(234 S. W.)

county superintendent of schools was coerced | ed and intimidated by defendants, and cominto calling the special meeting therefor; it pelled, against his will, to call the special being his duty to call such meeting on proper meeting to order, which had assembled, upon petition. notice, to pass upon the question of forming said district and electing directors therefor.

5. Quo warranto 55-Amended certificate, showing proposition voted on at school meeting, held admissible.

Where, in quo warranto attacking the validity of organization of a consolidated school district, the relators put in evidence a certificate filed by the officials of the special meeting, showing that the proposition voted on varied from the notices as to the boundaries, it was not error to receive in evidence an amended certificate, showing that the first was erroneous, and that the proposition coincided with the notices.

(d) That the chairman and secretary of said meeting had filed a certificate with the county clerk, showing that the proposition voted on differed from that contained in the notices for said meeting.

Upon exhibiting this information the respondents moved to strike out all of the first three of the above propositions, on the grounds that such allegations did not state a cause of action. Such motion, being in its nature a demurrer, was sustained over the objection and exception of relators and ap

Appeal from Circuit Court, Linn County; pellants. Fred Lamb, Judge.

Quo warranto by the State, on the relation of Henry J. West, Prosecuting Attorney, at the information of Elwood Thudium and others, against the Consolidated School District No. 2 in Linn County and others. Judgment for defendants, and relators appealed to the Court of Appeals. Transferred to Supreme Court. Affirmed.

C. C. Bigger, of Laclede, and Bresnehen & Burns, of Brookfield, for appellants.

E. B. Fields, of Browning, for respondents.

REEVES, C. This is a proceeding by quo warranto filed by the prosecuting attorney of Linn county at the relation of one certain school district and 10 taxpaying citizens residing therein against a certain consolidated school district, its clerk and its six members of its board of directors.

The purpose of the proceeding is to challenge the validity of the formation of said consolidated district, and to oust the several named respondents from their several offices as members of said board of directors and as clerk of said district.

There is no dispute as to the election of said officers, but an ouster is sought upon the grounds that, the organization of said consolidated district being illegal, they function said offices wrongfully, as no such offices were created in law.

The petition alleges that proceedings were instituted conformable to law for the formation of a consolidated school district, and that such organization was rendered invalid by the following:

(a) Relators were too remote from the place where schools were to be maintained and separated therefrom by West Yellow creek, sometimes impassable.

To the balance of the petition or information respondents made return and answer, alleging the formation of said consolidated district conformable to an act of the Legislature of Missouri approved March 14, 1913, as amended by the act of the Legislature approved March 27, 1917, and upon general denial in replication the matter went to trial, where the issues were determined adversely to relators and the validity of the district upheld and their information or petition dismissed.

At the trial it appeared that the chairman and secretary of the special meeting had made up and filed a certificate, showing that a proposition differing from that contained in the notices had in fact been voted on, but subsequently an amended certificate was filed, showing that the meeting had voted on the exact proposition contained in the notices.

[1] The office of school director being an office under this state (State ex inf. Sutton v. Fasse, 189 Mo. 532, 88 S. W. 1), this court has exclusive jurisdiction, as all cases involving "the title to any office under this state" come here (section 12, article 6, Constitution of Missouri). Originally the case was sent to the Kansas City Court of Appeals, but for the above reasons was properly transferred to this court.

[2] Upon the foregoing facts relators as appellants here complain that the court should not have stricken from their information the allegations regarding the impracticability of the formation of said district, of the fraud and deceit practiced upon the county superintendent of schools, and the coercion and intimidation to which they allege he was subjected. They also complain at the action of the court in admitting the amended and and corrected certificate from the chairman

(b) The superintendent of county schools, and secretary of the special meeting. The in answering the petition for the formation of such consolidated district, was misled by the defendants, and was the victim of fraud and deceit practiced by them.

court properly sustained the motion to strike out the portions of the information or petition mentioned. The requisite number of citizens and voters of the community, con(c) That the said superintendent was coerc- formable to the act of the Legislature ap

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Whether he was deceived or derelict in the performance of his duty, according to the

proved March 14, 1913, had filed their peti-were just as apparent to him, or should have tion to the county superintendent of public been, as to his alleged deceivers. schools of Linn county, expressing their desire to form a consolidated district. The petition, properly offered in evidence, evidence in the case, the people by a vote shows that it included district No. 24 wherein of 77 to 14 accepted his judgment, and it the relators resided. This petition initiated nowhere appears that the voters failed to unthe movement for the consolidated district, derstand the exact proposition upon which and under the statute was sufficient to invoke they were voting. the exercise of the discretionary powers of [4] The question as to whether or not the the county superintendent of public schools. superintendent was coerced and forced by inIt was not his function to determine whether timidation to call the special meeting to oror not a consolidated district should be form- der can be disposed of by stating that this ed, as that was a question for the qualified was his statutory duty, and therefore he voters of the district to determine, but it was could not be coerced and intimidated to do his duty to investigate the needs of the com- that which clearly the statute enjoined upon munity, and determine the exact boundaries him to do.

