Chicago, Milwaukee, St. Paul & Pacific Railroad v. Fallon County ( 1933 )

The question for decision is whether the provision of section 7, Chapter 146, Laws of 1931, requiring that the special election called to determine whether the electors of a school district will sanction the making of an additional tax levy for school purposes must be held "before the first day of July," is mandatory, so that failure to hold the election prior to the first day of July renders the election illegal and void, or whether it is directory so that the observance of the provision is not necessary to the validity of the proceeding. We contend that it is directory merely.

The word "may," permissive in form, has been construed as imperative and mandatory in effect whenever that construction has been found necessary to carry out the legislative intent. On the other hand the words "shall" and "must," which are mandatory in form, have been held to be permissive and directory whenever such construction has been found necessary to carry out the legislative purpose. (59 C.J. 1079-1086; see, also, CusterCounty v. Yellowstone County, 6 Mont. 39, 9 P. 586; Stateex rel. Stiefel v. District Court, 37 Mont. 298, 96 P. 337;State ex rel. Helena Adjustment Co. v. District Court,92 Mont. 587, 19 P.2d 226.)

In the case of school elections there is more reason than in the ordinary case why a statute of this nature should be held to be directory rather than mandatory. In practically all of the cases where questions of this nature have been presented, the courts have taken the view that failure to hold the election at the time prescribed by statute is a mere irregularity and should be overlooked and disregarded. (56 C.J. 661, 667;Missouri P. Ry. Co. v. McIntosh, 92 Okla. 153, 218 P. 693; 9 R.C.L. 998, 999; State v. South Kingstown, 18 R.I. 258,27 A. 599, 22 L.R.A. 65; Board of Excise v. Board ofDirectors, 31 Okla. 553, 122 P. 520, 30 Ann. Cas. 1913E, 369;Rural High School Dist. v. Raub, 103 Kan. 757, 176 P. 110.) It is the contention of the appellant that the provision of the Budget Law fixing the time of the election is directory, and that an election held at any time satisfies the requirement. Our contention, on the other hand, is that the provision is mandatory. The general rule as to the time for holding elections is set forth in 20 C.J. 101 as follows: "Time and place are of the substance of every election, and as a rule it is essential to the validity of an election that it be held at the time and in the place provided by law, and if it is not so held the eligibility of the candidates voted for will not help the matter."

The rule in this state that where a right is statutory the statute must be strictly followed has been applied, with particular emphasis, with reference to statutes relating to the imposition of taxes. In the case of Hilburn v. St. Paul, M. M.R. Co., 23 Mont. 229, 58 P. 551, 811, the court says: "It is the rule, particularly in regard to special taxes, that the various steps provided by law to be taken in laying them must be observed."

Counsel rely upon the rule that in determining whether or not the provision of a statute is directory or mandatory the primary object is to ascertain the legislative intent from a consideration of its entire nature, its object and the consequences resulting. The early Montana case of Custer County v. Yellowstone County, 6 Mont. 39, 9 P. 586, is relied upon. This case involved a statute providing for the adjustment of the indebtedness between the counties and fixing the time when the commissioners should meet for that purpose. The court in the quotation used by the appellant, quite correctly points out that time was not of the essence of the apportionment, and that the rights of the parties were in no way prejudiced by the meeting of the commissioners at some other time. In fact the court holds that it was not necessary that a meeting at any time should appear in order to justify the maintenance of the action. The same situation exists in the other Montana cases referred to in the appellant's brief.

The case principally relied upon is Board of Excise v.Board of Directors, 31 Okla. 553, 122 P. 520, Ann. Cas. 1913E, 369. The case did not in any way involve the construction of a statute designed to carry out a definite budget plan, one of the essentials of which is the determination at definite times of the amounts, both of receipts and expenditures. The other Oklahoma case cited, Missouri P. Ry. Co. v. McIntosh, 92 Okla. 153,218 P. 693, is even less in point. An election was called for August 18 to vote upon a special school tax levy, but notice of the election fixed the date on August 15 and it was held on that date, but, it appearing that ample notice was given to all eligible electors, the court held that there had been substantial compliance with the statute.

The only other case cited is Rural High School Dist. v.Raub, 103 Kan. 757, 176 P. 110. In that case no question of election was involved. The statute required a school board to make the necessary levy for taxes and certify the same to the county commissioners before July 25, whereupon the commissioners should make the levy on or before the first Monday in August. In this particular case the district involved was not organized until August 5 and the levy made on the 14th of September was held valid. Not only was there no question of the validity of an election, but no budget law was involved.

