McDunn v. Roundy
| Decision Date | 15 February 1921 |
| Docket Number | 33671 |
| Citation | 181 N.W. 453,191 Iowa 976 |
| Parties | FRANK MCDUNN, Appellant, v. A. R. ROUNDY et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED JUNE 25, 1921.
Appeal from Harrison District Court.--EARL PETERS, Judge.
ACTION to enjoin defendants from issuing and selling bonds of the consolidated independent school district, on the ground that the election at which defendant directors were chosen was void, because such election was held by two judges instead of three. Injunction was denied, and plaintiff appeals.
Affirmed.
Robertson & Havens, for appellant.
Roadifer & Roadifer, for appellees.
On July 16, 1919, the Consolidated Independent School District of Douglas Township, Harrison County, Iowa, was legally organized and established by a vote of the electors within its territory. Afterwards, on August 4, 1919, an election was held in said district, for the purpose of electing the first board of directors, to complete the organization of the district, at which election the defendants A. R. Roundy Pearl Lyman, J. A. Seamans, L. A. Clark, and H. E. Yount were elected directors, unless said election was a void election, and consequently did not result in the election of said defendants as directors. Afterwards, an election was held in said district, at which a bond issue of $ 100,000 was authorized, for the purpose of building a schoolhouse and equipping it.
Involved in this action is the question whether the election so held for the election of directors was a valid election: that is, whether the defendants A. R. Roundy, Pearl Lyman, J. E. Seamans, L. A. Clark, and H. E. Yount are the duly elected directors of said consolidated independent school district.
Appellant's claim is that the election so held for the election of directors was not conducted according to the provisions of Chapter 149, Acts of the Thirty-eighth General Assembly, in that the election was held by two judges, instead of three judges. Plaintiff seeks to enjoin the defendants, who claim to have been elected directors, from issuing the bonds which were authorized by a vote of the electors of said district, for the reason, as appellant claims, that said defendants are not the duly elected directors of the district, and any bond issue they might make or negotiate would be void.
The election in question was called by the county superintendent, and notice of the holding of the election was given, as provided by the statute, and judges of the election were appointed by the county superintendent, as provided by the statute. The judges so appointed were Roy Towne, Pearl Lyman, and Ed Yeager. Towne and Lyman appeared at the time and place appointed for holding the election. Yeager did not appear, and did not act as a judge. It is provided in said act:
"If any judge fails to appear at the proper time his place shall be filled by the judge or judges present."
Towne and Lyman did not appoint the third judge in the place of Yeager, who failed to appear, and proceeded to hold the election without appointing a third judge in the place of Yeager. It is stipulated that the consolidated independent school district was duly and legally organized and established, and it is also stipulated that the proposition authorizing an issue of bonds, as provided by law, had been voted upon and carried at an election held in the district. No claim is made in this record, and there is no evidence submitted by the plaintiff, tending to show that said election for the election of directors was not a fair and honest expression of the will of the voters of the district, and there is no claim or showing that the failure of Yeager to appear and act as a judge, and the holding of the election by the other two judges appointed by the county superintendent, without appointing a judge in the place of Yeager, in any way affected the result of the election, or resulted in prejudice to the rights of anyone.
The proposition is clear, and there is no dispute as to the facts upon which it is to be determined. It is conceded that the election was held by two of the judges appointed by the county superintendent, and that these two judges held the election without complying with the provisions of the act as to the appointment of a third judge. The question presented and to be determined by this court is whether or not the failure to appoint the third judge, and the holding of the election with two judges, instead of three, where no prejudice resulted to any of the rights of the electors of the district, and where it is not claimed that other and different results would have followed, had the election been held by three judges, as provided in the act, instead of two, constitute such a variance from the terms of the statute as will vitiate the election, and render the same absolutely invalid and of no effect, so that there was, in fact, no election, and those of the defendants who have assumed to act as directors, by virtue of said election, never became duly elected, and are not now the directors of said school district.
Counsel for appellant take the position, and ably argue, that the question upon which the cause must be decided is whether the statute involved is mandatory or merely directory, and they urge that the statute is purely mandatory. Upon this premise, they insist upon the rule announced in City of Newton v. Board of Supervisors, 135 Iowa 27, 30, that:
"The uniform rule seems to be that the word 'shall,' when addressed to public officials, is mandatory, and excludes the idea of discretion."
There is no question but that the rule announced in the Newton case and other similar cases cited by appellant is a correct rule of law to obtain in such cases. But is such rule applicable to the case before us? We think not. In the Newton case, direct attack was made on the refusal of the officers to comply with the mandatory "shall" of the statute. In the instant case, there is no direct attack upon the acts of the two judges, in holding the election without the third judge. The attack is on the result of the election held by the two judges only. It would be a different attack if mandamus had been brought to compel the appointment of the third judge, or if injunction had been instituted to restrain the two judges from proceeding with the election without a third judge. Such attacks would be direct attacks. In the instant case, only the result of the election held is attacked. This statute is mandatory in form, and would be held to be mandatory in a direct attack upon the refusal of the two judges to appoint a third judge; but when the two judges have proceeded with the election, and the validity of the election is called into question, without any prejudice shown, simply on the ground that the third judge was not appointed, it becomes, in effect, directory.
Every statute prescribing the time and manner and method of holding elections is, of necessity, so worded that it is mandatory in form. Such a statute could not, of course, be worded in any other way. In 25 Ruling Case Law 773, on the subject of election laws, it is said, in substance, that, while the provision of an election law may be mandatory when the question is directly raised in some proceeding demanding that the provision should be complied...
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