Hudgins v. Mooresville Consolidated School District , 312 Mo. 1 ( 1925 )

This is a suit brought by certain taxpayers of a consolidated school district, in Livingston County against the board of directors of said district and the other officials of same, and a bank named and the County Clerk of Livingston County. The purpose of this action is to have declared invalid the proceedings had to authorize the issue of certain bonds of said district and to restrain the defendants from the issuance and delivery of same. Upon a hearing before the Circuit Court of Livingston County at its September term, October 20, 1924, there was a finding and judgment for the defendants and the petition was dismissed. From this decree the plaintiffs have appealed.

The respondent school district was organized in the year 1916, and is designated in the record of the proceeding as "Consolidated School District No. 3, of Livingston County," or in local nomenclature as the "Mooresville District." A special election was called in the district for January 12, 1924, to submit a proposition for the issuance of bonds in the sum of $35,000 for the purpose of purchasing a site and erecting a school building thereon and furnishing and equipping the same. At the time the order was made by the board of directors for the publishing of the notices of the election to authorize this bond issue, the regularly elected clerk of the board was ill and unable to discharge his duties as such. Apprised of his condition the board made and entered of record an order declaratory of the inability of the clerk to act, and elected one H.S. Fahey to discharge the duties of such office until the regular clerk became able to perform the same. The notices of the election were posted and signed by H.S. Fahey, as clerk pro tem. No question is raised as to the sufficiency of the notices, either as to the time of their posting or the information they contained, other than the fact that they were made and signed by another than the regular clerk. The result of the election showed that more than two-thirds of the qualified voters of the district voted in favor of the proposed issuance of the bonds, and the proposition was, under the law, declared by the board to have been carried. On the 25th day of January, 1924, the board ordered the issuance of the bonds in the sum of $35,000, to consist of forty bonds, numbered from one to forty, in sums of five hundred dollars and one thousand dollars each, to be dated August 1, 1924, maturing semiannually and annually thereafter in twenty years and to bear interest at the rate of five and one-half per cent per annum, payable semiannually on the first days of February and August in each year. The interest was evidenced by coupons attached to each, and said bonds were sold to the defendant, the Fidelity National Bank Trust Company, of Kansas City, Missouri. The principal and interest on said bonds will in twenty years amount in the aggregate to the sum of fifty-nine thousand, two hundred and eighty-two dollars. To provide for the payment of the principal and interest a sinking fund was created by the board and a direct annual tax was levied upon the property of the district, and this action was certified to the County Clerk of Livingston County, one of the defendants, and a levy and extension on the taxable property of said district was made by said clerk as required by law. The assessed valuation of the taxable property of the district was in excess of one million dollars and it had no indebtedness.

The assignments of error are:

1. That the notices of the election were not signed and posted by the clerk as required by Section 11127, Revised Statutes 1919;

2. That the $35,000 bond issue was in excess of the limit allowed by Sections 11 and 12 of Articles 10 of the Constitution of this State;

3. That the furnishing of the building could not be included in the proposition to issue the bonds and violated Section 11 of Article 10 of the State Constitution.

These in their order.

