Rathjen v. Reorganized School Dist. R-II of Shelby County

• Decision Date: 14 November 1955
• Docket Number: R-II,No. 44787,44787
• Citation: 284 S.W.2d 516,365 Mo. 518
• Parties: Alfred RATHJEN, C. E. Doyle, Clarence E. Coleman, V. B. Vondiber, C. A. VonThun, J. E. VonThun, Bert McCowell, Luther Turner, Carl Gillespie, W. Elwyn Jones, M. G. Conrad, Don Beckley, Alfred Beckley, Lee Gainer, H. L. Turner, G. D. Garner, Orin F. Schwanke, Jr., O. F. Lawson, Roy Cockrum, Leroy Miles, Vincil W. Foreman, N. F. Keith, Carl Griffith and Richard Griffin, Respondents, v. REORGANIZED SCHOOL DISTRICTOF SHELBY COUNTY, Missouri, Carl Belt, Frank Wand, John Bradley, John McEwen, Justin Peoples, Steve Bowdish, Board of Education of Reorganized School Districtof Shelby County, Missouri, James E. Kidwell, Collector of Shelby County, Missouri, Appellants.
• Court: Missouri Supreme Court

Page 516

284 S.W.2d 516

365 Mo. 518

Alfred RATHJEN, C. E. Doyle, Clarence E. Coleman, V. B Vondiber, C. A. VonThun, J. E. VonThun, Bert McCowell Luther Turner, Carl Gillespie, W. Elwyn Jones, M. G. Conrad Don Beckley, Alfred Beckley, Lee Gainer, H. L. Turner, G. D Garner, Orin F. Schwanke, Jr., O. F. Lawson, Roy Cockrum, Leroy Miles, Vincil W. Foreman, N. F. Keith, Carl Griffith and Richard Griffin, Respondents, v. REORGANIZED SCHOOL DISTRICT R-II OF SHELBY COUNTY, Missouri, Carl Belt, Frank Wand, John Bradley, John McEwen, Justin Peoples, Steve Bowdish, Board of Education of Reorganized School District R-II of Shelby County, Missouri, James E. Kidwell, Collector of Shelby County, Missouri, Appellants.

No. 44787.

Supreme Court of Missouri, En Banc.

Nov. 14, 1955.

Rehearing Denied Dec. 12, 1955.

John M. Dalton, Atty. Gen., John W. Inglish, Asst. Atty. Gen., for defendant James E. Kidwell, Collector of Shelby County, Mo.

Hess & Collins, Paul D. Hess, Jr., Macon, for Reorganized School Dist. R-II of Shelby County, Mo., Carl Belt, Frank Wand, John Bradley, John McEwen, Justin Peoples, Steve Bowdish, Board of Education of

Reorganized School Dist. R-II of Shelby County, Mo.

STORCKMAN, Judge.

Two cases involving the same question were consolidated for argument on appeal. Both cases involve the legality of a school tax levy. In one case the trial court decided in favor of the legality of the tax, and in the other case the decision was against its validity. One opinion on the merits will be written. In neither case are the facts in dispute.

Briefly, the essential facts in this case are that at a special election in the defendant school district a proposition was submitted to authorize an increase in the school levy for a period of one year. The revenue from the proposed levy was 'to be used as a building fund for an elementary school and gymnasium.' The amount of increase submitted was in excess of the constitutional limit of one dollar which could be levied by the defendant school district without voter approval. The proposal carried by more than a majority, but received less than two-thirds of the votes cast. Plaintiffs sued to enjoin the collection of the tax and to have the levy declared void. Defendants have appealed from the judgment in plaintiffs' favor.

Plaintiffs contend that Sec. 11(c) of Art. X of the 1945 Constitution, as amended, V.A.M.S., requires the approval of at least two-thirds, rather than a simple majority, of the qualified electors voting thereon in order to authorize a school levy in excess of the constitutional limitation of one dollar for the purpose of erecting school buildings.

Section 11 of Article X in its present form was adopted November 7, 1950, as an amendment to the 1945 Constitution. The amendment was proposed by Senate Joint Resolution No. 3. Laws of Missouri 1949, pp. 642-644. The original Sec. 11 of Art. X of the 1945 Constitution was repealed in its entirety and a new Sec. 11 was adopted by the people; however, the only change or addition was in subsection 11(c). For convenient reference we will set out Sec. 11(c), with the portion added by the amendment shown in italics. It is as follows:

'In all municipalities, counties and school districts the rates of taxation as herein limited may be increased for their respective purposes for not to exceed four years, when the rate and purpose of the increase are submitted to a vote and two-thirds of the qualified electors voting thereon shall vote therefor; provided in school districts the rate of taxation as herein limited may be increased for school purposes so that the total levy shall not exceed three times the limit herein specified and not to exceed one year, when the rate period of levy and the purpose of the increase are submitted to a vote and a majority of the qualified electors voting thereon shall vote therefor; provided in school districts in cities of 75,000 inhabitants or over the rate of taxation as herein limited may be increased for school purposes so that the total levy shall not exceed three times the limit herein specified and not to exceed two years, when the rate period of levy and the purpose of the increase are submitted to a vote and a majority of the qualified electors voting thereon shall vote therefor: Provided, that the rates herein fixed, and the amounts by which they may be increased, may be further limited by law; * * *.' ¹

