State ex Inf. Mitchell ex rel. Goodman v. Heath

• Decision Date: 03 November 1939
• Parties: State of Missouri on the information of Willis H. Mitchell, Prosecuting Attorney, ex rel. John Goodman, Appellant, v. George Heath
• Court: Missouri Supreme Court

132 S.W.2d 1001

345 Mo. 226

State of Missouri on the information of Willis H. Mitchell, Prosecuting Attorney, ex rel. John Goodman, Appellant, v. George Heath

Supreme Court of Missouri

November 3, 1939

Appeal from Douglas Circuit Court; Hon. Robert L. Gideon Judge.

Affirmed.

Willis H. Mitchell, Fred Stewart, Jr., and Tom R. Moore for appellant.

This being a common school district, the qualifications of the directors are plainly set forth by statute: "And each director shall be a citizen of the United States, a resident taxpayer of the district, and who must have paid a State and county tax within one year next preceding his or her election, and must have resided in the State of Missouri for one year next preceding his or her election or appointment and shall be at least twenty-one years of age." R. S 1929, sec. 9287. Relative to common school directors, this section has been construed by the Supreme Court of Missouri. State ex inf. v. Fasse, 189 Mo. 532; State ex inf. v. Menengali, 307 Mo. 447. Each director, by statute, must within four days after election or appointment, take and subscribe an oath or affirmation to faithfully and impartially discharge the duties of office, which oath may be administered by each other, and the district clerk shall enter the same with the date thereof, and a form of such oath is also carried in the statute. R. S. 1929, sec. 9288.

John M. Bragg for respondent.

The requirements as set forth in Section 9287, Revised Statutes 1929, are the only requirements which a school director needs to meet to become a director upon election. The payment of taxes within one year immediately preceding the election or the induction into office, means the preceding calendar year and not one year immediately preceding the induction into office. Sec. 655, R. S. 1929; State ex rel. Circuit Attorney v. Macklin, 41 Mo.App. 335. A taxpayer is a person who owns property not exempt from taxation although it may not be assessed regular it is still subject to a tax, and the owner thereof is a taxpayer. State ex inf. Bellamy, ex rel. Harris v. Menengali, 270 S.W. 103. Section 9288, Revised Statutes 1929, is directory and not mandatory and should be liberally construed as all school laws are liberally construed when they are directory. State ex inf. v. Bird, 244 S.W. 938.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is a proceeding in quo warranto on information of the prosecuting attorney of Douglas County to oust respondent from the office of school director on the ground that he was not qualified to hold the office because he was not a resident taxpayer, who had paid a State and county tax within one year next preceding his election, and because he did not "make a legal oath and qualify for said office within four days after his election." The court found for respondent and entered judgment quashing the writ. Relator has appealed.

We have jurisdiction because "the office of school director is an office under this State" (created by statutes of this State) and title to this office is the question presented for decision. [Const., Art. 6, Sec. 12, and Sec. 5 of Amendment of 1884; State ex rel. Worsham v. Ellis, 329 Mo. 124, 44 S.W.2d 129; State ex rel. Gentry v. Sullivan, 320 Mo. 362, 8 S.W.2d 616 (en Banc); State ex inf. Thompson v. Bright, 298 Mo. 335, 250 S.W. 599, and cases cited.]

We first consider the ground that there was a vacancy created because of respondent's failure to qualify by taking the oath prescribed in Section 9288, Revised Statutes 1929, within four days after his election. There was an agreed statement of facts which showed "that the respondent was sworn in as a school director by Gusta Burk, chairman of the election, and began the discharge of his duties; that about two weeks thereafter he was sworn in as school director and took the oath before a justice of the peace of Douglas County, Missouri, Arch Irvin. It is further agreed that the respondent signed the oath of office when taken in the school meeting and also signed a written oath when sworn by the justice of the peace. This court has said: "If a statute merely requires certain things to be done and nowhere prescribes the result that shall follow if such things are not done, then the statute should be held to be directory." [State ex inf. Attorney General v. Bird, 295 Mo. 344, 244 S.W. 938.] Likewise, it is said: "Statutes fixing the time within which school officers must qualify are, as a general rule, regarded as directory to the extent that mere delay in qualifying within the time prescribed does not, of itself, cause a vacancy in the office, unless there is contained in the statute an express provision to that effect." [56 C. J. 309, sec. 182; see also 46 C. J. 962, sec. 95; 22 R. C. L. 451, sec. 108.] Respondent apparently made an effort in good faith to comply with Section 9288 by signing the written statutory oath of office. We think he did substantially comply with it because it provides for either "an oath or affirmation." [See 46 C. J. 938, sec. 3.] The statute authorized either of the other directors to administer such oath. The office should not be declared vacant, if they failed or refused to do so, when respondent had actually signed the oath and, thereafter, went to a justice of the peace to have it administered within a reasonable time and before any effort was made to declare or fill a vacancy.

It further appears from the agreed statement of facts, that respondent "is more than twenty-one years of age and a resident of the school district, and a citizen of the United States;" that he "resided within the district two years prior to the 1937 election" at which he received 25 votes to his opponent's 11 votes; and that he "owned personal property within the district consisting of one cow and a heifer, and some hogs, chickens, household and kitchen furniture." Respondent was assessed for personal taxes due in 1935 (assessment of June 1, 1934), and paid these taxes on February 17, 1936. However, his property was not again assessed as of June 1, 1935, for 1936 taxes, prior to the school election. It was further stipulated that "after the school election, on the 8th day of April, 1937, he was assessed for the year 1936 (as of June 1, 1935) and paid his taxes" for 1936 on that date. It is also stated that this "school election was duly held on the second Tuesday in April, 1937," which the calendar shows was April 13, 1937, so that the facts stated are in conflict as to when the election was held. However, because of the view we take, this conflict is immaterial.

Section 9287, Revised Statutes 1929, provides that common school districts shall be governed by a board of three directors "who shall be citizens of the United States, resident taxpayers of the district (21 years of age), and who shall have paid a state and county tax within one year next preceding his, her or their election, and who shall have resided in this state for one year next preceding, his, her or their election." The decisive question here is whether or not respondent, under the admitted facts, has complied with the above italicized part of the section prescribing qualifications essential to his eligibility to the office of school director. [Sec. 9328, R. S. 1909, prescribes this same qualification for directors of City, Town and Consolidated schools; see also Secs. 9517 and 9572, R. S. 1929, for qualifications in larger cities where strangely this requirement is relaxed or abolished.] It should also be noted that substantially the same provision is made concerning qualifications of members of both houses of the General Assembly. [Const., Art. 4, Secs. 4 and 6.] The evident purpose of this requirement is to have such officers, who impose taxes on others and determine how they shall be spent, chosen from among those citizens who have been paying, and will likely continue to pay, taxes. It is said, however, that such "statutes imposing qualifications should receive a liberal construction in favor of the right of the people to exercise freedom of choice in the selection of officers." [46 C. J. 937, sec. 32.] The Missouri decisions have given a liberal construction to this and similar sections prescribing requirements of eligibility to elective offices.

In State ex inf. Bellamy v. Menengali, 307 Mo. 447, 270 S.W. 101, this court held that a married woman was qualified to be a common school director, under this section, if she actually owned taxable property in the district upon which taxes were paid for the year prior to her election, although the property was assessed in the name of her husband and the taxes were paid by him. In that case, Mrs Menengali was elected director in April, 1922. It was shown that she owned taxable property on June 1, 1920, which was assessed in her husband's name...