of the proposed consolidated district. Under Counsel for appellants call attention to the the statute he could only fix the exact bound-case of State ex rel. Hilbert v. Glaves et aries for the purposes of notice for the special al., 268 Mo. 100,1 wherein a discrepancy bemeeting, and it was not within his power to tween two plats showing the boundaries of dictate to the community whether certain a proposed consolidated district appeared. large portions of the proposed district should The court in passing upon such discrepancy be included or not. The allegations, there- considered it too trivial upon the facts in fore, regarding the remoteness of relators that case for judicial interference, and parfrom the proposed school building and the ticularly as no evidence of fraud appeared. difficulty that might be experienced in cross- Such discrepancy as appeared in the Glaves ing West Yellow creek were not questions to Case was only of immediate concern to the be passed upon by this official. We are pur-voters, as the will of the voters had to be suaded that this is so because the petition expressed upon the plats submitted by the filed with him included district No. 24, where- superintendent. In this case there is no such in relators reside. question. The voters admittedly had before [3] The statute made it his duty to locate them the plats showing the exact proposed the boundary lines as in his judgment would boundary lines, and therefore the question form the best possible consolidated district, of the boundary lines was fairly settled, and always mindful of the welfare of adjoining whatever the judgment of the county superdistricts. These questions were discretion- | intendent, and however reached, that judgary, and appealed to his sound judgment, ment was submitted to the voters and acand are not judicial questions, so, therefore, cepted by them. Fraud and deception, if the judiciary would not be at liberty to in-any, practiced upon the county superintendterfere with the exercise of a discretion by ent would be too remote, and such allegations this official, except that same had been of the petition were properly eliminated. abused, and no such question has been raised here.

[5] At the trial of the case relators offered the original certificate filed by the chairAgain there was a remedy against the bad man and secretary of the special meeting with judgment of the superintendent, if any, as the county clerk as required by law. This the people affected had the absolute right, certificate showed that the proposition voted upon notice, to accept or reject the bounda- on covered four full districts, including reries as marked off by him. On the question lator district, but failed to show that porof fraud and deceit, these questions were tions of adjacent districts had been included not issuable, for the reason that the county as in the notices. Over the objection and exsuperintendent was exercising a ministerial ception of relators respondents offered an duty, and it is of no consequence what repre- amended certificate, which showed that the sentations might have been made to him, as proposition voted on conformed to the notices he is not a party to this record, and there given. No error was committed by the court was no allegation that the people who voted in admitting this corrected certificate, as it on the questions involved were either deceiv- was the duty of the chairman and secretary ed or misled. On the other hand, we cannot of the meeting to file a certificate showing see how the superintendent could have been what actually occurred at the meeting, and deceived, as the law made it his duty to visit because of their mistake no harm should be the community, and undoubtedly he could see suffered by the district, and no complaint the geographical and physical conditions of could justly be made against the introducthe proposed district and understand the situ- tion of testimony showing what the voters ation as others. Even if he were a party actually did, as an error of the chairman to this action, no fraud could have been prac-and secretary would not preclude such testiticed upon him and neither could he have been misled or deceived because all the facts

mony.

Many of the questions here passed upon

(234 S. W.)

2. Extradition 30-One is a fugitive wheth-extradition to another state, contention that er he has filed before or after conviction. the extradition is sought for violating a parole Authentication of the charge is a prerequi- held not well taken where relator was under site to determine whether the person sought sentence to the penitentiary for nonsupport to be extradited is a fugitive from justice, and of his wife and children, and the requisition he is none the less a fugitive whether he has leaves no doubt that it is based thereon. fled before or after conviction, the term "charg- 10. Extradition 39-Governor need not be ed with crime" being used in its broad sense in concerned as to fugitive's having fled while Const. U. S. art. 14, § 2, and U. S. Comp. St. at large on parole. § 10126.

WALKER, J. Relator, restrained of his liberty on a warrant of the Governor of this state issued upon a requisition of the GovernThe character of evidence adduced to auor of the state of Ohio, invokes habeas corthorize a Governor to grant a requisition is not pus to effect his release.

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a requisition. While his certification does not make the charge a crime, it authenticates that which does make it so, and for this purpose it is conclusive. Kurtz v. State, 22 Fla. 36, 1 Am. St. Rep. 173.

