State ex rel. Hand v. Bilyeu, R-1

• Decision Date: 04 April 1961
• Docket Number: M,R-1,No. 7918,No. 52,P,52,7918
• Citation: State ex rel. Hand v. Bilyeu, 346 S.W.2d 221 (Mo. App. 1961)
• Parties: STATE of Missouri, at the relation of James K. HAND, Arthur P. Beauchamp, and George L. Thompson, of Maries County, Missouri, and Homer Campbell, Clyde Bull, Clarence Martin, Gene Smoot, Eugene Elkins, and Millard Hauck, members of the board of directors, Dixon Reorganized Schoolsulaski County, Missouri, Relators-Appellants, v. Jesse BILYEU, Reba Deardueff and Von Connor, last members of West Fairview School Districtaries County, Missouri, Von Connor, Dessie Bilyeu, and Frank Hodge, of Maries County, Missouri, and Willard Terry, Howard Henderson, Max John, Tim Ramsey, Ed Minzes, and James Murphy, board of directors of Reorganized School Districtaries County, Missouri, Respondents.
• Court: Missouri Court of Appeals

Page 221

346 S.W.2d 221

STATE of Missouri, at the relation of James K. HAND, Arthur P. Beauchamp, and George L. Thompson, of Maries County Missouri, and Homer Campbell, Clyde Bull, Clarence Martin Gene Smoot, Eugene Elkins, and Millard Hauck, members of the board of directors, Dixon Reorganized Schools R-1, Pulaski County, Missouri, Relators-Appellants, v. Jesse BILYEU, Reba Deardueff and Von Connor, last members of West Fairview School District No. 52, Maries County Missouri, Von Connor, Dessie Bilyeu, and Frank Hodge, of Maries County, Missouri, and Willard Terry, Howard Henderson, Max John, Tim Ramsey, Ed Minzes, and James Murphy, board of directors of Reorganized School District R-1, Maries County, Missouri, Respondents.

No. 7918.

Springfield Court of Appeals, Missouri.

April 4, 1961.

Edgar M. Eagan, Jefferson City, for relators-appellants.

Bond & Dominique, John O. Bond, P. Pierre Dominique, Jefferson City, for respondents.

RUARK, Judge.

In this mandamus proceeding the relators have appealed from the action of the circuit court in quashing the alternative writ.

Some of the relators are taxpaying citizen patrons of West Fairview, a (former) common school district, and the others are the members of the school board of Dixon Reorganized School R-1 of Pulaski County. The respondents are Von Connor, chairman, and Dessie Bilyeu, secretary of a West Fairview meeting at which there was submitted the question of whether the district should be annexed to Reorganized School R-1 of Maries County, also the members of the last school board of West Fairview, the County Superintendent of Schools of Maries County, and the members of the school board of the Maries district. For sake of brevity we will hereafter refer to the common school district as Fairview, the annexing district whose board members are respondents as Maries, and the contending district whose board members are relators as Dixon.

On December 19, 1958, a petition was presented to the Fairview school board calling for a special election to determine whether Fairview should be annexed to Maries. By letter of date March 13, 1959, the State Department of Education notified the Pulaski County Board of Education that in respect to a disagreement between the county boards of Maries and Pulaski counties, which disagreement had been referred to the state board, it had placed all of Fairview district in the Dixon (Pulaski County) reorganization plan, subject to submission to the voters within sixty days. Copy of that letter went to the Maries board. On March 16, 1959, the Fairview board called an election to determine whether Fairview should be annexed to Maries. On March 24 the Pulaski County board met and called an election for the Dixon plan, such election to be held on April 21.

On March 31, 1959, the voters of Fairview met pursuant to notice to vote on the issue of annexation to Maries. Von Conner was elected chairman and Dessie Bilyen secretary. The votes were duly cast and counted and tally was kept on the blackboard. The total vote so counted was 'against annexation, 21,' and 'for annexation, 20.' There is no dispute about that.

Now Section 165.300 provides that the voting at elections such as this shall be as provided in Section 165.267, and the latter provides 'each person desiring to vote shall advance to the front of the chairman and deposit his ballot in a box to be used for that purpose. When all present shall have voted, the chairman shall appoint two tellers, who shall call each ballot aloud and the secretary shall keep a tally and report to the chairman, who shall announce the result; * * *' Connor did not announce the result. Instead, four alleged absentee ballots having appeared from somewhere, he stated, 'That is the way it stands, until this is continued and the absentee is counted in, and then we will have the final results of this election.' The minutes substantially reflect this method of procedure.

