State Ex Rel. Muns v. Hackmann , 283 Mo. 469 ( 1920 )

Pursuant to a special election held February 16, 1920, the directors of School District No. 39 of Montgomery County (Montgomery City School District) issued bonds to secure funds to be used in erecting a school building. The State Auditor has refused to register these bonds (Art. 8, chap. 15, R.S. 1909), and this is a proceeding by mandamus to compel him to do so.

Respondent has waived the issuance of the alternative writ and demurred to the petition therefor. This puts the cause at issue (State ex rel. v. Gordon, 238 Mo. 168) and the allegations demurred to stand admitted. [State ex rel. v. Reynolds,256 Mo. 710.] In addition, the parties have filed an agreed statement of facts.

The school district in question is a town school district. The notice of election stated that the purpose was "to authorize the school board to issue bonds to the amount of $28,000 for the erection of a school building." The notice, among other things, fixed the voting places and, following the order of the board, informed the voters that the polls would open "at two o'clock p.m. and remain open until 6 o'clock p.m." The election was held on the date named in the notice and the polls were opened and closed at the hours fixed therein. Three hundred and twenty-three votes were cast; two hundred and thirty-seven for the loan, and eighty-six against the loan. The bonds issued recited that they were issued for the purpose of erecting a high school building, and a contract for such a building was entered into by relators.

Respondent raises two questions: (1) that since the notice of election "stated that same was to be held for the purpose of voting bonds ``for the erection of a school building,' said board had no authority to issue bonds or expend money derived from the sale thereof, for the erection of a high school;'" and (2) that the election was void because the "polls were not kept open from seven o'clock a.m. to six o'clock p.m.," but were "kept open only from two o'clock p.m. until six o'clock p.m. on the day on which the election was held."

I. It is conceded that the authority of relators to hold the election in question is found in Section 10777, Revised Statutes 1909. The amendment of 1911 (Laws of 1911, pp. 394, 395) does not affect any question in this case. Section 10777, as amended, provides that "for the purpose of purchasing schoolBuilding. house sites, erecting school houses, library buildingsSchool and furnishing the same, and building additions to or repairing old buildings, the board of directors shall be authorized to borrow money, and issue bonds for the payment thereof, in the manner herein provided . . . Notice of said election shall be given at least fifteen days before the same shall be held, by at least five written or printed notices, posted in five public places in the school district where said election shall be held, and the amount of the loan required, and for what purposes; it shall be the duty of the clerk to sign and post said notices. The qualified voters at said election shall vote by ballot. Those voting in favor of the loan shall have written or printed on their tickets, ``For the loan;' those voting against the loan, the words, ``Against the loan;' and if two-thirds of the votes cast shall be ``for the loan' the district board shall be vested with the power to borrow money, in the name of the district, to the amount and for the purpose specified in the notice aforesaid, subject to the restrictions of the following section. . . . ." The remainder of the section and the succeeding section are not relevant to the question in this case.

The authority of the district to vote bonds for school buildings is found in this section. The statute does not in terms distinguish between grade school buildings and high school buildings. The power given, so far as this case is concerned, is one to call an election to vote bonds for "erecting school houses." Even the section which authorizes the board of a town district to establish schools does not use the term high schools, but empowers such board to establish schools "in which studies not enumerated in Section 10941 may be pursued." It is clear the word "school houses" as it is used in Section 10777 includes buildings for use for any and all schools the board may or must establish, both grade schools and those "of a higher grade" than contemplated by Section 10941, i.e. such as are usually referred to as high schools. [Roach v. The Board, 77 Mo. 484; Carling v. Jersey City, 71 N.J.L. l.c. 158; American Asylum v. Phoenix Bank,4 Conn. 172; Board of Education v. Hyatt, 152 Calif. l.c. 519.] All these schools are under the authority and control of the district board. The whole form a system which constitutes the common or public school or schools of the district. In Board of Education v. Welsh, 51 Kan. l.c. 806, 807, the Supreme Court of Kansas said:

"Under our liberal and beneficent system of common schools, we perceive no good reason why the higher branches prescribed by the board of education of the City of Topeka may not in its discretion be taught in the public schools, and no good reason why scholars desiring to be instructed in such branches may not be provided with a separate school building, properly furnished, whether it be called a public school, a graded school or a high school. The Legislature, within the terms of the constitution, has established a system of common schools. High schools are referred to as a part of the system. Under the provisions of Chapter 196, Laws 1891, if certain preliminary proceedings are taken by boards of education, the qualified electors may vote bonds for the purchase of school sites and the construction of school buildings. Whether the school buildings proposed to be constructed and voted for shall be called a graded school or a high school is immaterial, if, under the control of the board of education, it is carried on in accordance with the statute concerning common schools."

