that they would faithfully discharge their duties. The statute in reference to arbitrations (chap. 71, sec. 4824) requires arbitrators to be sworn. But that is a code unto itself, and so is chapter 154, section 9742, relating to the formation of school districts, a code unto itself, and as there is no legislative intention apparent that the two shall be construed together, and as they are not in pari materia, the courts can not so construe them, nor can they write into the statute any additional qualifications for a board of arbitration in such school district matters.”

in.

It is earnestly contended by the appellants that the proceedings leading up to the election held April 7, 1903, by the districts that had the right to vote upon the proposition as to the formation of the new district; and the action of the arbitrators, did not evidence the regularity required by law to give validity to the judgment of snob arbitrators, and it is particularly insisted that the notices were insufficient and that it was essential that the petition and notices should be explicit and comprehensive in the propositions submitted and that it was imperative that the disposition of the school house and other property of the old district should be included in the propositions to be voted upon.

We have carefully analyzed the petition and the notices disclosed by the record, and we are unable to give our assent to this contention of the appellants. The record in this cause discloses that the petitions submitted to the clerks were attached to the notices required to be given by the clerk of the annual meeting and in our opinion these notices thus given and posted by the clerks gave sufficient information to the voters of the school districts as to the propositions upon which they were called upon to vote. As was said in Mason v. Kennedy, 89 Mo. 1. c. 30, “The important thing for the voter in each district to know, was how his district was to be affected by the creation of the new district [or by change of boundary] and what particular territory his district would lose in the creation of the new one [or by changing said boundary line]. Of all this the notices and petitions fully informed the voter, and this was sufficient.”

IV.

It is next contended that the proceedings to organize the new school district were without force and effect, and therefore void, for the reason that the petitions were not signed by ten qualified voters residing in each district affected. Under the provisions of section 9856, Revised Statutes 1899, it is made a part of the duty imposed upon the State Superintendent of Public Schools to distribute copies of the law relating to schools, accompanied with instructions for the carrying into execution of such laws, all of which is required to he printed in a separate volume. In obedience to' the requirements of that section, the State Superintendent sent out for the guidance of all the school districts in this State his interpretation of the particular provisions of section 9741, which is now in judgment before us, and doubtless numerous school districts of this State, whenever necessity required, have been guided by such interpretation. The instructions to the school districts upon the proposition now before us, were as follows: “When it is desired to form a new district or to change the boundary lines of two or more districts, the first step is the preparation of a petition clearly setting forth the change desired, which petition must be signed by at least ten qualified voters, ‘residing in any district affected thereby. ’ It is not necessary that the voters all reside in the same district-part may reside in each district, but every signer must reside in some one of the districts affected by the proposed change. As many petitions should be prepared (all alike) as there are districts affected, and one petition be presented to the clerk of each district affected. The law makes it the duty of the clerk, without any action of the board of directors, upon receipt of the petition to post a notice in at least five public places in the district of which he is clerk, fifteen days prior to the time of the annual meeting. A failure to do this subjects the clerk to a fine of not exceeding one hundred dollars.”

Now, while it is true that the interpretation as given by the State Superintendent to this section would not be conclusive upon the courts who are called upon to interpret it in accordance with the well-settled rules of construction, yet we do say that the practical construction given this law by the officers whose special duties imposed upon them the proper administration of the school laws of the State, is entitled to great weight when the law which they have had occasion to construe is called in question before the courts. We have earefully considered this section and our conclusion is in harmony with the interpretation of the State. Superintendent as herein indicated.

It will be observed from the language employed in the section that it is not essential that the petition should be signed by ten qualified voters residing in each district affected. The section provides that ‘ ‘when it is deemed necessary to form a new district, to be composed of two or more entire districts, or parts of two or more districts, etc., it shall be the duty of the district clerk of each district affected, upon the reception of a petition desiring such change, and signed by ten qualified voters,” not residing in each district affected, but “residing in any district affected thereby.” It will be noted that when the lawmaking power was designating the person who should receive the petition, it designated the district clerk of each district affected, but when treating of the sufficiency of the petition which was received by such clerk it did not limit the qualification of the voters to sign the petition to residents of each particular district, but simply required, upon the reception of a petition signed by ten qualified voters residing ini any district affected thereby, to give notice.

