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cause there is a defect of parties plaintiff, in this: that the petition shows that a deed of trust was executed conveying said land to a trustee, but said trustee is not made a party to this suit."

J. B. Ormsby, H. J. Akley, and C. W. Bolster, for appellants. Ira B. Hyde and H. G. Orton, for respondents.

an interest in the subject of the action necessary to its maintenance. We think the ruling of the learned circuit judge sustaining the demurrer was correct. The judgment is affirmed.

BRACE, C. J., and MACFARLANE and ROBINSON, JJ., concur.

BARCLAY, J. (after stating the facts). This case went off in the circuit court upon a demurrer to the petition. Those pleadings

STATE ex rel. RUTLEDGE et al. v. ST. the reporter will please copy at length, as

LOUIS SCHOOL BOARD et al. an introduction to the report of the case in (Supreme Court of Missouri. Dec. 10, 1895.) this court. The only question here is wheth- St. Louis School BOARD-POWER TO CONDUCT er or not the ruling sustaining the demurrer ELECTIONS—MANDAMUS TO COMPEL ELECTION. shall be affirmed.

1. If a school board is under a clear statu

tory duty to order an election, mandamus will 1. The object of this action is to set aside

lie to compel the performance of that duty. a deed of trust to land on the alleged ground 2. Citizens who are entitled to have the loof fraud in its procurement. Such a suit in- cality in which they live represented on the

school board may maintain mandamus to comvolves title to real estate, within the mean

pel the school board to order an election, as reing of the constitution, defining the juris

quired by statute. diction of this court, as heretofore inter- 3. Laws 1887, p. 272, fixing the terms of preted. Nearen v. Bakewell (1892) 110 Mo.

members of the St. Louis school board, modified

Laws 1833, p. 37, vesting the board with power 645, 19 S. W. 988.

to prescribe the time and manner of conducting 2. A pleading is, no doubt, to be liberally elections, to the extent of requiring elections to construed, in determining its effect, in ac- be held at some reasonable time near the close cordance with the command of the Code of

of the terms of office which the former act de

fined. Practice. Rev. St. 1889, § 2074. But that

4. The election act of 1895 (Laws 1895 [Sp. command has not been construed, nor was Sess.] p. 5) did not deprive the St. Louis school it ever intended, to dispense with the ne- board of the power to conduct elections of memcessity of stating, directly or inferentially, the

-bers of said board; and it was not excused, by

reason of the registration provisions of said law, facts on which the pleader depends to secure from holding the November, 1895, election to fill the object of his pleading.

the places of those members whose terms, as 3. The petition is defective, for the reason

fixed by Laws 1887, p. 272, expired at that

time, it appearing that the board could obtain assigned in the second ground of demurrer, the registry lists as they existed and were in if for no other reason. The Overton par- effect in August, 1895. ties plaintiff are alleged to be heirs at law

In banc. Petition for mandamus by the of the deceased, Moses Overton, whose deed

state of Missouri, upon the relation of Rutis attacked, but it is also alleged that he left ledge and others, against the St. Louis school a last will, which has been duly probated. | board and the individual members thereof, The terms of the will are not given, nor is

to compel said board to cause an election for its effect stated in respect of its disposition members of said board to be held in that of the land which was the subject-matter of

city. Peremptory mandamus awarded. the deed. Nor is it stated that the Overton

Rowell & Ferriss, for relators. Chas. B. plaintiffs have any interest in any real estate of his under the will. Where the fact of a

Stark, for respondents. will appears, the law does not then infer an intestacy as to any part of the property of

BARCLAY, J. This is an original prothe deceased. Webb v. Archibald (1895) 128 ceeding to obtain a mandamus against the Mo. 299, 34 S. W. 54. The parties who, un

