Chicago, M., St. P. & P.R. Co. v. Fallon County

• Decision Date: 22 December 1933
• Docket Number: 7163.
• Parties: CHICAGO, M., ST. P. & P. R. CO. v. FALLON COUNTY.
• Court: Montana Supreme Court

28 P.2d 462

95 Mont. 568

CHICAGO, M., ST. P. & P. R. CO. v. FALLON COUNTY.

No. 7163.

Supreme Court of Montana

December 22, 1933

Rehearing Denied Jan. 10, 1934.

Appeal from District Court, Fallon County; S.D. McKinnon, Judge.

Action by Chicago, Milwaukee, St. Paul & Pacific Railroad Company against Fallon County. From a judgment for plaintiff defendant appeals.

Reversed and remanded, with directions.

CALLAWAY C.J., dissenting.

D. R Young, of Baker, for appellant.

Murphy & Whitlock, of Missoula, for respondent.

ANGSTMAN Justice.

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, c. 146, Laws 1931, in that the election was held on July 20th 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 1st, 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 1st 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, c. 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 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 of Jones 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 of Helena, 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 mandatory from directory 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 City of 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. School District, 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 of School District No. 27, 31 Okl. 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...