In the first Oklahoma case above cited, in Ann. Cas. 1913E, page 369, is a note, where it is stated that the general rule is that a statutory provision as to the time for holding an election is mandatory. Many cases are cited where the provision in question required that the election be held within a certain period, as is the case here, the provision being that it must be held prior to the first day of July. While there are a few cases cited holding that such a provision is directory only, they are all cases in which the time element is clearly not an essential element, as is made apparent from the reading of the statute involved. Later cases likewise announcing the rule that such provisions are mandatory are: Gray v. Ingleside Ind.School Dist., (Tex.Civ.App.) 220 S.W. 350; Simpson v.Teftler, 176 Ark. 1093, 5 S.W.2d 350; Crye v. Pearce,175 Ga. 85, 165 S.E. 121. The question has arisen in a number of school district cases where special levies were involved. The following are typical examples: People v. Wabash Ry.,326 Ill. 566, 158 N.E. 211; Howard v. Jensen, 117 Neb. 102,219 N.W. 811; Smith v. Canyon County, 39 Idaho, 222,226 P. 1070. In the Idaho case the court quotes with approval from an earlier decision from that state the following: "The power and authority to levy and collect taxes is wholly statutory, and where the purpose for which and the circumstances under which a special tax may be levied is expressly defined and limited by statute, the prerequisite circumstances must exist in order to give legal effect to a pretended tax levy for such purpose." In that case, as in this, counsel on the other side pointed out the hardship that might result from such a holding, but the court said: "The resulting situation is an unfortunate one. It is due, however, to the provisions of the statutes. This court would not be justified in refusing to give effect to the plain provisions of the statutes merely because the result is undesirable." This action was brought to recover taxes paid under protest. The tax involved is a special school tax levy of six mills authorized by the vote of the qualified electors of school district No. 12 of Fallon county at an election held on July 20, 1931. The attack made upon the tax is that it was and is void and illegal because in violation of section 7, Chapter 146, Laws 1931, in that the election was held on July 20, whereas section 7 of the Act, in providing for the election, contains the provision, "And such election must be held before the 1st day of July." The complaint alleges sufficient facts to present the question of the validity of the election and the tax levied pursuant thereto.

The answer of defendant denies that either the election or the tax is void or illegal, and by way of affirmative defense alleges that during the month of June, 1931, the board of trustees of the school district prepared and adopted a preliminary budget for the ensuing school year pursuant to Chapter 146, supra; that it determined that the amount which would be received from the ten-mill levy and all other sources would be inadequate to meet the expenses provided for, and determined that an additional six-mill levy was required; that an election was called and held on July 1, which resulted in the defeat of the proposal for a six-mill additional levy by a vote of 57 to 51; that prior to July 1 all the teachers, principals and janitors had been employed for the district for the ensuing year; that under section 13 of Chapter 146 no change could be made in any item of the preliminary budget which would reduce or affect the salaries or wages of the teachers, principals or janitors; that the combined salaries of those thus employed, without considering other necessary expense of conducting school, exceeded the amount which would be received from the district ten-mill levy and from all other sources during the school year; that unless a special levy be made all items in the budget, save those for salaries of teachers, principals and janitors, would have to be stricken therefrom and no money expended therefor, and that it was essential and for the best interests of the district that a special levy be made; that the board of trustees called an election on July 20, 1931, for the purpose of resubmitting to the qualified electors the question of whether an additional six-mill levy should be made; that the election was regularly held after due notice, and none but authorized and legal voters were permitted to vote, and that the proposition then carried by a vote of 69 to 30. It is alleged that the budget law, so far as it provides for the time of holding the election is directory and not mandatory, and that the election, and the levy made pursuant thereto, are valid.

Plaintiff demurred generally to the answer as a whole and to the affirmative defense. The demurrer was sustained. Defendant declined to plead further, and judgment was entered in favor of plaintiff. Defendant has appealed from the judgment.

The only question presented by the appeal is whether the language in section 7, Chapter 146, supra, to the effect that "such election must be held before the 1st day of July," is mandatory or merely directory. If it is mandatory, then the judgment must be sustained. If it is directory merely, the judgment cannot stand.

In considering whether the quoted language is mandatory or[1] directory, we point out that the attack here made comes after the election, and not before. That this is an important fact is shown by the rule adopted by this court, from the case ofJones v. State ex rel. Wilson, 153 Ind. 440, 55 N.E. 229,233, in the case of Goodell v. Judith Basin County, 70 Mont. 222,224 P. 1110, and reaffirmed in Weber v. City ofHelena, 89 Mont. 109, 297 P. 455, as follows: "All provisions of the election law are mandatory, if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void."