We are unwilling to disturb the practical construction given this statute by those whose duties impose upon them the proper administration of the school laws of this State.

Y.

It is contended by appellants that in the proceeding to organize the new district there was no disposition of the school property belonging to the old district, which is provided for by section 9744, Revised Statutes 1899, and it is also insisted that the notices and petitions made no reference to or disposition of the part of district 3-44-33 not included in the boundaries of the new district organized.

An examination of section 9744, supra, will demonstrate that it is only essential to embrace the disposition of the property in the old district when it is made known that the new districts intend to surrender to the old district all claim thereon' for their share of said property. In this proceeding there was no surrender to the old district of any claim that the new district might have upon the property of the old district, therefore it was not necessary to embrace that in the notices. As to the other proposition, it is clear that the notices and petition did undertake to dispose of the portion of district 3-44-33 which was to be detached and not taken into the new district, and the report and finding of the arbitrators clearly shows that the notice and petition did embrace such detached portion of the district and their finding was that it be attached to district 11, West Line district. A casual reading of the report of the arbitrators and their finding and conclusions upon the matters submitted to them will demonstrate the correctness of this conclusion.

VT.

It is next insisted that the report of the arbitrators, does not harmonize with the scheme of the election and question submitted at the election of April 7, 1903. Also this inquiry is made by learned counsel for appellants: “Was the proceeding for change of boundary line, consolidation to establish city school, or was the question in district 3-44-33, to attach or detach portions of the district, or what?”

It is sufficient upon this proposition to say that the report of the arbitrators speaks for itself, and it is made manifest from that report that this entire proceeding was predicated and inaugurated in pursuance of section 9742, supra. The lawmaking power manifestly had in view by the enactment of section 9742 the prompt settlement of all controversies that might arise in the administration of the school laws of the State; therefore by the provisions of this section, when a dispute or difference of opinion arises between the different districts or parts thereof affected by changes sought to be made, under the provisions of the section, these disputes are referred to the county commissioner, who, in pursuance of the statute, appoints four disinterested men, resident taxpayers of the county, who, together with himself, constitute a board of arbitrators, and their decision upon the questions in dispute is a finality. It is clear that under the provisions of this section this court, by the writ of quo warranto, would not be authorized to review the error of judgment by such board of arbitrators. If the record discloses that the board of arbitrators acquired jurisdiction to determine the questions of difference submitted to them and they have rendered a judgment upon such questions, in the absence of a showing that the judgment itself was procured by fraud, then the decision of the board of arbitrators upon the questions of differences submitted to them becomes conclusive. As was said in State ex inf. v. Fleming, 158 Mo. 1. c. 563, where this court had in judgment the extension: of the boundaries of a municipal corporation, that “the action of the county court in that matter was judicial, and its error, if error it made in judgment, cannot be brought to this court for review by the writ of quo warranto. Quo warranto is, in no sense, a writ of correction or review. To assail an order of the county court in the matter of incorporating a city or town; or to disturb the result of its judgment, through the office of the writ of quo ivarranto, all the essential infirmities thereof, and iniquities therein, resulting from the manner of its procurement, or the fraud of the court, must be alleged and proven with the same strictness that would be required in a bill of equity having for its object the annulment of the final judgment of any court of record of the State, brought about by fraud or collusion.”

The rule as applicable to this subject was very clearly and correctly announced in State ex rel. v. Gibson, 78 Mo. App. 170, and that was a case .involving the powers of the school commissioner under a statute substantially the same as the present one, and the court in that case thus announced the law: “As to whether or not the school commissioner had ‘sufficient evidence before him’ to justify his action in changing' the boundary line between districts numbered 2 and 6 we have nothing to do in this proceeding. The statute contemplates a mere informal investigation by the commissioner as to the propriety of the changes. Having acquired jurisdiction of the matter, he is directed to ‘proceed to inform himself as to the necessity of. such proposed change, and his decision shall be final.’ The record here shows that a dispute, or difference of opinion, had arisen between the different districts, or parts thereof affected by the proposed changes; that these matters were referred to the respondent as county commissioner; that he proceeded to and did investigate and decide; and his decision therefore must be treated as a finality.”

