Hudgins v. Mooresville Consolidated School District

• Decision Date: 22 December 1925
• Docket Number: 26079
• Citation: 278 S.W. 769,312 Mo. 1
• Parties: F. W. HUDGINS et al., Appellants, v. MOORESVILLE CONSOLIDATED SCHOOL DISTRICT et al
• Court: Missouri Supreme Court

278 S.W. 769

312 Mo. 1

F. W. HUDGINS et al., Appellants, v. MOORESVILLE CONSOLIDATED SCHOOL DISTRICT et al

No. 26079

Supreme Court of Missouri

December 22, 1925

Appeal from Livingston Circuit Court; Hon. Guy Park, Judge.

Affirmed.

June Curtis Voorhees and Davis & Ashby for appellants.

(1) Section 11127 (R. S. 1919) makes it the duty of the clerk to sign and post the notices of the election. State v. Ry Co., 75 Mo. 528; McPike v. Pen., 51 Mo. 64; State ex rel. v. Martin, 83 Mo.App. 55. (a) H. S Fahey, the acting clerk pro tem, signed and posted the notices in his own name calling the election to vote upon the bonds, and while said notices of said election could have been signed and posted by the said H. S. Fahey, yet, he could only do so in the name of J. E. Fahey, the regular clerk. Riggs v. Polk Co., 96 P. 5; Commonwealth v Barrett, 17 S.W. 336; Swenson v. McLaren, 21 S.W. 300; City of New Port v. Glazier, 104 S.W. 774. (b) J. E. Fahey's term of office had not expired and he did not resign, nor was the office declared vacant and he was not removed by the board and he remained the regular clerk and held the title to the office, and as Section 11240 (R. S. 1919) subjects the clerk to the same liabilities as clerk of the school boards of other districts, he could only be removed from office as is provided by Section 11217. (c) The clerk of the school board is a public officer. State ex rel. v. Parker, 188 Mo. 526. (d) There cannot be an officer de jure and an officer de facto both in possession of the same office at the same time. State ex rel. v. Dorton, 145 Mo. 304. (e) When an official act is performed by a deputy or an officer acting temporarily for and on behalf of the officer holding the title to the office the said acts of the inferior officer must be done in the name of the superior officer. Murdock v. Hillyer, 45 Mo.App. 287; Stucker v. Thompson, 181 Mo.App. 518; State ex rel. v. Fisher, 230 Mo. 339; Biggers v. Winkles, 124 Ga. 990. (2) Section 11, Article 10, prohibits the school district from imposing a rate of taxes for school purposes for a single year in excess of forty per cent of the assessed valuation, but this may be increased to sixty-five cents for school purposes, upon a majority vote, and a further increase may be had upon a two-thirds vote to erect a public building. These are the limitations of said Section 11, and the school district cannot make a full levy for these purposes and then for the same purpose become indebted and issue bonds under Section 12, Article 10, even upon a two-thirds vote. Arnold v. Hawkins, 95 Mo. 569; Black v. McGonigle, 103 Mo. 192; Barnard Co. v. Knox Co., 105 Mo. 382; Brooks v. Schultz, 178 Mo. 222; Strother v. Kansas City, 283 Mo. 283. (a) It was clearly the intention of the framers of the Constitution to place the public business of municipalities on a cash base, and to limit the ordinary expenditures to the income and revenue for each year. Secs. 11 and 12, Art. 10, Constitution; Book v. Earl, 87 Mo. 251; Trask v. Livingston Co., 210 Mo. 592; Holloway v. Howell Co., 240 Mo. 613; State ex rel. Chariton Co. v. Gordon, 265 Mo. 188; State ex rel. Clark Co. v. Hackman, 280 Mo. 696. (b) To become indebted and issue bonds for the purpose of raising funds with which furniture is to be bought for the school house and the increasing of the tax rate to pay such indebtedness over and above that permitted under Section 11, Article 10, is in conflict with the spirit of said section and violates it. This is so even upon a two-thirds vote. When a school district has levied the maximum rate permitted by said Section 11, for school purposes, it cannot increase said maximum rate for said same purpose. Brooks v. Shultz, 178 Mo. 222; Strother v. Kansas City, 283 Mo. 283. (c) School purposes are not within the purview of public buildings. C. & A. Ry. Co. v. People, 163 Ill. 616; Allen v. City of Burlington, 45 Vt. 211. (d) Nor is the furnishing of a school house within the purview of public buildings, but furnishing is held to be a school purpose. Herrington v. Hopkins, 288 Mo. 1; Jacobs v. Cauthorn, 293 Mo. 154.

Kitt & Marshall and Bowersock & Fizzell for respondents.

