Consolidated School Dist. No. 1 of Jackson County v. Bond

• Decision Date: 04 September 1973
• Docket Number: No. KCD,KCD
• Citation: 500 S.W.2d 18
• Parties: CONSOLIDATED SCHOOL DISTRICT NO. 1 OF JACKSON COUNTY, Missouri, a public corporation, Plaintiff-Respondent, v. Christopher S. BOND, State Auditor of Missouri, Defendant-Appellant. 26186.
• Court: Missouri Court of Appeals

Page 18

500 S.W.2d 18

CONSOLIDATED SCHOOL DISTRICT NO. 1 OF JACKSON COUNTY Missouri, a public corporation, Plaintiff-Respondent, v. Christopher S. BOND, State Auditor of Missouri, Defendant-Appellant.

No. KCD 26186.

Missouri Court of Appeals, Kansas City District.

Sept. 4, 1973.

Motion for Rehearing and/or Transfer Denied Oct. 1, 1973.

Application to Transfer Denied Nov. 12, 1973.

John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for defendant-appellant.

Kuraner, Dingman, Brockus, Kinton & Lowe, Harry D. Dingman, Kansas City, for plaintiff-respondent.

Before SHANGLER, P.J., and SWOFFORD and WASSERSTROM, JJ.

WASSERSTROM, Judge.

This suit for a declaratory judgment presents the issue of whether the plaintiff a six-director school district, is subject to mandatory audit by the defendant State Auditor upon the petition of a dissident minority of the voters, under the provisions of statutory § 29.230, subd. 2. ¹ The trial court ruled that plaintiff was not so subject, on the ground that this statute does not apply to school districts. The defendant appeals.

§ 29.230, subd. 2, here in question, provides as follows:

'The state auditor shall audit any political subdivision of the state, including counties having a county auditor, if requested to do so by a petition signed by 5 per cent of the qualified voters of the political subdivision determined on the basis of the votes case for the office of governor in the last election held prior to the filing of the petition. The political subdivision shall pay the actual cost of the audit. No political subdivision shall be audited by petition more than once in any one calendar or fiscal year.' (emphasis supplied)

The pleadings originally posed a factual issue as to whether the petitions filed with the State Auditor had been signed by 5% of the qualified voters of plaintiff school district. However, this question was eliminated by stipulation of the parties at trial that the sole issue is the legal one 'of whether or not the plaintiff comes within the terms of Section 29.230, subd. 2.' The only question for decision left therefore is the meaning to be given the phrase 'political subdivision', as used in this statute, and specifically whether that term includes a school district.

There is a very substantial body of law holding that a school district does constitute a political suydivision of the state. This was specifically so held in State ex inf. McKittrick v. Whittle, 333 Mo. 705, 63 S.W.2d 100 (banc 1933) where the court ruled that a school district is a political subdivision for the purposes of the constitutional ban on nepotism. In this respect the court held as follows:

'Respondent next contends that a school district is not a political subdivision of the state. The authorities are to the contrary. It is defined by a standard text as follows: 'A school district, or a district board of education or of school trustees, or other local school organization, is a subordinate agency, subdivision, or instrumentality of the state, performing the duties of the state in the conduct and maintenance of the public schools.' 56 C.J. 193.

'This definition is approved by this court in State ex rel. Carrollton School Dist. v. Gordon, 231 Mo. 547, loc. cit. 574, 133 S.W. 44, 51, * * *

'In the City of Edina to use v. School District, 305 Mo. 452, loc. cit. 461, 267 S.W. 112, 115, 36 A.L.R. 1532, we also said: 'Under the Constitution of 1875, the public schools have been intrenched as a part of the state government, and it is thoroughly established that they are an arm of that government and perform a public or governmental function, and not a special corporate or administrative duty. They are purely public corporations, as has always been held of counties in this state.''

So also in Smith v. Consol. School Dist. No. 2, 408 S.W.2d 50 (Mo., banc 1966) the court held that school districts are not liable in tort inasmuch as they are political subdivisions and therefore are entitled to the benefit of sovereign immunity. The same underlying concept was accepted and applied in School Dist. of Kansas City v. Kansas City, 382 S.W.2d 688 (Mo., banc 1964), where the court held that a school district is a political subdivision for the purpose of authority to enter into cooperative governmental agreements. In this respect, the court held at page 697 of the opinion. 'The School District is a political subdivision devoted to public education * * *'

These Missouri decisions are in accord with the court decisions generally in other jurisdictions. 78 C.J.S. Schools and School Districts § 24, p. 656; 68 Am.Jur.2d Schools, § 14, p. 371.