That the record in the case at bar discloses that the' board of arbitrators had jurisdiction to determine the dispute submitted to them, in our opinion, is too clear for discussion. . It is plain from the exhibits of the petition and notices submitted to the clerks of the various school districts affected by this proceeding that the voters of the districts had ample information to indicate to them the propositions to be voted upon and to intelligently cast their votes upon such proposition. The record clearly discloses that an election was held in the districts. It further appears that all districts affected by the change sought in the proceeding did not vote in favor of such change and that by reason- of the election held in: the districts there was a difference or dispute to be settled, and that such matters were referred to the county commissioner, and that he took the appropriate steps, as is indicated by the record, to determine the matter in accordance with the provisions of the statute. "While the statute controlling and regulating the public school system of this State and providing for the organization of school districts and the forming of new districts, and the change of boundary lines in other districts, should be substantially complied with in order to affect the purpose sought under the law, yet the proper and prompt administration of such law is of such paramount importance to the pul> lie, that the provisions of the statute providing for the settlement of disputes arising in the organization of school districts or the forming of new districts should receive at the hands of the court a reasonable and liberal construction.

It is but common knowledge that matters pertaining to the interests of the public schools in nearly all the districts of this State rest with plain, honest, worthy citizens not specially learned in the law, and if we are to look at all times for a strict and technical ■compliance with the statute, then we confess that numerous districts in this Commonwealth would fail of their purpose, for the reason their organization did not meet such strict and technical requirements. Under our public school system and the law regulating it new school districts are constantly being formed and old ones divided and changed; therefore, what was said by this court in State ex rel. v. Town of Westport, 116 Mo. 1. c. 595 (in which case it was sought to annul the incorporation of a municipality) may be very appropriately applied to the case at bar. It was there said: “Towns and cities now spring np like magic as it were, and in a short time assume all the privileges and franchises pertaining to and incident to such municipalities, at the same time assuming the burdens of taxation for their improvement and advancement. Before the court should grant the writ in this case, it should scrutinize very closely all the proceedings, and be fully satisfied that an apparently clear case is made out against the organization of the city, and the extension of its limits, as the result of the action it may take in the case, if against the city, or the extension of its limits, must prejudicially affect the rights and interests of the State as well as creditors of the city.”

We have in this case the finding and judgment of the board of arbitrators settling this school controversy, which under the provisions of the statute, and in the absence of fraud in the finding and judgment itself, became conclusive, and in the meantime the new school district was organized in pursuance of such judgment and finding of such arbitrators, a board of directors were elected, made levy for taxes and provided for school; had plans drawn for central graded school building; held election for the issue of bonds and the same was carried and five thousand dollars in bonds issued and registered; teachers employed and arrangements for temporary quarters for holding school while the new building was being built, were made and the school began. This proceeding, which seeks the nullification of all that was done by this new district, was instituted in the county where the district was formed; was. tried by an esteemed and learned judge who resided in the same county where this school controversy originated; he heard all of the testimony and his finding and judgment are in harmony with the conclusions reached by the board of arbitrators. The relators have fully had their day in court; they were present in- person and by attorney before tbe board of arbitrators; no objections or protests as to the qualifications or character of the board selected; no extension of time requested- before proceeding with the questions'before the board; they were present, as the record discloses, in the trial in the case at bar and were fully heard. Under this state of facts we are unwilling to disturb the judgment of the trial court.