St. Louis school board, the official title of der the will of Mr. Overton, deceased, are

which is the “Board of President and Dientitled to the real property referred to in

rectors of the St. Louis Public Schools." the deed sought to be conceled in this suit, The members of the board are joined as deare the proper parties to maintain the action, fendants. The relators are certain citizens on the facts as they appear in the petition and taxpayers of St. Louis. The object or under review. If the deceased made no dis

the desired writ is to require defendant to position by will of the land in controversy,

cause an election for members of the said that fact should appear to entitle those re- board to be held in that city. An alternalying thereon to maintain the action as rep- tive writ was issued on representations of resentatives of the title of the deceased. If the relator's. A return thereto has been a party who is united in interest with those made by defendants, and a demurrer to the who wish to bring such an action refuses return has been argued and submitted. The his consent thereto, he may be made a de- controlling facts are admitted, and the issue ·fendant, in accordance with the Code pro- is one of law. vision to that effect. Rev. St. 1889, $ 1995. The St. Louis school board is a corporation But that provision does not relieve plaintiffs for the purposes of public education. It is who bring a suit thereunder from showing l invested with the control and management of the interests of the public schools in the , in fact held at that time, and no election has city of St. Louis. It was incorporated in yet been called for 1895. These facts appear 1833 by a special act. Laws 1833, p. 37 (2 from defendants' return, filed in this case Terr. Laws, p. 399; Rev. St. 1889, p. 2170, after the date appointed for the election in f 1). But various amendments to the orig. 1895, by the rule above quoted. The ground inal charter have been made from time to on which the board has concluded to hold no time, the effect of some of which it will be election at the usual time in 1895 is, to state necessary to consider. The board at the its substance shortly, that the board is of present time is entitled to an official mem- opinion that it cannot obtain complete regbership of twenty-one. Seven members are istration iists for use at such election, on acelected from the city at large, and fourteen count of the change of law governing the from separate districts, each choosing one registration of voters in large cities. Laws member. This is ordained by the act of 1887, 1895 (Sp. Sess.) pp. 5-43. It is conceded that popularly known as the

the "Drabelle Law.” the board can obtain the lists as they existLaws 1887, p. 272 (Rev. St. 1889, $ 8113, and ed near the close of the month of August, following). That act was held to be a con- 1895; but the claim is made that, as those stitutional measure, first, by the general lists may be imperfect by reason of omisterm of the circuit court, city of St. Louis, sions of names of voters entitled to registry and afterwards by the supreme court in since that time, no proper election can be State v. Miller (1890) 100 Mo. 439, 13 S. W. held based upon such registration lists as can 677. The act, among other things, declares now be obtained. In this state of the case that the board first elected thereunder shall relators insist that the board should be redivide itself by lot into two groups of 11 quired to order an election. and 10 members respectively. The term of 1. If the board is under a clear statutory the first group is fixed at four years, and duty to have an election, there can be no of the second group at two years, at the out- doubt that mandamus is an appropriate set of the new arrangement; but thereafter method of requiring the performance of that the full term of the office of director is to duty. State v. School Directors of Springbe four years, excepting only where vacan- field (1881) 74 Mo. 21; State v. Brown (1882) cies are filled, or a holding over is necessary 38 Ohio St. 314; State v. Ware (1886) 13 Or. until the qualification of a new member.. 380, 10 Pac. 885. Rev. St. 1889, $ 8115, as amended; Laws 2. The relators describe themselves as “citi1893, p. 249, § 8115. In accordance with the zens, taxpayers, and resident householders terms of the law of 1887, an election was of the city of St. Louis,” but it is insisted for held in November, 1891, at which 11 of the defendants that private persons cannot set present board were chosen. One of the oth- on foot a proceeding of this nature without, er group of members (elected in November, at least, the sanction of the official represen1893) resigned in the early part of 1895, so tatives of the state or of the locality affectthat the vacancy thereby occasioned is to be ed by the application. On this point the filled at the next general school election. Id. precedents in other jurisdictions are not in The power originally given to the board “to accord. It is needless to review them, for prescribe the time, place, and manner of in Missouri several cases have dealt with conducting the elections of members" has this subject, and the conclusion has been not been wholly repealed, though modified reached that where a public right is involved, by subsequent amendments. The Drabelle and the object is to enforce a public duty, law, however, undoubtedly limited and modi- the people are regarded as the real moving fied that power in one respect, important to party; and in such a case the relator in notice. It fixed the full term of membership mandamus need not show any special or peat four years, after the short terms expired culiar interest in the result if the performof those drawn by lot for two years at the ance of the general public duty obviously beginning of the plan of selection establish- affects his rights as a citizen. State v. Haned by that law.

