State ex rel. Rogersville Reorganized School Dist. No. R-4, of Webster County v. Holmes

• Decision Date: 18 December 1952
• Docket Number: R-4,43405,OF,Nos. 43404,s. 43404
• Citation: 253 S.W.2d 402,363 Mo. 760
• Parties: STATE ex rel. ROGERSVILLE REORGANIZED SCHOOL DISTRICT NO.WEBSTER COUNTY v. HOLMES, State Auditor. STATE ex rel. REORGANIZED SCHOOL DISTRICT NO. 5, OF WASHINGTON COUNTY v. HOLMES, State Auditor.
• Court: Missouri Supreme Court

Page 402

253 S.W.2d 402

363 Mo. 760

STATE ex rel. ROGERSVILLE REORGANIZED SCHOOL DISTRICT NO.

R-4, OF WEBSTER COUNTY v. HOLMES, State Auditor.

STATE ex rel. REORGANIZED SCHOOL DISTRICT NO. 5, OF WASHINGTON COUNTY v. HOLMES, State Auditor.

Nos. 43404, 43405.

Supreme Court of Missouri, en Banc.

Dec. 18, 1952.

Robert B. Fizzell and Robert B. Fizzell, Jr., of Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for relator.

J. E. Taylor, Atty. Gen., Richard F. Thompson, Asst. Atty. Gen., for respondent.

HOLLINGSWORTH, Judge.

These cases came to the writer on reassignment. Each is an original proceeding in mandamus brought by the relator as a reorganized school district to compel the State Auditor to register and certify as valid, under the provisions of Section 108.240 RSMo 1949, V.A.M.S., certain school bonds issued by it and which it now desires to sell, to-wit:

(a) In the instance of relator Rogersville Reorganized School District No. R-4, of Webster County, Missouri, bonds in the principal amount of $40,000, all dated March 1, 1952; and

(b) In the instance of relator Reorganized School District No. 5, of Washington County, Missouri, bonds in the principal amount of $25,000, all dated May 1, 1952.

The State Auditor refuses to register and certify as valid the bonds of both relators upon the sole ground that neither of them is lawfully organized under the law enacted in 1947 authorizing the reorganization of school districts, Sections 165.657 to 165.707 RSMo 1949, V.A.M.S. His contention is based upon the admitted failure of each relator to comply with a certain provision of the law. These provisions are different, yet they are of the same general import and present essentially the same issue: whether in the process of the organization of each relator, its failure to comply with a provision of a time schedule set forth in the law rendered its attempted organization invalid. It is admitted that if the respective provision of the schedule with which each relator failed to comply is mandatory, then its bonds are not subject to registration and certification as valid; but that, if the provision is directory only, then its bonds are entitled to registration and certification.

The reorganization law became effective July 18, 1948. Its purpose was to promote the rapid merger of the multitude of small, inadequately equipped and financed school districts of this State into fewer and larger districts with financial resources to provide adequate buildings, teaching staffs and equipment. To give impetus to the movement and to impress its urgency upon the officials charged with effectuating it, the act sets forth a time schedule within which each of the procedures therein provided is to be taken. Insofar as pertinent, these provisions, briefly summarized, are:

(a) Within sixty days after the act becomes effective, the county superintendent of schools shall call a meeting of the directors of the school districts in his county for the purpose of electing a county board of education. Sec. 165.657.

(b) Within four days after its election, the county board of education shall meet, elect a president, and take the oath of office. Sec. 165.660.

(c) Within six months after its organization the county board of education shall make or cause to be made and completed a comprehensive study of each school district of the county and prepare a plan of reorganization. Sec. 165.673(1).

(d) Upon completion of the comprehensive study, but not later than May 1, 1949, the county board shall submit to the state board of education a specific plan for the reorganization of the school districts of the county. Sec. 165.673(2). (It is the time element of this provision that involves the validity of Rogersville Reorganized School District No. R-4, of Webster County.)

(e) Within sixty days following receipt of the plan, the state board of education shall convey to the secretary of the county board its approval or disapproval of the plan. Sec. 165.677.