The plaintiffs contend that the words 'for school purposes' in the amendment were adopted from the Constitution of 1875 and that they have an adjudicated meaning that does not include the erection of school buildings. First let us examine the rule for which they contend. It is stated in Ludlow-Saylor Wire Co. v. Wollbrinck, 275 Mo. 339, 205 S.W. 196, 199, as follows: 'The rule is firmly settled that the adoption in a later Constitution of the words and context of another, which had been construed by a court of last resort, is presumed (in the absence of a contrary intention) to have been done to give the adopted words their adjudicated meaning.'

First, it should be pointed out that the words in question could not have been adopted directly from the Constitution of 1875. The new constitution, as adopted by the people in 1945, did not use these words in Sec. 11 and there was a lapse or interval of five years before the words were brought in by the 1950 amendment. There is in this case a lack of continuity which uniformly exists where the rule is applied. The point is that, by reason of the lapse of time, it cannot be logically claimed that these words were adopted from the 1875 Constitution any more than from some other source. With much more reason it could be said that the words were taken from Sec. 5 of Art. IX of the 1945 Constitution, where they are used without any restricted or limited meaning being expressed. This will be further discussed later in the opinion.

Further, the presumption can have no application where the context of the amended section is materially different. The cases cited by the plaintiffs in support of the rule are ones in which provisions from previous constitutions have been reincorporated directly into a later constitution in their entirety, or without material variation. Take, for example, the case of Ludlow-Saylor Wire Co. v. Wollbrinck, supra, which was a suit to enjoin the enforcement of an income tax law on the ground that it violated Sec. 4, Art. X, of the 1875 Constitution. This section in the 1875 Constitution was: 'All property subject to taxation shall be taxed in proportion to its value.' 1 V.A.M.S. p. 249. This same provision, without material change, was Sec. 30, Art. I of the 1865 Constitution, 1 V.A.M.S. p. 118. In the 1820 Constitution it was Art. XIII, Sec. 19, 1 V.A.M.S. p. 96. The court held, since the context was the same, the adjudicated meaning of the word 'property,' acquired under the previous constitution, should not be disturbed.

The other case cited by plaintiffs is also a classic example of the application of the rule. In the case of Sanders v. St. Louis & N. O. Anchor Line, 97 Mo. 26, 10 S.W. 595, 3 L.R.A. 390, the court was concerned with the construction of Art. I, Sec. 1, of the 1875 Constitution, which provided that 'The State shall have concurrent jurisdiction on the river Mississippi, and every other river bordering on the State, so far as the said river shall form a common boundary to this State and any other State or States.' This same provision, in almost identical language, was contained in the Constitution of 1865, Sec. 2, Art. XI, 1 V.A.M.S. p. 145, and the 1820 Constitution, Sec. 2, Art. X, 1 V.A.M.S. p. 93.

The parties differ with respect to the application of the rule. The touchstone of this point, and perhaps the whole case, is whether the 'CONTEXT' IN Sec. 11 OF THE 1945 CONSTITUTIon, as amended, is the same as tHe context in which the words 'for school purposes' were used in Sec. 11 of the 1875 Constitution. Context is defined as: 'The part or parts of a discourse preceding or following a 'text' or passage or a word, or so intimately associated with it as to throw light upon its meaning.' Webster's New International Dictionary, 2d Edition.

The most significant and vital difference in the context of the two sections is the omission, in the new section, as amended, of all reference to the erection of buildings as a separate classification for voting purposes. The 1875 Constitution in effect provided that the annual rates for school purposes might be increased to an amount not to exceed $1 on the condition that a majority of the votes were cast in favor of the increase, except that for the purpose of erecting public buildings in school districts, the rate of taxation may be increased upon a two-thirds vote.

The most vital part of Sec. 11, Art. X of the 1875 Constitution that was abandoned entirely and not carried over into the new constitution or the 1950 amendment, reads as follows, 1 V.A.M.S. p. 251: 'For the purpose of erecting public buildings in counties, cities or school districts, the rate of taxation herein limited may be increased when the rate of such increase and the purpose for which it is intended shall have been submitted to a vote of the people, and two-thirds of the qualified voters of such county, city or school district, voting at such election, shall vote therefor.' There is no counterpart in the 1945 Constitution, as amended, of the above provision separately classifying the purpose of levying a tax for the erection of school buildings.

If Sec. 11 of the 1875 Constitution had not expressly created the exception with respect to the vote necessary to create a tax for the erection of school buildings, or if such provision had been repealed, there would have been no occasion for the exclusion of the erection of school buildings from the term 'school purposes' generally. See the first sentence of Sec. 11 which gives the broad grant of power to tax 'for school...