The purpose of the authentication of the charge is one of the prerequisites to determine whether the person sought to be extradited is a fugitive from justice, and he is none the less a fugitive whether he has fled before or after conviction. It is held in Hughes v. Pflanz, 138 Fed. 980, 71 C. C. A. 234, that the term "charged with crime" as used in the federal Constitution and statute (article 14, § 2, Const. U. S.; section 5278, 3 Fed. Stat. Ann. p. 285), is used in its broad sense.

Relator, on a charge of nonsupport of minor of papers incorporated in an application for children, was indicted, tried, convicted, and sentenced to imprisonment in the Ohio penitentiary for a term of not less than one year nor more than three years. In accordance with the laws of that state he was paroled. In violation of his conditional liberation from [2] While this ruling has express reference imprisonment, he left Ohio, or failed to re- to a charge by parity of reasoning, with like port his whereabouts to the board of clem-force it may be applied to a sentence or judg ency, and within four months thereafter ment rendered upon an information or an inhe was charged and convicted of grand lar- dictment which has not been satisfied. In re ceny in Jackson county, Mo., and sentenced Gertz, 21 Hawaii, 526. to two years' imprisonment in the penitentiary. This sentence expired July 9, 1921. Upon his release he was rearrested, and is held in custody by the agent of the state of Ohio, under the authority before stated. Upon being apprised of relator's violation of his parole, the board of prison managers of that state revoked same. At the time his whereabouts were unknown to the board. Learning subsequently that he was confined in the Missouri penitentiary, upon the expiration of his sentence the requisition referred to was applied for and granted to se"It would," says the court, "be a very narcure his return to the state of Ohio, to sat-row and technical construction to hold that aftisfy the judgment there pending against him. er the accusation, and before conviction, a per[1] I. It is contended that the sworn state- son could be extradited, while after convicment of the warden of the Ohio penitentiary tion, which establishes the charge conclusively, made to the Governor of that state, in re he could escape extradition. The object of the gard to the crime, conviction, and flight of re- provisions of the constitution and statute is to lator, and incorporated in the application for prevent the escape of persons charged with crime, whether convicted or unconvicted, and a requisition for his return, was not authen- to secure their return and punishment if guilty. ticated as required by the federal statutes. Taking the broad definition of 'charged with 3 Fed. Stat. Ann. § 905, p. 212, § 907, p. 221 crime' as including the responsibility for crime, (U. S. Comp. St. §§ 1519, 1521). This conten- the charge would not cease or be merged in tion is based on a misinterpretation of the the conviction, but would stand until the judg* * Any other construcmeaning and purpose of these statutes. They ment is satisfied. * refer, when properly construed, to the au-victs upon the charge under which they had tion would prevent the return of escaped conthentication for evidentiary purposes of leg been sentenced, and defeat in many instances islative and judicial records and proceedings the ends of justice." and of records kept in offices not pertaining to courts. Papers incorporated in the application at bar which came within the purview of these statutes were authenticated as therein required. The warden's statement belonged to none of these classes; and it was sufficiently authenticated by the certification of the Governor of Ohio as being "authentic and as having been duly authenticated in accordance with the laws of that state." Section 5278, p. 285, 3 Fed. Stat. Ann. (U. S. Comp. St. § 10126). The United States Supreme Court in construing section 5278, supra, has held that in the certification by the demanding Governor of the authenticity of the indictment or other formal charge that the person named is a fugitive from justice, embodies the essentials necessary to call for action on the part of the Governor of the [4] In addition, it was admitted by the reasylum state. Ex parte Reggel, 114 U. S. 642, lator not only in his pleadings, but in ap5 Sup. Ct. 1148, 29 L. Ed. 250. A conclusion plications made to the Ohio board of prison flowing from the rule as thus announced is managers, that, while under sentence for a that the demanding Governor is the only felony and on parole, he had violated the proper person to determine the authenticity | latter and had fled to this state. This was

[3] There was no dearth of evidence to sustain the finding of the Governor of this state that the relator was a fugitive from justice. One who is shown to have committed a crime in one state, and, when sought for to be subjected to criminal process, is found in another state, is, under the rulings of the Supreme Court of the United States, a fugitive from justice. Ex parte Reggel, 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. Ed. 250; Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544. This showing constituted a prima facie proof of the fact that he was a fugitive. In re Cook, 49 Fed. 833; Hyatt v. N. Y., 188 U. S. 691, 23 Sup. Ct. 456, 47 L. Ed. 657; Marbles v. Creecy, 215 U. S. 63, 30 Sup. Ct. 32, 54 L. Ed. 92.