Entertaining the views as heretofore indicated upon the propositions disclosed by the record, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    THE STATE v. ANTON WEBER, Appellant.
    Division Two,
    June 11, 1907.
    1. STATUTE: Title: Game Animals: Deer. The term “game animals,” used in the title to the statute, includes all kinds of deer within this State, whether wild or reduced to captivity and ■ domesticated; and, therefore, a section of the statute, forbidding any person “to have in his possession or to transport at any time the carcass of a deer, or any portion of such carcass, . unless the same has thereon the natural evidence of its sex,” is not broader than its title, even though it be held to include .tame and domesticated deer.
    2. DEER: Title: Right to Regulate. No owner of deer raised in captivity has a better title thereto than has the hunter at common law to the deer captured or killed by him; and the State has authority, by statute, to regulate the sale of such game, or to prohibit it altogether.
    3. —:-: Preservation: Evidence of Sex. The end or object of the law being the preservation and protection of game animals, the provision inhibiting the possession by anyone of the carcass of a deer which has not thereon the natural evidences of its sex, is a means to that end.
    4. -: Ferae Naturae. Deer come within the meaning of the term “game,” which means animals feme naturae, or wild by nature; and it maltes no difference whether the deer in question were raised in captivity and had become tame and even domesticated, for deer are naturally wild.
    5. -: Ownership and Sale. A person who raises deer and holds them in captivity has the same right to sell and deliver them that he has to sell and deliver any other property he owns and possesses; but deer is game, and the Legislature has the power, for the preservation and protection of game, to make it unlawfu.1 for any person who has bought such domesticated deer to have in his possession the carcass thereof which has not thereon the natural evidences of its sex. Such a restriction is clearly within the police powers of the State.
    6. -: -: Police Regulation. Rights in private property must, to a reasonable extent, yield to the public welfare. The protection of game is a public advantage, to which private interests may be made to yield to some extent. The Legislature may enact a reasonable regulation to prevent an easy evasion of the law and a defeat of its purpose to- protect and preserve game, and in doing that it may make it unlawful for any person to have in his possession the' carcass of a deer, which does not have on it the natural evidences of its sex, whether the deer was a wild or a domesticated one, and the Game and Fish law of 1905 does that and is valid in that respect.
    Transferred from Kansas City Court of Appeals.
    Affirmed.

      Chas. B. Adams and Wash Adams for appellant.
    (1) The deer in controversy were not game animals in the ordinary and accepted meaning of the term, and were not embraced in,, or germane to, the subject of the game law, as expressed in its title, and were not, therefore, within the provisions of said law. Laws 1905, p. 158; sec. 28, art. 4, Con. of Mo. (2) The word “deer” as used in the body of the act should be harmonized with the term “game animals,” as used in the title, and to this end it must be confined to -game or wild deer, and cannot be construed to comprehend deer in captivity, which have been reclaimed from their wild state and lawfully reduced to private ownership, without making the act broader than its title, and rendering it pro tcmto unconstitutional. State ex rel. v. Saline County, 51 Mo. 350; State v. Baker, 129' Mo. 482; State v. Coffee Co., 171 Mo. 634. (3) At the time the game law became effective said deer were completely reclaimed and were held and possessed with all the usual indicia of private ownership, attending the ownership of domestic animals, and were not and could not be lawfully classed as game animals. State v. Crosby, 121 Ga. 198; Bouvier’s Law Dictionary, Title, Game; 14 Am. and Eng. Ency. Law (2 Ed.), 654, 657; Anderson’s Law Dictionary, Title, Game Laws; Ullery v. Jones, 81 HI. 403; State v. Crenshaw, 22 Mo. 457; Heywood v. State, 41 Ark. 479; Manning v. Mitcherson, 69 Ga. 447 ; 2 Cyc., 307.