nibal & St. J. R. Co. (1885) 85 Mo. 13; State The board recognized the force of this v. Francis (1898) 95 Mo. 44, 8 S. W. 1. We change by the rules it adopted for its own see no reason to depart from that rule, nor government, the first of which, concerning do we see anything in the case at bar that “Elections,” is as follows:

prevents its application. The relators have “Rule 1: Elections—When to be Held. Elec- the right, as citizens of the locality, to reptions for directors of the board of presi- resentation in the school board by members dent and directors of the St. Louis public chosen in conformity to the law on the subschools shall be held biennially in the city ject. We regard their interest as sufficient at large, and in the respective districts, on to sustain their position as relators, under the first Tuesday in the month of November. the rulings above cited. Such elections shall be managed and govern- 3. But it is next contended that the board ed according to the provisions of rule 2." has a discretion to prescribe the time and

In September, 1895, however, the board, or manner of conducting school elections, and a majority thereof, after due consideration, that that discretion cannot be controlled by decided to hold no election on the first Tues- mandamus. The Drabelle law repeats, in day of November in 1895. No election was substance, the oldest provisions of the char

ter of the board on that point (Laws 1833, p. 38, § 4; 2 Terr. Laws, p. 400); but it adds this important modification, namely: "Subject to the provisions of this act" (Laws 1887, p. 273, $ 4; Rev. St. 1889, $ 8116). That act, in effect, fixed the term of the directors now in office, who were elected under it in 1891, at four years. The language of the act itself, as well as that of the amendments thereto in 1889 and 1893, plainly contemplates that there shall be a general school election in St. Louis every two years. Reading the act as an entirety, there can be no doubt that the legislature intended to limit the power of the board over the elections of is own members to the extent of requiring elections to be duly held to choose their successors, at some reasonable time near the close of the terms of office which that act defined. To that extent the discretion of the board as to the time of holding elections is limited, and mandamus may be used to keep that body within the limits of that discretion, just as the writ may be sometimes used to require judicial officers to render some judgment, even in circumstances where the writ cannot properly direct what particular judgment shall be pronounced. At the present time the terms of office of the directors in question have expired, according to the Drabelle law. It is hence the duty of the board, under that law, to call an election to choose their successors, unless the objection next discussed affords a reason for not doing so.

4. The principal ground of resistance to the calling of an election at present to fill the places of the members whose terms have expired is the contention that no sufficient lists of registered voters can be obtained for use at such election, owing to the provisions of the election law of 1895 for large cities. Laws 1895 (Sp. Sess.) p. 5, and following. The school board do not claim that the election commissioners should hold the school election. On the contrary, the former assert the power (under the particular terms of the laws governing the board) to prescribe the time, place, and manner of conducting such elections. That power was conferred by the charter of 1833, which is still operative, except so far as it is modified by later amendments. That provision of law, being special in its nature, should be held yet in force, notwithstanding the very large and comprehensive language of section 16 of the said election law of 1895. Laws 1895 (Sp. Sess.)

A special or local law on one topic is not to be held repealed by a later general law which touches the same topic, unless the intent to repeal the former is manifest. The question on that issue is one of intent, and the intent is to be gathered from the terms and circumstances of the acts themselves, interpreted according to the established canons of construction. In our opinion, the election act of 1895 was not intended to deprive the school board of the power to