The purpose of the election involved here was to secure authority to issue bonds to obtain funds to erect a building designed, necessarily, to house some part of the schools of the district. The statutes do not, in terms, distinguish, in this connection between the schools of lower and higher grade with respect to elections for voting bonds for school houses. One is as much a school as the other, and a building for one is as much a school house as is a building for the other. The designation of the building as a high school building in the contract and in the bonds is not of such consequence as to afford just cause for respondent's refusal to register the bonds. The cases cited by respondent (Martin v. Bennett, 139 Mo. App. 237; Horsefall v. School District, 143 Mo. App. 541) decide nothing to the contrary.

II. It is insisted the polls should have been opened at seven o'clock a.m. and kept open until six o'clock p.m. instead of from two o'clock p.m. to six o'clock p.m. They were opened and closed at the hour fixed by the orderHours of of the board and the notice of election. The positionElection. of respondent is that the board had no power to fix the hours it did and that, therefore, the election is void. It is stipulated that the number of qualified voters in the district was approximately four hundred; that only once in seven years had the number of votes cast exceeded the number cast in the election in question; that there was no congestion at the polls and that "the officers of said election could easily have accommodated twice the number of voters that actually voted." There is no contention that any voter was prevented from voting by reason of the hours fixed by the board or that the result was in any way affected. The statute (Sec. 10777, R.S. 1909) fixes no hours for opening and closing the polls at bond elections. Election by ballot is provided and the form of the ballot is prescribed. It is argued that since the hours are not prescribed, "then such election shall be conducted in the manner prescribed by law for other elections by the same body." [State ex rel. v. Hackmann, 218 S.W. l.c. 324.] If this principle be conceded to be applicable, the "other elections" provided by the statute become pertinent. At the annual election in town districts (Sec. 10879, R.S. 1909) it is provided that the polls shall be open from seven o'clock a.m. to six o'clock p.m. If this were the only provision for the elections in such district, the question presented would be easily solved, under the concession already made. It is not the only one. In Section 10870, Revised Statutes 1909, it is enacted that the election for disorganizing a town district shall be held at a meeting, after notice, and if two-thirds of the resident voters and taxpayers vote at such meeting for dissolution, the district stands dissolved. In the same article (Sec. 10865, R.S. 1909) the method of organizing city, town and consolidated school districts is provided. The voting is by ballot and it to be done at a meeting held for that purpose, pursuant to notice. Respondent does not point out any reason for selecting one rather than another of these methods under the rule he invokes.

By Section 10920, Revised Statutes 1909, the State Superintendent of Schools is required to cause to be distributed to school officers and authorities, copies of the school laws, separately bound, "with instructions for carrying into execution of such laws." It is stipulated that in his instructions for carrying on an election under Section 10877, the State Superintendent had long before furnished a form of notice of election which fixed the opening hour at two o'clock p.m. This "instruction" relators followed in calling the election here involved, as many school boards, doubtless, had previously followed it in calling like elections. Of course, the State Superintendent cannot amend a statute, but an administrative construction of a doubtful statutory provision is entitled to weight, particularly after it has been acquiesced in by the Legislature for years and securities issued and bought and sold in dependence upon it. There is a reason for the provision that at annual elections the polls shall be kept open from seven a.m. to six p.m., which reason does not apply to bond elections called for special dates; i.e., such elections are held in conjunction with municipal elections at which the time during which the polls shall be open is fixed by other statutes. In the circumstances, there is no sound reason which compels a holding that the established practice which has long prevailed in pursuance of instructions authorized by the Legislature so conflicts with the law that the act of the relators in following it renders the election in this case void. The alternative writ is made peremptory. All concur.