I am unable to agree in the leading opinion in this case.
The Board of Directors of Consolidated School District No. 10 determined to issue bonds and submitted the proposition to the voters of the said district, who voted the bonds byDe Facto an affirmative vote of 590 to 71. No question isCorporation. raised as to the regularity of that proceeding.
The bonds are claimed to be invalid, because of alleged illegality by which Consolidated School District No. 10 was organized. According to the above statement, it was a de facto functioning school district, such a one as if properly and legally organized could discharge the functions incident to a dejure school district. Since all the acts relating to the issuance of these bonds were conducted and carried through by ade facto school district, they cannot be invalidated by a collateral attack such as this. [State ex rel. Waddell v. Johnson, 316 Mo. 23, and cases cited; Perkins v. Fielding, 119 Mo. l.c. 158, 159; In re Oak Street v. McTernan, 308 Mo. l.c. 508; 43 C.J. 140; State ex rel. v. Jones, 8 S.W.2d l.c. 69; State v. Rich, 20 Mo. 393.]
It is claimed by the respondent, and the opinion adopts the view, that the organization of Consolidated School District No. 10 was not merely irregular, but was absolutely void, and therefore had not a de facto existence. It is true that a mere usurper of an office is not a de facto officer, and mere assumption of the existence of a school district by purported directors of such district would not be a de facto corporation, nor the said directors de facto officers. The distinction is this: If the district is exercising functions, which under the law it might exercise if properly organized, then it is a defacto municipal corporation, and its acts cannot be questioned in a collateral proceeding. But, if such a district as this purports to be could not exist under the law, then, of course, its acts may be attacked collaterally. It is a school district composed of five separate districts. Undoubtedly such a consolidated school district as this, composed of the separate districts by which it was formed, could exist *Page 260 and perform the functions of such district. I believe that is not disputed.
II. The point of attack is upon two steps in the proceedings by which this district was formed. Originally the town of Hayti, Pemiscot County, and surrounding territory composed a town school district, called Hayti School District No. 16.Irregular containing 10,080 acres, and by the lastProceedings. enumeration had 683 pupils of school age. The voters of that district, in March and April, 1927, attempted to separate that district into two districts, leaving the town district with 4,000 acres and detaching the country district of 6080 acres. That left 309 pupils in the town district, and 374 in the country district of school age. The proceeding was irregular. In dividing the district, it proceeded under the pretext of changing the boundary lines of the district, which it had no right to do. Subsequently, in the very next month, Consolidated School District No. 10 was formed by re-attaching the detached territory and including another country-school district, No. 14. It is said that this is illegal, because, and only because, the original detachment of a part of the town district of Hayti was illegal. Section 11258, Revised Statutes 1919, as amended in 1925, provides that no consolidated districts shall be formed under the provisions of this article, unless it contains an area of at least fifty square miles and it shall not include a town district which has an enumeration of 500 children of school age. If the detachment of territory to form School District No. 58 was null and void, then Hayti had more than 500 pupils of school age, so the validity of the consolidation it is claimed depends entirely upon the validity of the division of the original town school district. District No. 14 could have been attached to No. 16, under Section 11252, Revised Statutes 1919. Later in the same year two other districts, Nos. 11 and 49, were annexed to Consolidated District No. 10 under that section.
In the case of State ex inf. Attorney-General v. School District, 314 Mo. 315, territory was attached to a town district under the pretense of changing boundary lines, the same proceeding as here. It was held to be illegal, but yet, on account of laches of the relators who attacked the validity of the organization, they were denied relief. It was quo warranto and a direct attack. No doubt under the facts of that case, if there had been a collateral attack upon that organization, the action would not have been entertained.
The effect of the action in this case was to annex District No. 14 by a roundabout and illegal method. It might have been annexed *Page 261 regularly and lawfully by proceeding under SectionDistrict 11252. Thus, Consolidated District No. 10 isNo. 14. functioning, discharging the duties it might have discharged as District of Hayti No. 16, including District No. 14, if No. 14 had been annexed legally. Therefore Consolidated District No. 10 is a de facto corporation. A mere change of name and absorbing unwarranted territory does not destroy the effect of its acts. It cannot be said that no school district exists in that territory, nor that no directors can officiate there.