1. Under a general classification, statutes are either mandatory or directory; a determination of their character in this respect is of first importance in their interpretation. If mandatory, in addition to requiring the doing of theNotice by things specified, they prescribe the result that willTemporary follow if they are not done; if directory, their termsClerk. are limited to what is required to be done. [State ex rel. McAllister v. Bird, 295 Mo. 344.] The statutes (Sec. 11240, R.S. 1919) authorizing the board of directors of a consolidated school district to elect a clerk or, as therein designated, a secretary, does no more in the creation of that position than to confer the power upon the board to elect; the only limitations contained in the section being in regard to the time of payment of the compensations of the secretary and treasurer. Nor does the law defining the duty and power of a board of directors of a common school in the election and control of a clerk or secretary, made applicable by reference (Sec. 11240) to consolidated schools, do more than to prescribe the duties of such clerk (Sec. 11215), and to confer power upon the board to remove him for dereliction of duty (Sec. 11217). It appears, therefore, that these statues, in so far as concerns the clerk or secretary of a board are clearly directory. The reasons for the absence from the statute of any provision which would authorize the classification of the sections referred to as mandatory becomes even more evident when we consider the character of the duties required to be performed by the clerk or secretary. They are purely clerical (Sec. 11215). While the authority of the board to remove him (Sec. 11217) is unqualified, it is solely a power of the board and bears no such relation to the statutes defining his powers and duties as to change their character. Furthermore, while the duty devolving upon the board, under Section 11127, Revised Statutes 1919, to publish notices of an election to authorize the issuance of bonds, is a prerequisite to the validity of the proceeding, the consequent duty of the clerk, as the instrumentality through which the board acts in the performance of this duty, is directory. This is shown by the fact that while the duty is enjoined upon him to sign and post the notices, there is no provision invalidating the election if the duty is performed by some one else, nor is any penalty prescribed if the duty is performed by another than the clerk. The designation, therefore, of the clerk to perform this duty was intended to promote the convenience of the board in the performance of its obligatory duty. The essence or purpose of the statute requiring the publication of notices is to inform the taxpayers of the district of the proposed action of the board. That the notices posted conformed to the requirements of the statute, so far as concerns the information contained therein, is not disputed. That the voters of the district obtained this information is evident from the large vote cast at the election, there being only sixty-five qualified voters in the district who did not vote at the election; and more than two-thirds of those who voted favored the proposed action of the board. There is no claim nor could any substantial claim be made that any one was misled or did not cast his vote with a full knowledge of the purpose of the election. The sole claim made is that the action of the board is designating another than the regularly elected clerk to sign and post the notices invalidated the entire proceeding. The sustaining of this claim when reduced, not necessarily to its last, but to any reasonable analysis, would in the absence of the regular clerk render any action of the board invalid. Such a construction is not entitled to serious consideration. Its statement, under the undisputed facts in this case, carries its own refutation on its face; and but serves to emphasize the result that would follow from a literal interpretation of statutes of this character, which, being remedial in their nature, are, in order to effectuate the purpose of their enactment, to be classified as directory and liberally construed. This construction is in harmony with what we said in State ex rel. McAllister v. Bird, 295 Mo. l.c. 352, "that school laws were designated as a workable method to be employed by plain, honest and worthy citizens, not especially learned in the law." Not alone in the Bird case, but in others construing the powers and duties of boards of consolidated and other school districts have we held that statutes in regard to same should be given a liberal construction. [State ex rel. Barrett v. Foxworthy, 301 Mo. 376; State ex inf. Wright v. Morgan, 268 Mo. 265; State ex rel. School Dist. v. Andrae, 216 Mo. l.c. 637; State ex rel. Fleener v. Cons. School Dist., 238 S.W. (Mo. App.) 819.]

We have not deemed it necessary to a proper disposition of the contention here made to discuss, in the light of the authorities, the right of the board in the event of the incapacity of the regular clerk to designate some one to discharge his duties. As we have indicated, to deprive the board of this power would result in defeating the purpose for which the consolidated district was formed, as it would render the erection of buildings and the furnishing of same impossible. Without buildings and their equipment the district, as an entity in our educational system, would be but a name. Under the recognized beneficent purpose of the public school system it was never intended by the Legislature that such a cheese paring construction of the statutes should be given recognition as to prevent the board from taking steps to effect the purpose for which the district was created.

The nature of the office of clerk and the character of the statutes creating his office and the importance of the duties of the board of directors, constrain us, without violating any rule of construction, to hold that the board was authorized, upon the inability of the clerk to perform his duties, to appoint another during such disability; and that the actions of the appointee, in conformity with the orders of the board are entitled to the same consideration in law and import a like validity to the notices of the election as if signed and posted by the regular clerk.

II. It is also appellant's contention that the bond issue of $35,000 ordered by the board of directors "for the purpose of purchasing a site, erecting a school building, and furnishing the same" is within the prohibition of Section 11, Article 10 of the State Constitution. The contention, more specifically stated, is, that under Section 11, Article 10, the schoolBonded district, out of its annual revenue, must provideIndebtedness: funds for furnishing the school house and cannotBuildings and issue bonds for that purpose; that the furnishingFurniture. of a school building is a school purpose as specified in said Section 11, Article 10.