(f) If the plan is disapproved by the state board, the county board shall have sixty days to prepare a new plan and return it to the state board. Sec. 165.677.

(g) If the second plan is disapproved by the state board, the county board is required to propose and submit its own plan to the voters on the first Tuesday in November, 1949. Sec. 165.677.

(h) Within sixty days after the receipt of approval by the state board of the reorganization plan, the secretary of the county board of education shall call an election in each proposed enlarged school district to vote on the proposition of forming the enlarged district. Sec. 165.680.

(i) If the first election results in the disapproval of the plan submitted, the county board of education shall prepare another plan and submit the same to the voters not sooner than one year nor later than two years after the disapproval of the first plan. Sec. 165.693. (It is the time element of this provision that involves the validity of Reorganized School District No. 5 of Washington County.)

In the organization of the Rogersville District (Case No. 43404), its only noncompliance with the time schedule set forth in the act was its failure to submit its plan of reorganization to the state board of education not later than May 1, 1949, as required by Par. (2) of Sec. 165.673. It did submit its plan to the state board on February 1, 1950, and the plan was thereafter duly approved by the board and adopted by the voters.

In the organization of Reorganized School District No. 5, of Washington County (Case No. 43405), its only non-compliance with the time schedule set forth in the act was its failure to submit its second plan of reorganization (the first one having failed of adoption) to a vote not 'later than two years after the date of disapproval of the first plan', as required by Sec. 165.693. It was submitted to a vote and the election adopting it was held two years and five days after the first election.

In determining whether either of the provisions of the schedule with which each relator failed to comply is mandatory or directory, the "prime object is to ascertain the legislative intention as disclosed by all the terms and provisions of the act in relation to the subject of legislation and the general object intended to be accomplished. Generally speaking, those provisions which do not relate to the essence of the thing to be done and as to which compliance is a matter of convenience rather than substance are directory, while the provisions which relate to the essence of the thing to be done, that is, to matters of substance, are mandatory.' 25 R.C.L. Sec. 14 pp. 766, 767.' State ex rel. Ellis v. Brown, 326 Mo. 627, 33 S.W.2d 104, 107.

'As a general rule, a statute which regulates the manner in which public officials shall exercise the power vested in them, will be construed as directory rather than mandatory, especially where such regulation pertains to uniformity, order, and convenience, and neither public nor private rights will be injured or impaired thereby. If the statute is negative in form, or if nothing is stated regarding the consequence or effect of non-compliance, the indication is all the stronger that it should not be considered mandatory.' Crawford's Statutory Construction, 1st Ed., 1940, Sec. 266, pp. 529, 530. See also State ex inf. McAllister ex rel. Lincoln v. Bird, 295 Mo. 344, 351-352, 244 S.W. 938, 939.

'For the reason that individuals or the public should not be made to suffer for the dereliction of public officers, provisions regulating the duties of public officers and specifying the time for their performance are in that regard generally directory. A statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered a limitation of the power of the officer.' 3 Sutherland, Statutory Construction, 3rd Ed., 1943, p. 102. See also St. Louis County Court v. Sparks, 10 Mo. 117; State ex inf. Gentry v. Lamar, 316 Mo. 721, 725, 291 S.W. 457, 458; State ex rel. Acom v. Hamlet, Mo.Sup., 250 S.W.2d 495.

The object and purpose of the law is to effect a general reorganization of the school districts of this State. It should be liberally construed to the end that its ultimate objective may be attained. State ex rel. Acom v. Hamlet, supra, 250 S.W.2d loc.cit. 498. And especially should this be done where no contention is made that any public or private right has been impaired or injured by mere tardiness of action.

It is readily apparent that the schedule was placed in the law primarily because the Legislature deemed a general reorganization of the school districts of this State to be of urgent need. But it was the need that prompted the urgency. No suggestion is made that the need became any the less subsequent to expiration of the schedule. Surely, therefore, the Legislature did not intend that a belated or tardy compliance with either of these two provisions of the schedule would be construed to defeat the end of be accomplished when both are so clearly intended...