On April 2, 1959, the respondent members of the school board met with the respondent Bilyeu, she then in capacity of clerk of the district, and 'four disinterested counters.' They opened the four alleged absentee ballots, declared them all as 'legal according to law,' and counted them all in 'favor' of annexation, and respondent Dessie Bilyeu showed in her minutes, 'This being total of count of election. For annexation--24. Against--21.'

Section 165.300 provides, 'Should a majority of the votes cast favor such annexation, the secretary shall certify the fact, with a copy of the record, to the board of said district and to the board of said city, town or village * * * district * * *' Dessie Bilyeu didn't do it quite that way. Instead, on the next day (April 3) she called the superintendent of the Maries school and verbally informed him 'with the absentee count, we had won this election' and requested a meeting with the Maries board. Then this diligent lady typed a notice or request to Maries as follows, 'As a result of the election of March 31, 1959, we, the school board of West Fairview No. 52, Maries County ask that the West Fairview School District be accepted by R-1, Maries County, Missouri.' This was signed by the members of the board of Fairview (one of whom was Von Connor) and of course by Dessie, this time as clerk.

On that 3rd day of April there were apparently two meetings with the board of Maries. Dessie told the Maries board 'the results of this election and I told them that we were ready to turn * * * all the records in the district complete to R-1, Maries.' In one of those meetings she and the Fairview board turned over to the Maries board all of the records of the Fairview district. However, she thoughtfully retained in her personal possession those records which dealt with 'this election part of it.'

The minutes of the Maries board (April 3, 1959) show that 'Dessie Bilyeu, clerk, reported to the R-1 board the results of the annexation election held in West Fairview on March 31. There were 20 votes for annexation to Maries County and 21 against with 4 absentee votes. The 4 votes were in favor of annexation, making a total of 24 for and 21 against.' On motion the Fairview district was accepted by Maries. These minutes also show the order for payment of some obligations of the Fairview district. Thereafter and thenceforth Maries district assumed to exercise jurisdiction over the deceased Fairview territory.

On or about April 6 the president of the Pulaski County board notified the president of the Maries board by letter that since the assumption of jurisdiction of Maries was based on absentee ballots, Pulaski County intended to go ahead with the proposed state plan and would not recognize the alleged annexation to Maries. On April 21 the Dixon reorganization election (which took in Fairview) was held and the great preponderance of the vote was in favor thereof. The district was thereafter organized, and since such time Dixon has also assumed to exercise jurisdiction over the Fairview territory.

What we consider to be a preliminary question of law in this case is whether or not the chairman of the meeting (the Fairview election), or anyone else, for that matter, had any right to consider the so-called absentee ballots; for if absentee ballots can be cast at a common school district election, Connor could not have announced the election results until they also were counted, and relators' whole case would fall flat on its face at the very beginning. We recognize the rule that the office of mandamus is to execute, not to adjudicate. ¹ Nevertheless, in every mandamus case there are involved a duty and a right, and the coercion of the writ is dependent upon the existence of a duty which the courts must find to exist as a matter of law. Sometimes the question is so interwoven as to require extended discussion. ²

The casting of vote by absentee ballot at any election is not a matter of inherent right. It is a special privilege conferred and available only under certain conditions. Straughan v. Meyers, 268 Mo. 580, 187 S.W. 1159, 1164.

Section 112.010 provides that 'any person * * * who expects to be absent from the county * * * on the day of holding any special general or primary election at which any presidential preference is indicated or any candidates are chosen or elected, for any congressional, state, district, county, town, city, village, precinct or judicial offices or at which questions of public policy are submitted * * * may vote at such election as herein provided.'

It will be noted that in the enumeration therein set forth the words 'school districts' are conspicuous by their absence. Expressio unius est exclusio alterius. The question is whether the 'questions of public policy' apply only to the character of elections covered by the preceding enumeration or whether the legislative intent can be construed to reach out and gather in school elections on public policy, although quite obviously it would not extend to elections solely for school officers. In this connection we think the rule of ejusdem generis, or something analogous thereto, is applicable, and that the elections in regard to public policy should be restricted to the class of elections contained within the specific enumeration. ³

Section 4792, RSMo 1889, Section 111.010, RSMo 1949 (now Section 111.625, RSMo 1959, V.A.M.S.), provided for the exclusion of school districts from the more formal requirements in regard to conduct of elections in general, including the polls, ballots, poll books, booths, method of voting, et cetera. Obviously the legislature did not contemplate or intend that school elections belong in the same category as elections in general. The act of 1913 (Laws of 1913, p. 324) provided for absentee ballots to be voted at a general election, and then for only county, district, and state officers and for Members of Congress and presidental electors. The act of 1917 (Laws of 1917, p. 274) added primary elections but left the...