State ex rel. Consol. School Dist. No. 5 of Macon County v. Smith

• Decision Date: 04 January 1945
• Docket Number: 39260
• Parties: State ex rel. Consolidated School District No. 5 of Macon County, Missouri, a Corporation, Relator, v. Forrest Smith, State Auditor of Missouri
• Court: Missouri Supreme Court

184 S.W.2d 452

353 Mo. 840

State ex rel. Consolidated School District No. 5 of Macon County, Missouri, a Corporation, Relator, v. Forrest Smith, State Auditor of Missouri

No. 39260

Supreme Court of Missouri

January 4, 1945

Original Proceeding in Mandamus.

Peremptory writ issued.

R Wilson Barrow, Nat M. Lacy and Walter C Goodson for relator.

(1) Mandamus is the proper remedy to compel the State Auditor to register the bonds of relator. State ex rel. City of Jefferson v. Hackmann, 287 Mo. 156, 229 S.W. 1082; State ex rel. Webster Groves Sanitary Sewer Dist. v. Smith, 337 Mo. 855, 87 S.W.2d 147. (2) The qualified voters of any community in Missouri may organize a consolidated school district for the purpose of maintaining both elementary schools and high schools under the provisions of Sections 10493-10500, inclusive, R.S. 1939; State ex inf. Thompson ex rel. Kenneppe v. Scott, 304 Mo. 664, 264 S.W. 369; State ex inf. Carnahan ex rel. Webb v. Jones, 266 Mo. 191, 181 S.W. 50; State ex rel. Consolidated Dist. No. 9 of New Madrid County v. Thompson, 325 Mo. 1170, 30 S.W.2d 603; State ex rel. Buckley v. Thompson, 323 Mo. 248, 19 S.W.2d 714; State ex rel. Consolidated School Dist. No. 1 of Mississippi and New Madrid Counties v. Jones, 8 S.W.2d 66; State ex rel. Clements v. Clardy, 267 Mo. 371, 185 S.W. 184. (3) The act of the Legislature (Laws 1941, p. 545) does not repeal, amend, or in any way abrogate directly or by implication the Sections of the 1939 statutes under which relator was organized. It simply attempts to provide a way whereby adjacent city, town, or consolidated school districts without limitations as to size or enrollment and adjacent common school districts, all of whose boundaries are already definitely fixed, may be attached to each other and become Consolidated School District. Laws 1941, p. 545; Hull v. Baumann, 345 Mo. 159, 131 S.W.2d 721; State ex inf. Thompson ex rel. Kenneppe v. Scott, 304 Mo. 664, 264 S.W. 369; Nomath Hotel Co. v. Kansas City Gas Co., 204 Mo.App. 214, 223 S.W. 975. (4) Statutes providing for organization of school districts are liberally construed in favor of organization. State ex inf. Carnahan ex rel. Webb v. Jones, 266 Mo. 191, 181 S.W. 50; State ex rel. Fleener v. Consolidated School District No. 1, 238 S.W. 819; State ex inf. Attorney General ex rel. Lincoln v. Bird, 295 Mo. 314, 244 S.W. 938; State ex rel. Gentry v. Sullivan, 8 S.W.2d 616; State ex inf. Barrett ex rel. Cutler v. Foxworthy, 301 Mo. 376, 256 S.W. 466. (5) Pendency of other suit such as quo warranto proceeding in circuit court will not suffice to relieve the State Auditor from the discharge of a duty enjoined by statute. Pendency of other proceeding will not abate or bar mandamus also where in other suit the parties are not the same and where adequate and timely relief cannot be obtained therein. State ex rel. City of Republic v. Smith, 345 Mo. 1158, 139 S.W.2d 929; State ex rel. City of Memphis v. Hackmann, 282 Mo. 292, 202 S.W. 7; State ex rel. Harmony Drainage Dist. No. 3, Saline County, v. Hackmann, 305 Mo. 685, 267 S.W. 608; State ex rel. Wahl v. Speer, 284 Mo. 45, 223 S.W. 655; Perkins v. Burks, 336 Mo. 248, 78 S.W.2d 845.

Roy McKittrick, Attorney General, and Vane C. Thurlo, Assistant Attorney General, for respondent; Waldo Edwards and D. L. Dempsey of counsel.