      Isaac B. Kimbrell and Bruce Barnett for the State.
    (1) It matters not whether the deer in question come within the meaning of the term “game” or “game animals,” or not. The inhibition of the statute applies to “deer,” with no qualification as to whether they are wild or tame, or as to whether or not they are' game animals. Sec. 13, Laws 1905, p. 158. (2) There is no merit in appellant’s contention that the word “deer” as used in the act should be construed to mean wild deer and not to include deer in captivity, for the purpose of harmonizing it with the term “game animals” as used in the title. (3) Deer held in captivity and tamed come easily within the meaning of the term “game” or “game animals.” The term “game” is not confined to wild animals but applies to all animals which are “ferae naturae” or wild by nature. Bouvier’s Law Dictionary, Title, Game; Anderson’s Law Dictionary, Title, Game Laws; 14 Am. and Eng. Ency. Law (2 Ed.), 654, 657. Deer are particularly recognized by the courts as being animals “ferae naturae” or wild by nature. Re Long Point Co. v. Anderson, 19 Ont. 487. (4) The section of the act under which appellant was convicted refers to “deer” without qualification or exception; it applies to all deer, whether wild or in captivity. Com. v. Gilbert, 160 Mass. 157; Com. v. Look, 108 Mass. 452; State v. Heger, 194 Mo. 707; Haggerty v. Ice Mfg. & Storage Co., 143 Mo. 246; State v. Randolph, 1 Mo. App. 15; State v. Judy, 7 Mo. App. 524; State v. Farrell, 23 Mo. App. 176; Greer v. Connecticut, 161 U. S. 519; People ex rel. v. Hester-berg, 184 N. Y. 126; In re Deininger, 108 Fed. 623.
   BURGESS, J.

At the January term, 1906, of the Jackson County Criminal Court, under an information filed by the prosecuting attorney of said county, the third count of which charged the defendant with having in his possession the carcasses of three deer which did not have thereon the natural evidences of their sex, in violation of section 13 of the act known as the Game Law, approved March 10, 1905 (Laws 1905, p. 158), the defendant was found guilty as charged in said third count, and his punishment assessed at a fine of twenty-five dollars. The cause was tried by the court, trial by jury having been waived. From the judgment of the court defendant appealed to the Kansas City Court of Appeals, by which the cause has been transferred to this court for its determination, sections 15, 20, 21, and 30 of article 2 of the Constitution being involved.

’The evidence on the part of the State showed that the defendant had in his possession and was offering for sale at his meat market in: Kansas City, on December 14, 1905, the carcasses of eight deer, from which the natural evidences of their sex had been removed,

Defendant introduced evidence showing that the which facts were not denied by the defendant, deer in question had been fawned and raised in captivity upon a stock farm in Henry county, Missouri, owned by Mrs. George M. Casey, and were killed there and their carcasses sold and shipped to the defendant at Kansas City. The deer had belonged to a herd raised upon the Casey farm, and were descended from a pair of tame deer raised as pets some twenty-five years before on the lawn of the Casey home. They were kept in a pasture enclosed by a high fence, were permitted to run with the cattle, were raised under similar conditions and were fed and cared for like cattle. The enclosure in which they were kept was never maintained as a game preserve, nor were the animals raised or used for hunting purposes. The herd at one time had increased to one hundred and fifty head. A number of the deer were killed every year for food purposes, and it had for several years been the custom of defendant, during the holiday season, to purchase a small number of deer from Mr. or Mrs. Casey for sale at his meat market in Kansas City.,,

The defendant asked the court to declare the law to be as follows:

“The court, sitting as a jury, declares the law to be, that if it appears from the .evidence that the deer described in the information against defendant were purchased by defendant from Mrs. George M. Casey for value and were shipped to him from Clinton, Henry county, Missouri, to be sold in the Kansas city market; that said deer consisted of part of a herd of tame or domesticated deer which were bred and raised on the Casey farm near Clinton, Missouri, as domestic animals ; that said deer were kept constantly enclosed by fences and were not and had never been permitted to ran- at large or to be hunted as game; that said herd of deer was the product of a pair of deer raised as pets on the lawn of the Casey .home more than twenty years ago, and that a part of said herd were killed annually and sold and shipped to the Kansas City and other markets for food purposes, and that on and prior to June 16, 1905, the date on which the game law of Missouri, under which the information against defendant was brought, went into effect, the said deer were held by private ownership, legally acquired, then said deer are not within the provisions of said game law, and the defendant is not guilty of the offense or offenses charged in said information and must be discharged.”

This declaration of law was refused, and defendant excepted at the time.

