State v. Gordon

• Decision Date: 17 December 1910
• Citation: 133 S.W. 44,231 Mo. 547
• Parties: STATE ex rel. CARROLLTON SCHOOL DIST. NO. 1, TP. 53, R. 23, v. GORDON, State Auditor.
• Court: Missouri Supreme Court

133 S.W. 44

231 Mo. 547

STATE ex rel. CARROLLTON SCHOOL DIST. NO. 1, TP. 53, R. 23, v. GORDON, State Auditor.

Supreme Court of Missouri.

December 17, 1910.

1. MANDAMUS (§ 163) — ALTERNATIVE WRIT — WAIVER — DEMURRER.

Since the alternative writ in mandamus follows the petition, a demurrer to the petition amounts to a waiver of such writ and is equivalent to treating the petition as and for an alternative writ.

2. SCHOOLS AND SCHOOL DISTRICTS (§ 97) — REGISTRATION OF BONDS — "NEGOTIATED" — "OBTAIN VALIDITY."

Rev. St. 1909, § 1275, provides that before any school bond "shall obtain validity or be negotiated, such bond shall first be presented to the State Auditor, who shall register the same," etc. Held, that the term "obtain validity" meant to become clothed with validity as a present and subsisting obligation, and the term "negotiated" meant that the bonds should have been sold and put in circulation by delivery in consummation of the sale; and officers of a school district, after bonds have been voted, may advertise for bids and accept a hid for bonds before they have been registered by the State Auditor; and hence such acts of the officers furnish no reason for refusing registration.

3. COURTS (§ 102) — PRECEDENTS — DIVIDED COURT.

Where, by a division among the judges, the Supreme Court establishes a precedent for official action, and the state officers, deeming the adjudication wrong, withhold performance in accordance with the decision, the Supreme Court, in mandamus to compel the officers to act, will not indulge a pride of opinion, and peremptorily order performance, but will review its former holding with a view to the determination of its correctness.

4. CONSTITUTIONAL LAW (§ 48) — DETERMINATION OF CONSTITUTIONAL QUESTIONS.

Before holding a statute invalid, the court must be satisfied of its unconstitutionality beyond a reasonable doubt.

5. SCHOOLS AND SCHOOL DISTRICTS (§ 21) — STATUS OF "SCHOOL DISTRICT" AS CORPORATION.

A "school district" is not a municipal corporation, but is a quasi public corporation, devoted to the single purpose of building school-houses, furnishing the same, hiring teachers, levying taxes to support schools, incurring debts, and issuing bonds to further the purposes of taxation.

6. SCHOOLS AND SCHOOL DISTRICTS (§ 97) — ISSUING BONDS — SUBMISSION OF PROPOSITION — SINGLE SUBJECT.

A proposition submitted to the people of a school district to issue bonds, to purchase a site for a new school building, to erect a building thereon, provide furniture and a heating plant therefor, to provide heating plants for old school buildings, to purchase a site, erect a school building, and furnish the same for negroes, and to divide the proposed loan among the different objects, submits to the voters of the district a single proposition.

7. SCHOOLS AND SCHOOL DISTRICTS (§ 97) — ISSUING BONDS — SUBMISSION OF PROPOSITION — SINGLE SUBJECT.

The proposition is not rendered double by uniting proposed expenditures for white children with those for negro children, although Const. art. 11, § 3 (Ann. St. 1906, p. 297) provides that separate free schools shall be established for the education of negro children, and Rev. St. 1899, §§ 9774, 9775 (Ann. St. 1906, p. 4485) provide for the establishment of separate schools for negro children, as the Constitution, art. 11, § 1 (Ann. St. 1906, p. 296) provides that the General Assembly shall establish and maintain free public schools for the "instruction of all persons of this state, between the ages of six and twenty years."

8. SCHOOLS AND SCHOOL DISTRICTS (§ 97) — BONDS — STATEMENTS AS TO PURPOSE.

School district bonds were voted to purchase sites for school buildings, one for white children and another for negroes, to erect and furnish schoolhouses on both sites, and to purchase heating plants for old buildings. The form adopted by the board for the proposed bonds stated that the bonds were issued for the purpose of purchasing sites, erecting school buildings, and furnishing same. Rev. St. 1899, §§ 9752-9754 (Ann. St. 1906, pp. 4472-4474) and Laws 1901, p. 52 (Ann. St. 1906, § 5157) now Rev. St. 1909, § 1249, provide that such bonds shall contain statements as to the date, amount, date payable, rate of interest, and whether payable to order or bearer, etc. Held, that there was a sufficient statement of the purpose for which the bonds were issued.