(1) In an action of mandamus to compel the State Auditor to register the bonds of a consolidated school district the Auditor can question the legality of the organization of the district. State ex rel. Consolidated District No. 9 of New Madrid County v. Thompson, 30 S.W.2d 603, 325 Mo. 1170. (2) The remedy by mandamus is reserved for extraordinary emergencies. It is not a writ of right, but is only to be issued when the right to be enforced is clear and will not issue if there is any other remedy. State ex rel. Cook v. Kelly, 142 S.W.2d 1091. (3) Mandamus issues only in case of necessity to prevent injustice or great injury, and if there is doubt of its necessity or propriety, it will not issue. State ex rel. K.C. Bridge Co. v. Workmen's Compensation Comm., 92 S.W.2d 624. (4) Mandamus is a discretionary writ and not a writ of right. The issuance of a writ of mandamus rests in the sound discretion of the court. State ex rel. Cranfill v. Smith, 48 S.W.2d 891, 330 Mo. 252; Perkins v. Burks, 78 S.W.2d 845, 336 Mo. 248. (5) The word "adjacent" as used in the 1941 Act has a clear and unmistakable meaning when the context of the statute is read and other statutes in regard to the organization of schools are read and considered and in which the terms "adjoining" and "abutting" are employed. The word "adjacent" is of Latin derivation from "ad-jaceo", to lie at or near. In ordinary acceptation the meaning of the word is close, close at hand, close to, convenient, in the neighborhood and vicinity of, etc. When used in a statute its exact meaning is determinable principally by the context in which it is used, the subject matter to which it is applied, or the intent of the Legislature. 1 C.J., pp. 1194-1197, 1464-1468. (6) Section 10495, R.S. 1939 and Section 10500.1, R.S.A., p. 600 (Laws 1941, p. 600) deal with the same subject, the 1941 Act in a more detailed and specific way. Therefore, where they conflict, the later act controls. (7) Two statutes relating to the same general subject matter should be read together and harmonized, if possible, with a view to giving effect to consistent legislative policy; but, to extent that statutes are necessarily inconsistent, later statute which deals with common subject matter in particular way will prevail over earlier statute of more general nature. State v. Harris, 337 Mo. 1052, 87 S.W.2d 1026. (8) If two statutes deal with the same subject matter and are inconsistent with each other, so that both cannot be operative as to such subject matter, the latter will be regarded as a substitute for the former one, and will operate as a repeal, although it contains no express repealing clause. State ex rel. Mo. Pac. Ry. Co. v. Public Service Comm., 204 S.W. 395. (9) If two statutes deal with the same subject matter and are inconsistent with each other, so that both cannot be operative as to such subject matter, the later act will be regarded as a substitute for the earlier one and will operate as a repeal thereof, although it contains no repealing clause. Young v. Greene County, 342 Mo. 1105, 119 S.W.2d 369. (10) Where there are two acts on one subject, the rule is to give effect to both, if possible, but if the two are repugnant in any of their provisions, the later act, without any repealing clause, operates to the extent of the repugnancy as to repeal the first. State ex rel. City of Republic v. Smith, 139 S.W.2d 929, 345 Mo. 1158; State v. Richman, 148 S.W.2d 796, 347 Mo. 595; State ex rel. County of Buchanan v. Fulks, 247 S.W. 129, 296 Mo. 614. (11) A statute dealing with a subject in general and comprehensive terms, should be read and harmonized, if possible, with another statute dealing with part of same subject in more minute and definite way, with a view to effecting consistent legislative policy, but special will prevail over general statute to extent of any necessary repugnancy. State ex rel. City of Springfield v. Smith, 125 S.W.2d 883, 344 Mo. 150.

Leedy, J. All concur except Gantt, J., absent.

OPINION

LEEDY

This is an original proceeding in mandamus to compel the State Auditor to register and certify Bond No. 1 of a series of building bonds, aggregating $ 55,000.00, issued by relator district, which claims to be a consolidated school district. The Auditor denied registration for the sole reason that the district was not legally organized. Such is the limited issue presented by this proceeding on the question of the right to registration, although other grounds, addressed to the court's discretion, are assigned by respondent for the refusal of the peremptory writ.

The facts are agreed. The new district contains an area of more than 50 square miles, and has an enumeration of at least 200 children of school age, and does not include any town or city district which had an enumeration of 500 school children of school age. It consists of territory which formerly comprised the whole of the following eight common school districts, and one town district of Macon County, to-wit: Palmyra No. 69; Valley No. 70; Jake Grove No. 95; Rose Hill No. 96; Manhart No. 98; Rogers No. 102; Prairie No....