The sections of the act having any connection with this prosecution are as follows:

“See. 1. The ownership of and title to all birds, fish and game in: the State of Missouri, not held by private ownership, legally acquired, is hereby declared to be in the State, and no fish, birds or game shall be caught, taken or killed in any manner or at any time, or had in possession except the person so catching, taking or killing or having in possession shall consent that the title to said fish, birds and game shall be and remain in the State of Missouri for the purpose of regulating and controlling the use and disposition of the same after such catching, taking or killing. The catching, taking, killing or having in possession of birds, fish or game at any time, or in any manner, by any person, shall be deemed a consent of said person that the title of the State shall be and remain in the State for the purpose of regulating the use and disposition of the same and said possession shall be consent to such title in the State.

“Sec. 13. It is hereby declared unlawful to kill or attempt to kill any deer in the State of Missouri under one year of age. It is further declared unlawful to kill any deer of any age between the first day of January and the first day of November in each year and for the purpose of preventing the extinction of the species it is hereby declared unlawful to kill any doe. It is further declared unlawful to make use of any artificial light in hunting or killing deer; and the wearing or having such light on the head shall he prima-facie evidence of the violation of this section. It is also declared unlawful for any person to wound, kill or capture any deer in the waters of the streams, ponds or lakes within the jurisdiction of this State, or to have in possession or transport at any time the carcass of any deer, or any portion of such carcass, unless the same has thereon the natural evidence of its sex. Any person violating the provisions of this section shall he punished hy a fine of not less than twenty-five dollars nor more than one hundred dollars.

“Sec. 43. It shall be the duty of the Game and Pish Warden to enforce all laws now enacted and which may he hereafter enacted for the protection, preservation and propagation of the game animals, birds and fish of this State, and to prosecute, or cause to he prosecuted, all persons who violate such laws. Said Game and Pish Warden may make complaint and cause proceedings to he commenced against any person for the violation of such laws and he shall not he obliged to furnish security for costs. Said Game and Pish Warden shall at any and all times seize any and all birds, animals or fish which have been caught, taken or killed at a time, in a manner, or for a purpose, pr had in possession, or which had been shipped, contrary to any of the laws of this State.

11 Sec. 45. All birds, animals or fish, seized by the said Game and Pish Warden shall be donated to some charitable institution in the county where such seizure was made. It is hereby made the duty of every warehouse, cold storage plant, merchant or common carrier, agent, servant or employee thereof, to permit the Game and Pish Warden to examine any package in the possession of said warehouse, cold-storage plant, merchant pr common carrier, or agent, servant or employee thereof, which.the said Game and Pish Warden shall suspect or. have reason to believe contains fish, game or birds protected by tbe laws of tbe State, and not entitled under such law to be transported or had in possession, or when the said Game and Pish "Warden shall suspect or have reason to believe that the said package is falsely labeled. Any person, firm or corporation refusing the Game and Fish Warden or any officer charged with the enforcement of the fish and game laws permission to examine or open any such package or impede such action by the Game and Fish Warden shall be punished by a fine of not less than fifty dollars nor more than one hundred and fifty dollars. Said Game and Fish Warden shall not be liable for damages on account of any search, examination or seizure made in accordance with the provisions of this act.

“Sec. 71. All bird, game and fish laws or parts of such laws formerly enacted and' inconsistent herewith are hereby repealed.”

Defendant asserts that the deer in question were not game animals in the ordinary and accepted meaning of the term, and were not embraced in or germane to the subject of the game law, as expressed in its title, and were not, therefore, within the provisions of said law.

Section 28 of article 4 of the Constitution of Missouri provides that “no bill . . . shall contain more than one subject, which chalí be clearly expressed in its title.”

The title of the act in question is as follows: “An act relating to the preservation, propagation and protection of game animals, birds and fish; creating the office of Game and Fish Warden; creating a game protection fund, and appropriating therefrom.”

As is said by counsel for defendant, the above provision of the Constitution has been construed by the Supreme Court to mean that an act cannot be broader than its title, and cannot include within its provisions any subject wbicb is not embraced in, or germane to, its title. [State ex rel. v. Baker, 129 Mo. 482; State v. Great Western Coffee & Tea Co., 171 Mo. 634.] But we think the title of the act is broad and comprehensive enough to embrace within its meaning all kinds of deer, whether tame or wild. They belong to that class of animals known as game animals; and the Legislature had the right to enact laws for the protection of all deer in order to prevent their extinction. In the case of State ex rel. v. Mead, 71 Mo. 266, it is held: “A provision in an act ‘concerning popular elections,’ au- ■ thorizing the Governor to fill vacancies in elective offices, is germane to the general subject, and is valid.” The term “game animals,” as used in the title of the act, includes all kinds of deer within this State, whether wild or reduced to captivity.

