State Ex Inf. North Todd Gentry v. Lamar , 316 Mo. 721 ( 1927 )

Information in quo warranto filed in this court to oust respondents from office as directors of alleged Consolidated School District, designated as "Consolidated School District No. 1, of Texas County, Missouri." Respondents filed return.

The case is submitted on relator's motion for judgment on the pleadings. The validity of the organization of the district is questioned, and the facts determined from the pleadings are as follows:

The resident citizens of the community in which the city of Houston, in the County of Texas, is located, under authority of Section 11259, Revised Statutes 1919, as amended, Laws 1921, p. 654, filed on the 15th day of March, 1926, with the County Superintendent of Schools for said county, a petition, signed by at least twenty-five qualified voters of said community, praying for the formation of a consolidated school district in said community. The County Superintendent, on the 15th day of April, 1926, called a special meeting of all qualified voters of said community, to be held in the city of Houston, on the 30th day of April, 1926, at two o'clock P.M., to consider the question of consolidation. The special meeting was held at said time and place, the qualified voters of the proposed district voted on the question of consolidation, and the election resulted in the casting of 179 ballots for consolidation and the casting of 141 against consolidation. The respondents were duly elected directors of said district, possess the necessary qualifications, and within four days after their election duly qualified and organized by electing officers. All of the requirements of the statute for holding the election and organizing the district were literally complied with by the County Superintendent, except he did not post the notices and plats within the proposed district calling for a special meeting of all the qualified voters of the proposed district within thirty days after the filing of the petition. However, it is admitted that the voters of the proposed district were not misled or deceived on account of the failure of the County Superintendent to post the notices and plats within thirty days. And it is further admitted that the vote cast at said special meeting was much larger than the combined vote cast at the annual school meeting of all the territory included in the boundaries of said proposed district. The proposed district contained fifty square miles in area, but did not have an enumeration of two hundred children of school age, and did not include within its territory any town or city district at the time of its organization which had by the last enumeration five hundred children of school age.

By the pleadings and the briefs our attention is directed to two questions for solution.

I. The statute directs the County Superintendent to call the election within thirty days after the filing of the petition. [Sec. 11259, R.S. 1919; as amended, Laws 1921, p. 654.] He made the call on the 15th day of April. To comply with the statute he should have made the call not later than the 14th day of April, 1926. Relator contends this delinquencyDirectory Statute. invalidates the election. Was this requirement mandatory or directory? In this case it is admitted the voters were given the fifteen days' notice required by the statute, the notices and plats posted were sufficient as to number, form and substance, the election was regular in all respects; and by the number of votes cast we know the election resulted in a full expression of the voters of the proposed district on the question submitted. This was all the Legislature intended to be accomplished by the act. Having thus concluded, we have answered the above question. The requirement is directory. It is made "with a view merely to the proper, orderly and prompt conduct of the business," and the Superintendent should have made the call within the thirty days, but his failure to do so does not, on this record, invalidate the election.

In an early case and on a similar question, we ruled as follows:

"It is a rule of construction, that a statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others, is directory merely, unless the nature of the act to be performed, or the phraseology of the statute is such, that the designation of time must be considered as a limitation of the power of the officer. [People v. Allen, 6 Wend.; Jackson v. Hooker, 5 Cowen, 269, 2 Mass. 230.] There was nothing in the nature of the power of appointment showing that it might not be as effectually exercised after the first term of the court as before. There is no prohibition that it shall not be exercised afterwards. It would be strange if a statute specifying an early day at which an act must be done with a view to its speedy execution, should be [so] construed that the act could not be done at all after the day when the necessity for its performance is as great, if not greater, afterwards than before. If the court had failed to make the appointment in the term time, the clerk could have made it; but clearly when the court convened again, the power of appointment in the clerk was suspended." [St. Louis County Court v. Sparks, 10 Mo. l.c. 122.]

We have uniformly adhered to this rule. [Sanders v. Lacks,142 Mo. 263; Bowers v. Smith, 111 Mo. l.c. 61; State ex rel. v. Hackman, 273 Mo. l.c. 670; State ex inf. v. Bird, 295 Mo. 351.]

Relator directs our attention to the case of School District v. Wallace, 75 Mo. App. 317. The facts in that case are as follows: The qualified voters of two districts voted at the annual meeting (as then required by law) to consolidate. Having so determined, the statute provided that the voters therein should, within fifteen days after the annual meeting, assemble in pursuance of notice therein required; and when so assembled, it was declared they should be invested with the same powers as prescribed for the first annual district-meeting held under the provisions of the law. It was held that the provision requiring the voters to meet within fifteen days after the annual meeting and organize the district was mandatory for the reason that the organization within this time was necessary for the district to have the benefit of other sections of the statute necessary to its existence as a school district. No such question is involved in the case at bar. Other cases cited by relator only go to the extent of holding that the notices must be sufficient as to substance, and must be posted the length of time designated for the giving of notice to the voters of the time, place and purpose of holding the election. This contention is overruled.

II. The next question involves the construction of Section 11258, Laws 1925, p. 331, which section is as follows:

"No consolidated district shall be formed under the provisions of this article unless it contains an area of fifty square miles or has an enumeration of at least two hundred children of school age. Provided, that no district formed under the provisions of this act shall include within its territory any town or city district that at the time of the formation of said consolidated district has by the last enumeration five hundred children of school age."

Relator contends that the Legislature inadvertently used the word "or" between the word "miles" and the word "has" in the above section. That is to say, the Legislature intended to use either the word and or nor between said words, and thereby provide that a consolidated district could not be formed unless it contained both the area of fifty square miles and an enumeration of two hundred children of school age. We find this requirement to have been written in the alternative from the beginning. [Sec. 2, Laws 1913, p. 722.] The Act of 1913 was construed by this court in an opinion by RAILEY, C., in the case of State ex inf. v. Clardy, 267 Mo. 371. In that case the evidence showed sufficient area, but did not show that the territory contained two hundred children of school age. The requirement was there treated as being in the alternative, and the question was called to the attention of the court by BROWN, C., in his dissenting opinion, in which he held to the view that Section 2, Laws 1913, p. 772, required an enumeration of two hundred children as a condition of organization. The question was again before this court in the case of State ex rel. v. Long, 204 S.W. l.c. 917, and it was ruled that this requirement was in the alternative; that if the proposed district had either the area or the number of children required, it was sufficient to authorize the consolidation. The Clardy case was decided in 1915, the Long case in 1918; and in 1925 the Legislature repealed Section 2, Laws 1913, p. 722, then Section 11258, Revised Statutes 1919, and enacted a new section — Section 11258, Laws 1925, p. 331 — in which an area of fifty square miles was required instead of twelve square miles. In this amended section the requirement as to area and children was written in the alternative. The Legislature knew this court had from the beginning held said requirement to be in the alternative, and with this knowledge it used the word "or" in the amended section as it used the word in the Act of 1913. From this we conclude the Legislature intended this requirement to be in the alternative. Relator insists that the general policy of the Legislature with reference to the organization of school districts of all classes is and always has been to fix a minimum requirement both as to enumeration and as to area or assessed valuation. We are cited to numerous sections of the statute dealing with the organization of school districts. We have held that the sections cited do not apply to a consolidation under the Act of 1913 and its amendments. [State ex inf. Bothwell v. Schuster, 285 Mo. 399; State ex inf. v. Scott,264 S.W. 369.] This contention is overruled.

It follows the writ should be denied and this proceeding should be dismissed. It is so ordered. All concur, except Graves, J., absent.