In the case of Randolph v. Moberly Hunting Fishing Club,321 Mo. 995, 15 S.W.2d 840, Point IV, the court en banc held, all of the judges concurring, that, where a county was exercising jurisdiction over certain territory and that fact was shown by the plaintiff in making out his case, he could not then attack collaterally that jurisdiction by showing that there was no law by which jurisdiction could be acquired. In fact, there was a statute which prevented the acquisition of territory by a county in any manner except the manner prescribed by that statute.
It is argued that, on account of the irregularity, the Hayti Town School District had more than 500 pupils, and therefore could not become a part of the consolidated school district by attaching other territory under Section 11258. After the attempted division, the town district had less than 500 pupils. It could only be shown that it had more than that by counting those in the detached territory. It then became a question of fact whether there were 500, more or less, and that fact could not be inquired into except by a direct proceeding.
In State v. Rich, 20 Mo. 393, a criminal case, the validity of the organization of Stone County was brought in question, and it was claimed that under the statute the organization of the territory of Stone County by detaching it from Taney County would leave in the latter county less population than the existing ratio of representation required. Taney County could not be dismembered legally in that way. It was claimed that the proceeding was utterly void. It was held that the fact of population could not be questioned in that collateral proceeding. That case has been cited in several recent cases. [Bayha v. Fidelity Casualty Co., 217 S.W. l.c. 273, 274; Lumber Co. v. Lead Co., 222 S.W. l.c. 400.]
III. The bonds were legally voted. Consolidated School District No. 10 was composed of five original districts, Nos. 16, 58, 14, 11 and 49. If No. 58 was not legally detached fromFunctioning No. 16, No. 10 was composed of four. It is notCorporation. disputed that Nos. 11 and 49 were legally and properly annexed under Section 11252. The fact that the Town School District of Hayti chose to go under another name, Consolidated School District *Page 262 No. 10, and the annexation of Nos. 11 and 49 occurred as if it bore that name, did not affect the validity of that annexation. They were disorganized and were merged with No. 10 (or 16). Thus No. 10 was regularly and legally composed of original Nos. 16, 11 and 49, all the territory it claims except that comprising 14. Only that territory does not properly belong to the district, respondent claims.
The vote on the bond issue in the entire territory was 590 for and 71 against. If all those negative votes were cast by voters in the territory other than No. 14, it could not have defeated the bonds, unless more votes were cast for it in No. 14 than in all the rest of the territory, a patent impossibility.
Respondent does not claim, nor does the leading opinion, that no legal votes were cast, or that there was no school districtat all in which an election could be held, or that no school directors had been elected nor could be elected there; that the territory where they had maintained schools and paid taxes for that purpose for two years was merely unorganized territory, incapable of doing those things. But that is the only theory upon which the vote on these bonds could be declared null and void in any action.
The claim of respondent is that Town School District of Hayti still exists, including No. 58. He does not deny that Nos. 11 and 49 were legally annexed to it. He only claims that District No. 14 was not legally annexed. Then it is a de jure corporation, unless the assumption of another name puts it out of existence. The same territory and the same people are there, the same need of schools, and the schools are there and taxes paid to maintain them. The district performs as if it existed.
To say that, because one country district. No. 14, out of all the territory, was illegally annexed, it caused complete dissolution of all school organization in that territory, is an absurdity, which respondent has not ventured to maintain. How can it be said that the directors, who submitted the proposition to a vote, were not, at least, de facto, officers, or that the voters did not vote legally upon it?
If respondent's contentions should be allowed, we would be confronted with these results:
Taxes were levied and collected without authority in all of District No. 10; there was no board of education there, for the district did not exist and the alleged directors or board were mere usurpers, assuming charge of property with which they had no right to meddle and causing the disbursement of money over which they had no legal control; teachers entered void contracts with this non-existent board, and, if they have not received their pay, may sue in quantum meruit a phantom entity which vanishes as you look at it; the usurping treasurer of said non-existent board has disbursed *Page 263 sums of money which he had no right to handle at all; the seeds of many lawsuits are planted and general chaos reigns in a large community, where the people thought they were protected in their acts by the law.
For these reasons I dissent. Blair, J., concurs.