A prominent exception to the rule that school districts are to be regarded as political subdivisions has grown up in Missouri in one situation, namely, for the purpose of constitutional construction under Article V, § 3, defining jurisdiction of the Missouri Supreme Court. For that purpose, and that purpose alone, the courts of the State have held that school districts do not constitute political subdivisions. School Dist. No. 1 v. Boyle, 182 Mo. 347, 81 S.W. 409 (1904); School Dist. v. Burris, 84 Mo.App. 654; State ex rel. School Dist. of Sedalia v. Harter, 188 Mo. 516, 87 S.W. 941, 943 (1905); Wilson v. King's Lake Drainage & Levee Dist., 237 Mo. 39, 139 S.W. 136 (1911); State ex rel. School Dist. No. 4 v. School Dist. No. 3, 238 Mo. 407, 141 S.W. 1111 (1911); State ex rel. Consol. School Dist. No. 2 v. Ingram, 317 Mo. 1141, 1143, 298 S.W. 37 (1927); State ex rel. Cravens to Use of Consol. School Dist. No. 2 v. Thompson, 322 Mo. 444, 450, 17 S.W.2d 342 (1929); Consol. School Dist. No. 2 v. Gower Bank, 53 S.W.2d 280 (Mo.1932); State ex rel. Kugler v. Tallatson, 300 S.W.2d 517 (Mo.1957); State ex rel. Miller v. Bd. of Education of Consol. School Dist. No. 1, 18 S.W.2d 26 (Mo.1929); Normandy Consol. Sch. Dist. v. Wellston Sewer Dist., 74 S.W.2d 621 (Mo.1934); Hydesburg Common School Dist. v. Rensselaer Common Sch. Dist., 214 S.W.2d 4 (Mo.1948); Young v. Brassfield, 223 S.W.2d 491 (Mo.1949); State ex rel. Fredericktown Sch. Dist. No. 20 v. Underwood Sch. Dist. No. 16, 250 S.W.2d 843 (Mo.App.1952); Koch v. Bd. of Regents of N.W. Mo. State College, 256 S.W.2d 785 (Mo.1953); State ex rel. Dahm v. Goodin, 295 S.W.2d 600 (Mo.App.1956); State ex rel. McCain v. Acom, 236 S.W.2d 749 (Mo.App.1951); Jr. College Dist. of Met. K. C. v. Mayse, 433 S.W.2d 541 (Mo.1968).

Plaintiff school district places substantial reliance upon this line of cases and seeks to have § 29.230, subd. 2 construed just as Art. V, § 3 has been, to exclude school districts. This effort cannot be crowned with success. The exceptional result which has been reached under Art. V, § 3 came into acceptance by reason of historical accident. The Bar and Bench of this State had for many years after the constitutional amendment of 1884 assumed that the courts of appeal had jurisdiction of cases involving school districts as a party, and many cases of that sort had been decided by the courts of appeal without objection or any special consideration of the jurisdictional problem. It was not until 1900 that the issue was finally reached in School District v. Burris, 84 Mo.App. 654, l.c. 662 (1900). The court in that case pointed out that the courts of appeal had uniformly exercised superintending control over the inferior courts in respect to cases which one of the parties was a school district, and the court refused to tamper with that already settled practice. When the issue thereafter finally reached the Supreme Court in School Dist. v. Boyle, 182 Mo. 347, 81 S.W. 409 (1904), that court was also strongly impressed with the settled state which the law on this subject had already acquired and it was unwilling to even consider on the merits any change in that construction. In this respect the Supreme Court remarked that 'as so much has been judicially done on the faith of that assumption, we shall, on this motion, without stopping to discuss the question as if it were an original proposition in this court, content ourselves with so holding in conformity with the ruling in School Dist. v. Burris, supra * * *.'

The result in this line of cases was considered, rationalized, and narrowly confined in State ex inf. McKittrick v. Whittle, 333 Mo. 705, 63 S.W.2d 100 (banc 1933). The rationale offered by the Whittle decision, in distinguishing the cases involing Supreme Court jurisdiction from all other cases on the subject of whether a school district constitutes a political subdivision, was the peculiar language of the constitutional provision (now Art. V, § 3) where the words 'other political subdivisions of the state' immediately follow the word 'county,' from which the court inferred that for the purpose of this constitutional provision the political subdivisions covered had to have powers similar to those of a county.

The wording of § 29.230, subd. 2 is not the same as that of Art. V, § 3 so as to come within the Whittle rationale. Neither are the courts in construing § 29.230, subd. 2 hampered by previous practice, as was true when the constitutional provision first came up for judicial construction. To the contrary, the administrative construction of this statute since at least 1955 has been that the phrase 'political subdivision' does include school districts. Opinion of the Attorney General No. 74, Reeves, May 31, 1955. Therefore, no reason exists why the exceptional rule of construction under Art. V, § 3, should be used and applied in the construction of § 29.230, subd. 2.

With the single exception of the situation under Art. V, § 3 (which as indicated is inapplicable here), the term 'political subdivision' has acquired in this State and elsewhere a settled meaning and technical legal significance of including school districts. It must be assumed that the legislature in adopting § 29.230, subd. 2 used the term 'political subdivision' in that settled sense. § 1.090; ...