No owner of deer raised in captivity has a better title thereto than has the hunter at common law to the deer captured or killed by him, and it has always been held that the State has authority to regulate the sale of such game, or prohibit it altogether. In Commonwealth v. Gilbert, 160 Mass. 157, it is said: “In order to make the protection of the trout more effectual, it was deemed necessary by the Legislature to punish the sale, during the close season, of all trout except those which are alive. This was probably on account of the difficulty in distinguishing between trout which had been artificially propagated or maintained and other trout. On the construction contended for by the defendant, the law could not be so well enforced.” In People ex rel. Hill v. Hesterberg, 184 N. Y. 126, the court says: “To the argument that the exclusion of foreign game in no way tends to the preservation of domestic game, it is sufficient to say that substantially the uniform belief of legislatures- and the people is. to the contrary, and that both in England and many of the States in this country legislation prohibiting the possession of foreign game during the close season has been upheld as being necessary to the protection of domestic game, on the ground that without such inhibition or restriction any law for the protection of domestic game could be successfully evaded;” citing. Whitehead v. Smithers, L. R. (2 C. P. Div.) 553; Ex parte Maier, 103 Cal. 476; Mayner v. People, 97 Ill. 320; State v. Randolph, 1 Mo. App. 15; Stevens v. State, 89 Md. 669; Roth v. State, 51 Ohio St. 209; Commonwealth v. Savage, 155 Mass. 278. So, in the case of Haggerty v. Ice Mfg. & Storage Co., 143 Mo. 1. c. 247, it is.said: “It was to prevent the easy evasions of the statute that the law was passed in its present shape. And "on this ground it is analogous to statutes prohibiting the manufacture or sale of oleomargarine, and it is the only ground upon which such enactments can be upheld. The end being granted, to-wit, the power of the Legislature to enact a law for the protection and preservation of game; the means to effectuate that end, to-wit, the authority to prevent the law thus passed from being evaded by prohibiting- and making penal the possession of game after a certain period, follows as an-indubitable- corollary.” In State v. Randolph, supra, the court says: ‘ ‘ The game law would be nugatory if, during the prohibited season, game could be imported from neighboring States.'. It would be impossible to show, in most instances, where the game was caught.”

The end and object of the law, as expressed in the title, is the preservation and protection of game animals, and the provision inhibiting the possession by any one of the carcass of any deer which has not thereon the natural evidence of its sex. is a means to that end.

' As we have said, the deer in question come within the meaning of the term “game,” which means, animals ferae naturae, or wild by nature. It makes no difference that said deer were raised in captivity and had become tame, they are naturally wild. “There is no property in wild, animals nntil they have been subjected to the control of mam. If one secures and tames them they are his property; if he does not tame them, they are still his so long as they are kept confined and under his control.” [Cooley on Torts. (2 Ed.), 435; Manning v. Mitcherson, 69 Ga. 447; Amory v. Flyn, 10 Johns. 102; Com. v. Chace, 9 Pick. 15.] That deer are animals ferae naturae is held by all the authorities, and disputed by none.

The evidence shows that Mrs. Casey, from whom defendant bought the deer, was the owner thereof, having raised and held them in captivity up to the time they were sold to defendant. Defendant’s ownership was, therefore, such private ownership in game as is recognized by the first section of the act. Mrs. Casey had the same right to sell and deliver the deer to defendant that she had to sell and deliver any other property which she owned and possessed; but deer is game, within the meaning of the act which the Legislature had the power to enact for the preservation and protection of game, and the property rights of defendant in the deer were in no way infringed upon.