The constitutional limitation in Section 11, as applied to a levy of taxes by school districts, has reference to the annual rate of such levy for school purposes for that year. By "school purposes" as the term is used in the Constitution, is meant such annual expenditures as are necessary to the conduct or maintenance of the school during the year. [C. A. Ry. Co. v. People, 163 Ill. l.c. 621.] The fixed rate in districts, as at bar, for school purposes, is forty cents on the hundred dollars' valuation of the property of the district. This rate may be increased for the same purpose, by a majority vote of the people, to sixty-five cents on the hundred dollars' valuation. These limitations, however, have no application to the creation of a debt for building purposes and the equipment of such buildings as may be erected. The Constitution, in effect, so declares in providing that "for the purpose of erecting public buildings . . . in school districts the rate of taxation herein limited may be increased when the rate of such increase and the purpose for which it is intended shall have been submitted to a vote of the people and two-thirds of the qualified voters of such . . . school district voting at such election shall vote therefor."

Appellant's contention in this behalf, if it does no more, furnishes an italicized illustration of an attempt to apply the maxim of qui haeret in litera," etc., in the construction of Section 11, in that it "sticks in the bark." It has often been held here and elsewhere, not only in the construction of statutes but Constitutions, that they should be so construed as to aid and effectuate the purpose of their adoption. This beneficent and wholesome rule would cease to be applicable if the section be construed as contended by appellants. It would authorize the erection of a building, but leave it empty as the House of Usher, and thus defeat the purpose of its erection. GOODE, J., in an illuminating opinion in State ex rel. Wahl v. Speer, 284 Mo. 45, held, in effect, that the language of the Constitution (Sec. 11, Art. 10), which authorizes an increase in the indebtedness of a county for the erection of a courthouse, means not only that the money so voted can be used to construct the courthouse but also to acquire a site for it. The rule of interpretation being that a power granted carries with it, incidentally or by implication, powers not expressed, but necessary to render effective the one expressed; and that a courthouse cannot be erected without a site. By parity of reasoning while a school building may be erected without equipment the latter is vitally necessary to its use and without the same its erection would be futile and the purpose of its erection a useless formality.

The cases of Strother v. Kansas City, 283 Mo. 283, Harrington v. Hopkins, 288 Mo. 1, and Jacobs v. Cauthorn, 293 Mo. 154, relied upon by appellants as sustaining their contention that the constitutional provision in Section 11, Article 10, does not authorize the construction we have given to it, will be found, upon an examination not parallel in their facts to those in the instant case. In the Strother case the power sought to be exercised was to impose a tax in excess of the constitutional limit to support the police department. In the Harrington case the increased levy was for the purpose of "repairing and furnishing" a building which had been erected and used. In the Jacobs case the increased levy was for a building and repair fund. In ruling that the levy was unauthorized it was expressly stated that if the increase had been for the erection of a building it would have been legitimate. The statement of the facts in these cases shows with sufficient clearness that they cannot, with a proper regard for the rules of construction, be held to sustain the appellant's contention.

Section 12 of Article 10 of the Constitution is also alleged to have been violated in the proceeding to increase the levy in the instant case. Section 12 provides not for annual rates for general purposes, but that an indebtedness may be incurred which, so far as applicable to school districts is concerned, isAnnual limited to five per cent on the value of the taxableLevy. property in the district. The assessed valuation of the district here involved being over a million dollars and having no other indebtedness, is far below the five per cent permitted by this section of the Constitution.

Finally, somewhat in recapitulation of what we we have said, if buildings had to be built out of the annual levy provided for in Section 11, and the district was required to operate on a cash basis, as contended by appellants, and could issue no bonds, create no indebtedness or borrow money, no buildings, whatever necessity for same might exist, could be erected. It is common knowledge that in the majority of school districts a levy of the maximum rate permitted by Section 11 is necessary for the general running and operating expenses of the schools. If therefore, the contentions of appellants in this regard were sustained, every bond issue of every school district in Missouri, issued in the past, would be invalid. We hold, therefore, that the authority granted by the Constitution, when its requirements are complied with, to increase a levy for the erection of a school building, carries with it as a necessary sequence to its erection the right to furnish or equip the same. The judgment of the trial court should, as a consequence of this conclusion, be affirmed and it is so ordered. All concur.