9. SCHOOLS AND SCHOOL DISTRICTS (§ 97) — BONDS — PURPOSE FOR WHICH ISSUED — "FURNITURE."

Under Rev. St. 1899, § 9752 (Ann. St. 1906, p. 4472), authorizing school districts to issue bonds "for the purpose of erecting schoolhouses and furnishing the same," a district may issue bonds for the purpose of providing a heating plant for an old school building, as a heating plant comes within the meaning of the term "furniture," and the statute does not confine the power of the district to furnishing new schoolhouses, but under such provision they may furnish old schoolhouses.

Valliant, J., dissenting.

In Banc. Mandamus by the State on the relation of Carrollton School District No. 1, Township 53, Range 23, to compel J. P. Gordon, State Auditor, to register certain school bonds. Absolute writ granted.

Lozier, Morris & Atwood, for relator. E. W. Major, Atty. Gen., and Chas. G. Revelle and Jas. T. Blair, Asst. Attys. Gen., for respondent.

LAMM, J.

The State Auditor refuses to register and visé certain school bonds of the Carrollton school district. Relator sues by mandamus to compel him to do so.

Waiving an alternative writ, the State Auditor, through our learned Attorney General, enters his voluntary appearance and, carrying all his eggs in one basket, rests the case on a demurrer to the petition. In strict practice, issues of fact or law are framed on the narrations of the alternative writ in mandamus and a return, raising questions of law or fact. But since the alternative writ follows the petition, the waiving of such writis, ex gratia, equivalent to treating the petition as and for an alternative writ, and, in such event, to raise an issue at law on the petition itself is not without precedent. State ex rel. v. McIntosh, 205 Mo., loc. cit. 593, 103 S. W. 1078.

The petition covers 29 pages of print, and though the demurrer is general as well as special, the points and range of argumentation in the briefs so restrict the case made as not to call for the reproduction here of all its verbiage. Summarized, it appears therefrom that relator, by its board of directors, on April 9, 1909, made an order submitting to the qualified voters of the district a proposition to create a district indebtedness by issuing $50,000 in bonds for the purpose of purchasing a site for a new school building, erecting a building thereon, provide furniture and a heating plant for such new building, provide heating plants for old school buildings, and purchase a site, erect a new school building thereon, and furnish the same for the negroes; the proposed division of the proceeds of the loan to be as follows: $10,000 to purchasing a site, erecting a building, and furnishing the same for the negroes; $15,000 to purchasing a site for a new school building, and to provide furniture and heating plant for such new building, and heating plants for the old school building; and $25,000 to erecting a new school building on said last-mentioned site. The bonds were to be of the denomination of $500, 5-20s, interest payable semiannually at 4 per cent. evidenced by coupons. The order provided for a notice of a special election, treated the proposition as one subject, and required those voting for it, that is, for the loan of $50,000, should have written or printed on their ballots. "For the loan," those voting contra, "Against the loan." The secretary was directed to make publication of the notice in two named newspapers and to post notices at five public places in the district for 15 days prior to the election calling a special election of qualified voters for April 27, 1909. At a subsequent meeting, the board chose judges and clerks, and it appears the notices required by the first order were duly posted and published in obedience to the order; said notices showing its terms and also treating the proposition as single. The school records further show that in due time afterwards, to wit, on May 4, 1909, the returns of the election were presented to the board as certified by the judges and clerks, showing 687 votes cast, of which 467 voted "for the loan" and 216 "against the loan." Thereupon the board canvassed the returns and, declaring the proposition carried by more than a two-thirds vote, ordered the bonds issued to bear date August 1, 1909, to conform to the provisions of the notice, and a tax was ordered levied and certified to pay the interest and create a sinking fund. Subsequently an advertisement was ordered asking for bids. Bids coming in for 97½ cents of the par value, they were rejected as unsatisfactory. Subsequently, in September, 1909, a new advertisement was ordered for bids. Subsequently it appears from the records that advertisement was made and bids received, among them, one from the W. R. Compton Bond & Mortgage Co., of St. Louis, offering $47,535 and accrued interest, and agreeing to print the bonds. This bid was accepted and the bonds ordered issued, when that company was satisfied of their legality. Subsequently, on February 12, 1910, the board met to work out the details of the bond issue. It then passed a resolution narrating the original order for the special election, the vote on the proposition, the issue of $50,000 in bonds to provide funds to purchase sites, erect school buildings, etc.; that due notice of the election was given by posting five notices in five public places in the district for more than 15 days prior to the election; that the election was held on the date called, the result duly canvassed, etc., and declared to be in favor of the loan and for the issuance of the bonds; that, including said...