conduct elections for members of that body. Under a statute of 1881 (Laws 1881, p. 207), the electors at a school election in St. Louis are those persons "who are, under the laws in force for the time being, qualified voters for city officers in the city." This definition would require that a person should be registered as a voter in order to participate in a school election, since that qualification (among others) is essential to the right to vote for city officers under the existing laws, enacted in obedience to a positive command of the constitution. Const. 1875, art. 8, § 5. It appears from the papers in this case that the school board has for many years followed the practice of obtaining lists of registered city voters from the registry officers. . Those lists have been used at school elections by virtue of arrangements between the board and those officers. Under the act of 1895, governing the custody of the registry lists in St. Louis, the board of election commissioners has control of them as they stood when that act went into effect. By its terms, it is provided that the recorder of voters shall deliver the registry books, etc., to the new election board, and that "all the powers and duties now vested in and required of the recorder of voters shall hereafter (unless otherwise provided in this act) rest in and be required of said board of election commissioners.” Laws 1895 (Sp. Sess.) p. 7, § 2. The old registration law, which the act of 1895 was designed to supplant, was certainly operative until the latter part of August, 1895. The registry lists were at that time the official exhibit of the names of the registered voters. Those lists (or copies), it appears, can be had, if desired by the school board, for the purpose of an election, The present case does not require us to express an opinion as to the powers and duties of the new election board touching the continuance of registration for the purposes of school or other elections held prior to the date at which the general registration contemplated by that act will begin. It is obviously better for us to refrain from determining in advance the legality of any proposed line of action that may be suggested for the holding of the school election. It is enough now to say that we do not regard the new election law of 1895, referred to, as constituting a sufficient legal obstacle to prevent an election under direction of the board, in the circumstances here disclosed. Although the terms of office of directors (and consequently the time for general school elections) are now determined by the Drabelle law, the mode and “manner of conducting" the elections are committed to the school board's discretion, within the restrictions marked by the law governing the board. We deem it inappropriate, in awarding this mandamus, to also direct the course of the board as to the manner of holding the election, although we conceive it our duty to direct the board to order an election. It

p. 12.

may possibly be that no question will be be represented by their general guardian, or raised as to the validity of the course the one appointed by the court, the failure to ap

point a guardian ad litem to represent an infant board may adopt in conducting the election.

plaintiff in such a suit, who sues by next friend, Until such a question arises, it is unneces- does not render the judgment void as to the sary to consider its merits or the form it infant. may possibly assume. Even if it is conced

6. When in partition proceedings the prop

erty is purchased by one of the parties under an ed (as defendants urge) that the effect of the

agreement with others that the property shall new election law of 1895 is to preclude the be held for their joint benefit, a party to such entry of transfers or new registration of agreement is estopped to attack the validity of qualified voters for several months after the

the sale on the ground that the court had no

jurisdiction of his person. law became operative, and until after the 7. A judgment cannot be collaterally atschool election, that state of the law would tacked by a party on the ground that the appearnot prolong the term of office of any school

ance of an attorney for him was unauthorized.

8. A statute requiring all persons having director, or justify postponing for a year the

an interest in the premises to be made parties election of his successor. It would merely in an action for partition does not enable one indicate an omission on the part of the legis- of the parties to a judgment for partition to

avoid it on the ground that others, who were lature to adequately provide for a complete

not parties, had an interest in the premises. and perfect registration that might be utilized for the purposes of school elections. If Appeal from circuit court, Jackson county; the registration law is, perchance, deficient James Gibson, Judge. in this particular, the consequence is not a

Action by Charles A. Cochran and others prolongation of the statutory term of a di- against Joel Thomas and others.

There was rector's office. It appears to us that the a judgment for defendants, and plaintiffs apboard is under the plain duty to proceed at peal. Affirmed. once (as promptly as may be, following the

This suit is ejectment, prosecuted by usual course) to cause an election to be held Charles A. Cochran, George Lester Cochran, to choose the successors to the 12 directors A. L. Cummins, and W. J. Turner, as plainmentioned. The demurrer to the return is tiffs, the two last being the husbands, resustained, and a peremptory mandamus is spectively, of Medora (Cochran) Turner and awarded, conforming to this opinion.