While there is no absolute test by which to distinguish[2-4] mandatory from director provisions of a statute, language, however mandatory in form, may be deemed directory whenever "the legislative intent does not require a mandatory construction." (59 C.J. 1073.) "Whether a statute is mandatory or directory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form. Accordingly, when a particular provision of a statute relates to some immaterial matter, as to which compliance with the statute is a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly and prompt conduct of business, it is generally regarded as directory, unless followed by words of absolute prohibition; and the same is true where no substantial rights depend on the statute, no injury can result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than that prescribed, with substantially the same results." (59 C.J. 1074.)

In 9 R.C.L. 998, after stating that a statute fixing the time of an election is ordinarily regarded as mandatory, appears this statement: "However, this rule is not inflexible and a statutory provision as to the time for holding an election will be treated as directory where it appears from its general scope and policy that such is the legislative intent. Moreover, where an election clearly expresses the will of the voters, the courts are disinclined to set it aside because of a departure from a statutory provision as to the time of holding it even if this be regarded as mandatory; and so if it does not appear that the holding of an election on a day different from the day fixed by law was induced by any corrupt or fraudulent motives, that it was the result purely of a mistake and no one was prevented from voting thereby, the court may in the exercise of its discretion refuse to consider an attack upon its validity. * * * And so where the authorized officials have failed to call an election upon the date provided for in an Act of legislature, and there is no particular reason except that it would conduce to orderly procedure why the election for the purpose specified should not be held on one day as well as another, the fixing of the time may be considered as directory and not mandatory. Similarly, a statute requiring an election to be held within a prescribed time, for example after the presentation of a petition, should be considered as intended to insure the timely exercise of the authority to call the election, and not as a mandatory provision."

On the authority of the foregoing principles the Court of Appeals of Kentucky, in Davidson v. Board of Education of Cityof Pikeville, 225 Ky. 165, 7 S.W.2d 1056, held that under a statute making it the duty of the city council to call an election "not less than fifteen nor more than thirty days" from the time a certificate is filed with it, an election called on the thirty-third day after the filing of the certificate was a substantial compliance with the statute, and that the election was valid.

"The purpose of a school tax election being to get a full, free and fair expression of the voters, and such elections being unattended with the formality of other elections, the statutes providing for such elections should be interpreted with liberality, in view of the great public purposes which they accomplish, and mere irregularities or informalities in an election, which do not affect the fairness of the election or the result, should be overlooked and disregarded, and should not be held to render invalid a levy otherwise valid." (56 C.J. 667. Compare, also, Hudgins v. Mooresville Consol. SchoolDistrict, 312 Mo. 1, 278 S.W. 769.)

"Notwithstanding the time for holding the election is fixed by the statute, an election held on another day, of which ample notice was given, and at which ample opportunity was offered all the voters to vote, is not void where no provision is contained in the statute to such effect." (56 C.J. 661.)

In the case of Board of Excise v. Board of Directors ofSchool District No. 27, 31 Okla. 553, 122 P. 520, 30 Ann. Cas. 1913E, 369, the court had before it a statute providing that elections upon special levies for school purposes shall be held on "the second Tuesday after the first Monday in August." The excise board refused to call an election because the time had passed within which it might do so under the statute before the board of equalization made its return from which it could be determined that an election was necessary. The proceeding was by mandamus to compel the calling of the election long after the statutory time had passed. While the writ was denied because of the delay which would result in levying the tax, the court said: "As we view the question, after an exhaustive review of the authorities, the particular date, as fixed in the statute, is not of the essence of this law, and there is no reason why the same should be held to be mandatory, and not directory. The general rule applicable for the determination of this question is set forth in the case of Stateex rel. Cothren v. Lean, 9 Wis. 279, 292, wherein the court says: ``Where there is no substantial reason why the thing to be done might not as well be done after the time prescribed as before — no presumption that by allowing it to be so done it may work an injury or wrong — nothing in the Act itself, or in other acts relating to the same subject-matter indicating that the legislature did not intend that it should rather be done after the time prescribed than not to be done at all, there the courts assume that the intent was that, if not done within the time prescribed, it might be done afterwards.' In our judgment, there is no substantial reason to hold that, if the election were not called at the time fixed by the statute, the legislature intended that it should not be called at all, especially so long as an opportunity to call the same might occur in time, so that the tax might be extended and collected without disorganizing the system. There is no particular reason, except that it would probably conduce to orderly procedure, why the election for this particular purpose might not be called on one day as well as another. It is, as denominated in the statute, a special election, and under the conditions as shown was one that might or might not occur in any year, owing to the condition of the assessment and levy made by the particular municipality and the judgment and discretion of the excise board. Numerous authorities hold that statutes similar to this are directory in their operation, and have allowed mandamus to require the calling of elections after the time fixed by statute had passed, on the theory that the law was directory, not mandatory, and that the holding of the election, and not its date, was of the substance and paramount in its importance." To the same general effect isMissouri P. R. Co. v. McIntosh, 92 Okla. 153, 218 P. 693. (And compare State v. Smith, 22 Minn. 223; State v. Young, 6 S.D. 406, 61 N.W. 165; Rex v. Latherby, 17 Ont. L. Rep. 304, 12 Ont. W. Rep. 664.)