(234 S.W.)

ample to satisfy the Governor of the fact parte McDaniel, 76 Tex. Cr. R. 184, 173 S. and to authorize the granting of the requisi- W. 1018, Ann. Cas. 1917B, 335. If it had been tion and the issuance of the warrant for the permissible in the absence of a showing that relator's arrest and delivery to the agent of relator's parole had not been revoked or was the state of Ohio. unauthorized-a question we do not decide

[5] We are not concerned with the charac--no such proof was offered by the relator, ter of the evidence that was adduced to au- and, having violated the conditions upon thorize the Governor to grant the requisition which his freedom from actual imprisonment -the character of same not having been pre- depended-about which there is no question scribed by the federal statutes. All that is he is in no better position than if he had required is that it be satisfactory to the escaped by force. Ex parte Carroll, supra; mind of the Governor. Munsey v. Clough, Drinkall v. Spiegel, 68 Conn. 441, 36 Atl. 830, 196 U. S. 364, 25 Sup. Ct. 282, 49 L. Ed. 515; 36 L. R. A. 489; Ex parte Williams, 10 Okl. Farrell v. Hawley, 78 Conn. 150, 61 Atl. 502, Cr. 436, 136 Pac. 1097, 51 L. R. A. (N. S.) 70 L. R. A. 686, 112 Am. St. Rep. 98, 3 Ann. 668. Cas. 874; Ex parte Hoffstot (C. C.) 180 Fed. 240, affirmed 218 U. S. 665, 31 Sup. Ct. 222, 54 L. Ed. 1201.

[6] Where, therefore, the Governor in his warrant, as at bar, certifies that the relator is a fugitive from justice a prima facie case arises, to overthrow which evidence must be adduced by the relator, when he makes the issue of his flight in a habeas corpus proceeding to secure his release. Ex parte Pelinski, 213 S. W. 809; In re Keller (D. C.) 36 Fed. 681; Eaton v. West Virginia, 91 Fed. 760, 34 C. C. A. 68; State v. Justus, 84 Minn. 237, 87 N. W. 770, 55 L. R. A. 325.

[7] II. It is further contended that there has been no showing that the relator was paroled, or that the same if granted, has been revoked. A sufficient answer to these contentions, if it were necessary to refute them by the facts, is that they are admitted by the relator, and this evidence was before the Governor of this state when he granted the requisition.

[9] The two last contentions under consideration are evidently made on the assumption that the relator's extradition is sought for violating a parole. While this may be regarded as a moving or immediate cause of his extradition, it is not the offense for which the state of Ohio demands his return. State v. Gertz, 21 Hawaii, 526. The repeated statement of the offense-i. e., the nonsupport of minors-the indictment and sentence, and the averments contained in the formal application of the Governor of Ohio for the requisition, leaves no doubt as to the grounds upon which relator's return is sought.

The right of the state of Ohio to the re

[10] A conviction of crime was a necessary condition precedent to the granting of a parole. The one measured the punishment, and the other was a manifest of the law's clemency in its enforcement. So long as the terms of the parole were complied with, the clemency continued operative, but it ceased when those terms were violated. An equally potent reason why these contentions are not entitled to serious consideration is that it devolved upon lator's return was therefore based upon the the relator to establish them. Pettibone v. unsatisfied judgment of conviction against Nichols, 203 U. S. 192, 27 Sup. Ct. 111, 51 him which entailed imprisonment. Upon a L. Ed. 148, 7 Ann. Cas. 1047. No counter-showing of these facts without more, the isvailing proof of any character was offered suance of the requisition would have been by him. The proof made to the Governor, authorized, and the incident that he was at therefore, became conclusive, or sufficiently large physically, instead of being in durance so to his mind to sustain his action. Ex when he forfeited his right to clemency, parte Roselle, 87 Tex. Cr. R. 470, 222 S. W. was a matter with which the Governor of this 248; Tiberg v. Warren, 192 Fed. 458, 112 C. state need not concern himself. If the parole C. A. 596. As was said in effect in Ex parte constituted a reason or ground why the reqCarroll, 86 Tex. Cr. R. 301, 217 S. W. 382, 8 uisition should not have been granted, eviA. L. R. 901, it was not incumbent on the dence in regard thereto should have been ofrespondent to prove the terms of the relator's fered by the relator. Commonwealth v. Sherparole. iff, 38 Pa. Co. Ct. 55. None was offered, and the original and the attested statements made a part of the application sustained the Governor's action. There is no merit in the application for habeas corpus, and the prisoner is remanded to the custody of the agent of the state of Ohio.

[8] The issuance of the writ by the Governor implies that it was rightfully done, and the implication obtains until removed by proof. Absent any proof of parole, the other documents accompanying the application were ample to sustain the granting of the requisition, and our interference therewith would be unwarranted. McNichols v. Pease, 207 U. S. 100, 28 Sup. Ct. 58, 52 L. Ed. 121; Ex ting.

It is so ordered.

All concur, except WOODSON, J., not sit