Anna (Cochran) Cummins, in whose right

they claim. Plaintiffs claim title as heirs at BRACE, C. J., and GANTT, MACFAR- | law of Harriet Cochran, deceased. DefendLANE, SHERWOOD, BURGESS, and ROB- ant Thomas is the tenant of his codefendants, INSON, JJ., concur.

who claim title under a sheriff's deed in a certain partition proceeding, in which they claim to have acquired the title of plaintiffs.

They also claim under a tax deed and the COCHRAN et al. v. THOMAS et al. .

statute of limitations. The petition is in the (Supreme Court of Missouri, Division No. 1.

usual form, except that it avers the prior Nov. 26, 1895.)

ownership of Margaret Cummins, her death, TRIAL BY COURT-FINDINGS-PARTITION-PARTIES

and the inheritance of the land by plaintiffs --MARRIED WOMEN-JUDGMENT-INFANTS

as her heirs at law. The answer is, in sub-ESTOPPEL-COLLATERAL ATTACK.

stance, a general denial and a plea of the 1. Rev. St. 1889, § 2135, providing that the statute of limitations. The cause was tried court, when requested by either party, "shall state in writing the conclusion of facts sepa

to the court without a jury, "and, at the rerately from the conclusions of law,” requires quest of defendants, the court, in its findings, the court to find and state in writing, not only stated in writing the conclusions of fact every constitutive fact in issue to which his found separate from its conclusions of law." attention is directed, but also separately the conclusions of law thereon, so that exceptions may

The substance of the finding of facts was that be taken thereto.

James Cochran was first married to Hannah 2. Under Gen. St. 1865, c. 152, which treats Moore in 1819, by whom he had four chilof the entire subject of partition, and which

dren, some of whom are still living. His first makes no difference between an interested married woman and any other person in interest, it

wife having died, he married Harriet Ritchie is not necessary that husbands of interested November 13, 1829. By this marriage Anna married women should be made parties to parti- was born May, 1836, and married plaintiff tion suits.

A. L. Cummins October 11, 1858; plaintiff 3. Under the practice act (Gen. St. 1865, C. 161, § 8), providing that a married woman may

Charles A. was born October 4, 1839; Mesue and be sued alone in an action regarding dora was born November 19, 1842, and was her "separate property," and, when her hus

married to plaintiff Turner April 25, 1865; band cannot be joined with her, she may sue by next friend, a married woman, in a suit for the

and plaintiff George L. was born March 7, partition of land in which she is interested in 1855. Of this marriage was also born, Authe remainder after a life estate, properly sues gust 27, 1846, Harriet, who died single and or defends by next friend.

intestate, without issue, December, 1890, and 4. The failure to sign a petition for partition by the parties or their attorneys, as required by Albert, born August, 1850, who died single, statute, cannot be regarded as a matter of sub- intestate, and without issue, in September, stance, and therefore does not render the judg

1866. In February, 1831, the United States ment void. 5. Under Gen. St. 1865, c. 152, $$ 46, 49,

by patent conveyed to Gabriel Predom the providing that infants in partition suits should S. W. 14 of section 32, township 50, range 33

W. The lot sued for is part of this quarter September 19, 1867, which on the same day section. The land claimed in this suit is a was filed for record. By mesne conveyances part of lot 184 in Kansas City. On February from James Cochran, the title acquired by 14, 1859, John Campbell, by sufficient deed, him was on June 17, 1868, vested in Howard for the expressed consideration of $1,600, M. Holden and Lyman Fullerton, as tenants conveyed to the said Harriet Cochran, the in common by deed from George Wilson, mother of plaintiffs, the whole of said lot containing full covenants of warranty of title. 184, which deed was duly recorded in May, On June 11, 1864, a tax deed was made by the 1861. This lot fronted 60 feet on Wyandotte city register, which purported to convey to street, in Kansas City, and has been within Daniel Burns said lot 184. On July 3, 1868,