The only purpose in providing that the election must be held before July 1 was to have the question determined in time to prepare the budget and make the levy. Under the Budget Act the board of school budget supervisors does not meet to consider the budgets of the various school districts until the fourth Monday in July, which, in 1931, was on July 27, or one week later than the election. Thus it will be seen that the lateness of the election in no way interfered with the operations of that board in making revisions in the budget, nor did it interfere with the officers in making the tax levy at the proper time.

It is true that section 8 of the Budget Act requires the county superintendent of schools to publish a notice between the tenth and twentieth days of July, stating that the preliminary budgets are on file and open to inspection, and that the budget supervisors will meet at the office of the county superintendent on the fourth Monday in July for the purpose of considering the final budget. It is contended that, where, as here, the election is not held until July 20, the taxpayer has not sufficient information from the preliminary budget on file as early as July 10 to determine whether to support or oppose the proposed budgets. It should be noted that this plaintiff makes no claim that it was not afforded full opportunity to present its views of the budget to the budget supervisors. So far as the record discloses, no other taxpayer is making any complaint. There is no room in this case for an argument on behalf of taxpayers without notice of the election. There were only nine votes less at the election of July 20 than at the election of July 1. No suggestion is here made that any taxpayer has been prejudiced by want of notice of the election. Also, the preliminary budget which is on file on July 10 simply contains a list of proposed expenditures, together with the county superintendent's estimate of revenues for the school year from (1) state apportionment, (2) county apportionment, six to eight mill levy general school fund, (3) common school equalization fund, (4) all other sources except tax levies, and (5) ten-mill special district levy. (Section 4.) It makes no reference to a special tax levy other than the ten-mill levy, and the taxpayer would acquire no information with relation to a special tax levy by its examination in any case. So far as the preliminary and final budget is concerned, the taxpayer's interest is in watching the expenditures rather than concerning himself with the source of income other than those above specified. If the proposed expenditures exceed the anticipated income from the five sources above, the taxpayer must know that, in order to make the expenditures contemplated, a special levy must follow, and hence he is not misled so far as his right to attack the budget is concerned, by delay in holding the election for the special levy.

Moreover, the record here abounds with evidence that the taxpayers in this case were not in anywise deceived or misled as to information contained in the preliminary budget on file. That budget must have shown that the expenditures exceeded anticipated revenues from sources other than a special levy, for an election had already been called for July 1 to authorize a special levy. Between July 1 and the time of filing the preliminary budget on July 10 no one is authorized to make any changes therein, and hence it must have shown on July 10 exactly what it revealed on July 1, when the first election was held.

The Act in question bears evidence that the intention of the legislature was not to limit the power to hold an election at a later date than that specified, but to insure its timely exercise. (State v. Town Council of South Kingstown,18 R.I. 258, 27 A. 599, 22 L.R.A. 65; Robinson v. McCown,104 S.C. 285, 88 S.E. 807.)

This court has had occasion to hold that certain statutes, mandatory in form, are directory merely. Thus in Custer County v. Yellowstone County, 6 Mont. 39, 9 P. 586, 587, involving the adjustment of indebtedness between an old and a newly created county, the statute provided that the county commissioners of the two counties involved "shall meet at the court-house in the town of Miles on the first Monday of March, A.D. 1883, to adjust the indebtedness between said counties." Having failed to meet at the time specified, the action was instituted. It was there urged that the statute was mandatory, but the court said: "This provision was not mandatory. By the failure to meet, the rights of the parties interested were not prejudiced. Those directions which are not of the essence of the thing to be done, but which are given mainly with a view to the orderly and prompt conduct of the business, and by a failure to do which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the Act is performed, but not in the time or in the precise mode indicated, it may still be sufficient if that which is done accomplishes the substantial purpose of the statute." (Compare, also, State exrel. Helena Adjustment Co. v. District Court, 92 Mont. 587,19 P.2d 226.)

We hold that the Act, so far as it fixes the time for the election, is directory merely. It follows that the court erred in sustaining the demurrer to the answer.

The judgment is reversed and the cause remanded, with directions to set aside the order sustaining the demurrer and to enter an order overruling it.

ASSOCIATE JUSTICES MATTHEWS, STEWART and ANDERSON concur.