That the act prohibits the having in one’s possession the carcass of any kind of deer, unless the same has thereon the natural evidence of its sex, is indisputable. The section (13) refers to “any deer,” meaning any and all kinds of deer, and regulates the use thereof under the police power. The privilege of selling deer is not restricted or qualified by the act, but it makes it unlawful to have the carcass or any portion of it in one’s possession, unless the same has thereon the natural evidence of its sex. The section permits the killing of deer in certain seasons of the year, except deer under one year of age and does, the provision in regard to the killing of does being declared to be “for the purpose of preventing the extinction of the species;” and to render effectual the provision as to does, there is the provision which forbids the possession by any one of the carcass of any deer not having thereon the natural evidence of its sex. These restrictions and regulations do not interfere in any way with his property rights in and. use of the deer by the private owner. The provisions of the section are clearly embraced within the police power of the State, under which rights in private property must, to a reasonable extent, yield to the public welfare. Indeed, as said in State v. Judy, 7 Mo. App. 1. c. 525, “The Legislature may, in some cases, pass laws which destroy the right of property. The protection of game is a public advantage, to which private interests may be made to yield to some extent.” In Commonwealth v. Gilbert, supra, it is said: ‘ ‘ Such laws are not to be held unreasonable because owners of property may thereby to some extent be restricted in its use. It has often been declared that all property is acquired and held under the tacit condition that it shall not be so used as to destroy or greatly impair the public rights and interests of the community. Many illustrations might be cited where such restrictions on the use of property have been held valid. But the cases are familiar. The limitation is that the restrictions must not be unreasonable. The Legislature may ‘make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions, either with penalties or without, so as the same be not repugnant or contrary to this Constitution, as they shall judge to be for the good and welfare of this Commonwealth.’ [Const. Mass. c. 1, sec. 1, art. 4.] The Legislature may forbid, the catching or selling of useful fishes 'during reasonable close seasons established for them; and to extend the prohibition so as to include such as have been artificially propagated or maintained is not different in principle from legislation forbidding persons from catching fish in streams running through their own lands. The statute under consideration falls within this power. ’ ’

We entertain no doubt of the constitutionality of section 13 of the act. The case, so far as the constitutional provision invoked is involved, differs in no material respect from State v. Heger, 194 Mo. 707; Haggerty v. Ice Mfg. & Storage Co., supra; State v. Randolph, supra; State v. Judy, supra; People ex rel. Hill v. Hesterberg, supra; Geer v. Connecticut, 161 U. S. 519; all of which in effect hold that game laws regulating the. sale or possession of game importedfromother States, where the same was not taken in violation of law, do not interfere with any constitutional rights. While these adjudications recognize that game law-. fully taken and acquired in other States is the property of the person taking it, they hold that, under the police power of the State, certain uses of private property may be prohibited by statute for the public good, and that, for the better protection, of game within the State, laws may be enacted excluding all game from the markets of the State during certain seasons of the year, or entirely.

If the provision of section 13, which declares it unlawful to have in possession the carcass of any deer which has not thereon the natural evidence of its sex, should be construed as referring to deer in a wild state, and to such only, the evasion of the law would be an easy matter. Suppose the deer which defendant purchased and had in possession had been killed while iñ a wild state, there is no doubt that, the evidence of sex being removed, he would be guilty of a violation of the law; and, so far as the question of title or ownership is concerned, the title which a person holds to deer which he has raised and kept in captivity is no better than his title to the wild deer which he kills or captures, and reduces to his possession.

Defendant, however, contends that t!he word “deer,” as used in section 13, sliould be construed as meaning deer “not field by private ownership, legally acquired,” and that, otherwise’, the exception contained, in section 1 is disregarded and the act brought in conflict with section 21, article 2 of the Constitution, which prohibits the taking of private property for public use without compensation. For reasons already stated, we . are unable to concur in this contention.

There is no restriction or burden imposed by the provision of the act which the defendant has been found guilty of violating, save that it declares it unlawful to have in possession the carcass of any deer, or any portion of such carcass, unless the same has thereon the natural evidence of its sex, which, if a burden at all, is a very light and insignificant one, and fully justified as a police regulation.

The judgment should be affirmed. It is so ordered.

All concur.