State v. Lamar

Citation291 S.W. 457
Decision Date15 February 1927
Docket NumberNo. 27404.,27404.
PartiesSTATE ex inf. GENTRY, Atty. Gen., v. LAMAR et al. School District No. 1 of Texas County. On relator's motion for judgment on the pleadings. Writ denied, and proceeding dismissed.
CourtUnited States State Supreme Court of Missouri

North T. Gentry, Atty. Gen. (Robert L. Lamar, of Mountain Grove, of counsel), for relator.

Hiett, Lamar & Covert, of Houston, for respondents.

GANTT, J.

Information in quo warranto filed in this court to oust respondents from office as directors of alleged consolidated school district, designated as "consolidated school district No. 1, of Texas county, Mo." Respondents filed return.

The case is submitted on relator's motion for judgment on the pleadings. The validity of the organization of the district is questioned, and the facts determined from the pleadings are as follows:

The resident citizens of the community in which the city of Houston, in the county of Texas, is located, under authority of section 11259, R. S. 1919, as amended (Laws 1921, p. 654), filed on the 15th day of March, 1926, with the county superintendent of schools for said county, a petition, signed by at least 25 qualified voters of said community, praying for the formation of a consolidated school district in said community. The county superintendent, on the 15th day of April, 1926, called a special meeting of all the qualified voters of said community to be held in the city of Houston on the 30th day of April, 1926, at 2 p. m., to consider the question of consolidation. The special meeting was held at said time and place, the qualified voters of the proposed district voted on the question of consolidation, and the election resulted in the casting of 179 ballots for consolidation and the casting of 141 against consolidation. The respondents were duly elected directors of said district, possess the necessary qualifications, and within four days after their election duly qualified and organized by electing officers. All of the requirements of the statute for holding the election and organizing the district were literally complied with by the county superintendent, except he did not post the notices and plats within the proposed district calling for a special meeting of all the qualified voters of the proposed district within 30 days after the filing of the petition. However, it is admitted that the voters of the proposed district were not misled or deceived on account of the failure of the county superintendent to post the notices and plats within 30 days. And it is further admitted that the vote cast at said special meeting was much larger than the combined vote cast at the annual school meeting of all the territory included in the boundaries of said proposed district. The proposed district contained 50 square miles in area, but did not have an enumeration of 200 children of school age, and did not include within its territory any town or city district at the time of its organization which had by the last enumeration 500 children of school age.

By the pleadings and the briefs our attention is directed to two questions for solution.

I. The statute directs the superintendent to call the election within 30 days after the filing of the petition. Section 11259, R. S. 1919, as amended (Laws 1921, p. 654). He made the call on the 15th day of April. To comply with the statute he should have made the call not later than the 14th day of April, 1926. Relator contends, this delinquency invalidates the election. Was this requirement mandatory or directory? In this case it is admitted the voters were given the 15 days' notice required by the statute, the notices and plats posted were sufficient as to number, form, and substance, the election was regular in all respects, and by the number of votes cast we know the election resulted in a full expression of the voters of the proposed district on the question submitted. This was all the Legislature intended to be accomplished by the act. Having thus concluded, we have answered the above question. The requirement is directory. It is made "with a view merely to the proper, orderly and prompt conduct of the business," and the superintendent should have made the call within the 30 days, but his failure to do so does not, on this record, invalidate the election.

In an early case and on a similar question, we ruled as follows:

"It is rule of construction that 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 merely, 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 as a limitation of the power of the officer. People v. Allen, 6 Wend. [ (N. Y.) 486]; Jackson v. Hooker [Jackson ex dem. Hooker v. Young] 5 Cow. [N. Y.] 269 ; [Pond v. Negus] 2 Mass. 230 . There was nothing in the nature of the power of appointment showing that it might not be as effectually exercised after the first term of the court as before. There is no prohibition that it shall not be exercised afterwards. It would be strange if a statute specifying an early day at which an act must be done with a view to its speedy execution, should be construed that the act could not be done at all after the day when the necessity for its performance is as great, if not greater, afterwards than before. If the court had failed to make the appointment in the term time, the clerk could have made it; but clearly when the court convened again, the power of appointment in the clerk was suspended." St. Louis County Court v. Sparks, 10 Mo. 117, loc. cit. 122, 45 Am. Dec. 355....

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