Burns, by quitclaim deed, in consideration of deed. The said Harriet Cochran died intes $600, conveyed said lot to said Holden and tate August 25, 1861, her husband, the said Fullerton. The court found that Holden and James Cochran, and plaintiffs Charles A. and Fullerton purchased and paid for said lotGeorge L. Cochran, and the said wives of $3,125 to Wilson, and $600 to Burns-in good plaintiffs Turner and Cummins, surviving faith, believing that this deed would secure her. On March 14, 1867, a suit for the par to them a good and perfect title to the lot. tition of said lot was commenced in the cir Defendants claim under a regular chain of cuit court of Jackson county. The heirs of title from Holden and Fullerton. The court one Benjamin V. Glime, with the said. Har further found that in the year 1868 the said riet Cochran and plaintiff George L. Cochran, Holden and Fullerton took the actual poswere named as plaintiffs, and the said Anna session of the lot, and the same has been (Cochran) Cummins, Charles A. Cochran, Me held by them, and their grantees, openly, dora (Cochran) Turner, and James Cochran notoriously, exclusively, and adversely since were named as defendants. Three of the that date. James Cochran,

Cochran, the surviving plaintiffs sued by W. H. Phelps as their next husband of the said Harriet, died January 12, friend. His name was written by himself 1881, and this suit was commenced January in the caption as next friend, but the petition 9, 1891. The court concluded its finding as was not signed by him. The petition was follows: "As matter and conclusion of law, signed by Douglass & Gage, as attorneys for on the foregoing special findings and concluplaintiffs, and was sworn to by William sions of facts, the court finds for defendants." Douglass, as agent for plaintiffs. The an Plaintiffs offered evidence tending to prove swer was filed on the same day, March 14, that they did not authorize their appearance 1867, was signed, “Charles A. Cochran, James in the partition proceedings, and did not reCochran, by Wm. Douglass, Their Attorney," ceive the proceeds of the

of the sheriff's sale. and was as follows: "Said Anna (Cochran) Plaintiffs asked, and the court refused to give, Cummins, by F. A. Mitchell, her next friend, declarations of law to the effect that, if the Medora Turner, by F. A. Mitchell, her next appearance of the parties to the partition suit friend, Charles A. Cochran, and James Coch was not authorized, the judgment would be ran, answer and admit that all the allega void as to such parties. The judgment upon the tions in the petition of plaintiffs are true, and facts found was for defendants. The grounds they ask and consent that partition of the assigned for a new trial, on motion therefor, premises be made according to the prayer were the omission of the court to find, among of the petition, and that a final decree herein others, the following material facts: Whethbe rendered at this present term of this court, er George L. Cochran, Charles A. Cochran, and for all such orders and judgments as Medora Turner, or Anna C. Cummins, or any may be necessary.” The name "F. A. Mitch of them, authorized their appearance in the ell," where it occurs in the answer, was writ partition proceedings, or received the proceeds ten by himself, he at the time being an at of the sheriff's sale; whether certain orditorney at law practicing at Kansas City. nances of the city of Kansas were in force at The petition charged that Harriet Cochran the time of the assessment and sale of the lot and Benjamin V. Glime purchased the lot of for taxes; and whether the lot was assessed John Campbell, with the intention of hold in the name of J. Cochran for the taxes of 1861. ing the same as tenants in common, each pay The refusal of the court to give the declaraing $800 of the purchase price, and that the tions of law was also assigned as a ground conveyance to Harriet Cochran of the entire for new trial. The motion was overruled, interest was through a mistake. It then stat and plaintiffs appealed. ed the rights and interests of the parties as heirs of the said Glime and the said Harriet

L. A. Laughlin, for appellants. Jefferson Cochran, and prayed partition and sale of

Brumback and C. 0. Tichenor, for respondthe lot. On the same day, the court being in

ents. session, a decree of partition and sale was entered. The findings and recital of the court MACFARLANE,J. (after stating the facts). were that the parties all appeared. Under 1. A preliminary question of practice is raised, this decree the lot was regularly sold by the which may be first settled. It is said that a sheriff to James Cochran, the surviving hus general conclusion of law that “the court band of Harriet Cochran, deceased, for $2, finds for the defendant" is insufficient to an000. A deed was made to the purchaser swer the requirements of the statute that the

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