Butler v. Board of Education of Consolidated School Dist. No. 1 of Audrain County
| Decision Date | 11 February 1929 |
| Docket Number | 29145 |
| Citation | 16 S.W.2d 44 |
| Parties | BUTLER et al. v. BOARD OF EDUCATION OF CONSOLIDATED SCHOOL DIST. NO. 1 OF AUDRAIN COUNTY et al |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled March 27, 1929.
Clarence A. Barnes, of Mexico, Mo., for appellants.
Rodgers & Buffington, of Mexico, Mo., for respondents.
In Banc.
GANTT J. Injunction.
At an election held in consolidated school district No. 1 of Audrain county, Mo., on March 23, 1928, a proposition was submitted to authorize the board of education to issue and sell bonds in the sum of $ 40,000 for the purpose of purchasing a school site erecting thereon a school building and furnishing the same. The proposition carried. Plaintiffs seek to prevent the issuance, registration, and sale of the bonds. The petition was dismissed, and plaintiffs appealed.
Either the amount in dispute [Aufderheide et al. v. Polar Wave Ice Co. (Mo. Sup.) 4 S.W.2d 776, loc. cit. 778], or a constitutional question, or a state officer (the state auditor) as a party litigant (section 12, art. 6, Const.) gives this court appellate jurisdiction.
Plaintiffs in their petition challenge the validity of the election on numerous grounds. The principal complaint is that the maximum rate of interest on the bonds was not stated in the notices of election. This contention rests on an act of the 1921 regular session of the Legislature (Laws of 1921, Regular Session, p. 169) as amended at the Extra Session of said 1921 Legislature (Laws of 1921, Extra Session, p. 38). The act, among other things, provided as follows:
'That in every election hereafter held for the purpose of authorizing an issue of bonds the maximum rate of interest such bonds are to bear shall be stated in the notice of such election.'
The state auditor, by answer, admitted his duty to register school bonds, alleged he had no knowledge or information regarding the allegations of the petition, and prayed for costs.
The other defendants, by amended answer, denied the allegations of the petition, and alleged that part of the law providing for a statement of the maximum rate of interest in the notices of election to be unconstitutional, in that it contravenes section 28, art. 4, of the Constitution.
The reply was a general denial, with an allegation that said proviso was not unconstitutional. The trial court held said proviso unconstitutional.
In State ex rel. v. Hackmann, 292 Mo. 27, 237 S.W. 742, we held this proviso in the original act to be unconstitutional for the reason the provision is not included in the title of the act. Section 28, art. 4, Const. The act was amended under the identical title at the extra session by adding another proviso which excluded school districts in cities of 75,000 to 500,000 population from the provisions of the act.
Plaintiffs insist the amendment calls for a reconsideration of the question. If the proviso as originally enacted contravened the Constitution, it follows the act as amended contravenes the Constitution. As stated, the titles to the acts are identical.
But plaintiffs contend the defendants waived the unconstitutionality of the proviso by not raising the question at the earliest opportunity. We have ruled in cases where our jurisdiction depended upon a constitutional question, as follows:
'It must be taken as settled law that in so grave a matter as a constitutional question it should be lodged in the case at the earliest moment that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived.' Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, 690, 113 S.W. 1108, 1110.
'This in order that the trial court may be treated fairly and the question get into the case under correct safeguards and ear-marked as of substance and not mere color.' Hartzler v. Met. St. R. Co., ...
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