(1) This election was held and bonds voted under the provisions of Section 11127, Revised Statutes 1919, and Section 12 of Article 10 of the Constitution of Missouri. Consolidated school districts are authorized to vote bonds under this provision. State ex rel. Clark v. Gordon, 261 Mo. 631. (2) The purposes for which these bonds were being issued come within the purposes named in the statute. There is, of course, no necessity that the purpose for which the bonds are to be issued should be stated in exactly the same language as that used in the statute, and this cannot affect the legality of the proceedings if the purposes for which the bonds are being issued do actually come within the purposes named in the statute. Sec. 11127, R. S. 1919; Beauchamp v. Consolidated School Dist., 247 S.W. 1004. (3) School matters are handled by laymen not versed in law or the technicalities thereof, and the school law and statutes governing school matters are designed as a workable method for carrying into effect the wishes of plain, honest, worthy citizens not specially learned in the law and no strict or technical construction is to be put upon it. State ex rel. Morrison, v. Sims, 201 S.W. 910; State ex inf. v. Jones, 266 Mo. 191; State ex inf. v. Clardy, 267 Mo. 371; State ex rel. v. Job, 206 Mo. 34. (4) Elections will not be held invalid because of trifling irregularities which did not have the affect of influencing the result of the election. Breuninger v. Hill, 277 Mo. 239; State ex rel. City of Memphis v. Hackman, 273 Mo. 670. (5) The provision of Section 11127, Revised Statutes 1919, relative to who shall sign and post the notice is directory, and not mandatory. The fact that notice shall be given is substantive, but if notice is given for the required length of time as provided by the statute and nobody is deceived thereby, and there has been a substantial compliance with the statute, it is sufficient. Sanders v. Lacks, 142 Mo. 263; State v. Gackman, 202 S.W. 7; State ex rel. School Dist. v. Cloud, 192 Mo.App. 322; State v. Swearingen, 128 Mo.App. 606; State ex rel. Richart v. Stouffer, 197 S.W. 248; State ex inf. v. Bird, 295 Mo. 344; State ex inf. v. Foxworthy, 256 S.W. 466; State ex rel. v. Speer, 284 Mo. 47; Hehl v. Guion, 155 Mo. 83; State ex inf. v. Roberts, 153 Mo. 112; Ex parte Harvey Leach, 149 Mo.App. 328. (a) Statutes relating to schools and school districts are given a liberal construction. State ex inf. v. Morgan, 268 Mo. 266; State ex rel. v. Job, 205 Mo. 34; State ex rel. v. Andrae, 216 Mo. 637. (b) Whether a provision in a statute is mandatory or directory is to be determined by the character and purpose of the statute. If no substantial right depend upon it and no injury can result from ignoring it, and the purpose of the Legislature can be accomplished in a manner other than as prescribed therein and substantially the same result obtained, then the statute will generally be regarded as directory. Bituminous Paving Co. v. McManus, 144 Mo.App. 594. (c) Whether a particular statute or part thereof is mandatory or directory does not depend upon its form, but on the intention of the Legislature, to be ascertained from a consideration of the entire act, its nature, its object, and the consequences that would result from construing it one way or the other. 36 Cyc. 1157, sec. 8; 25 R. C. L. p. 772, sec. 19. (d) As to mandatory and directory statutes, it is said that when the provision of the statute is the essence of the thing required to be done it is mandatory, but when it relates to form and manner is directory. 3 Bouvier's Law Dictionary (3 Rev.), p. 3130; Davis v. Smith, 58 N.H. 17. (6) Section 11 of Article 10 of the Constitution of Missouri applies only to the annual rate or annual levy for general operating purposes for the school year, and limits the annual levy for general school purposes. This section provides the rate may be increased above the limited rate for general school purposes, for the purpose of erecting public buildings in the school district, when submitted to the people and two-thirds of the voters voting favor it. Section 12, Article 10, provides for the creating of an indebtedness to an amount not exceeding five per cent on the value of the taxable property in the district; the provisions of this section are self-enforcing and empower the governing body to levy a tax sufficient to pay the interest on the indebtedness and create a sinking fund with which to retire same. This levy may be made in addition to any annual levy made under the provisions of Section 11, Article X, for general purposes. State ex rel. Clark Co. v. Hackman, 280 Mo. 686; State ex rel. Wahl v. Speer, 284 Mo. 45; State ex rel. Audrain Co. v. Hackman, 275 Mo. 534; Lamar Co. v. City of Lamar, 128 Mo. 188, 140 Mo. 145; Water Co. v. City of Aurora, 129 Mo. 540; State ex rel. Miller v. Ry. Co., 164 Mo. 208; City of Lexington ex rel. v. Bank, 165 Mo. 671; State ex rel. v. Neosho, 203 Mo. 40. (7) The provision of Section 11, Article X, of the Constitution, providing that the rate of taxation may be increased in counties, cities or school districts, "for the purpose of erecting public buildings" when approved by two-thirds of the votes at an election, carries with it the right to purchase a site and furnish the building. State ex rel. Wahl v. Speer, 284 Mo. 45; Beauchamp v. Consolidated School Dist., 297 Mo. 73.

OPINION

Walker, P. J.

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 ...