Opinion
No. 44689.
November 14, 1955. Rehearing Denied, December 12, 1955.
Action to enjoin the collection of a school tax levy. Said tax for building purposes voted by a majority but less than a two-thirds majority was valid. The trial court properly dismissed the petition. Eager, J., dissenting, holds that the tax was invalid.
1. SCHOOLS AND SCHOOL DISTRICTS: Taxation: Constitutional Law: School Tax Valid. The school tax for building purposes voted by a majority but less than a two-thirds majority was valid.
EAGER, J., dissenting.
2. SCHOOLS AND SCHOOL DISTRICTS: Taxation: Constitutional Law: School Tax Invalid. The school tax for building purposes voted by a majority but less than a two-thirds majority was invalid.
Appeal from Lewis Circuit Court; Hon. Tom B. Brown, Judge.
AFFIRMED.
J. Andy Zenge, Jr., J. Patrick Wheeler and Rendlen Rendlen for appellants.
(1) Petition does state cause of action for injunctive relief. Berghorn v. Reorganized School Dist. No. 8, Franklin County, 260 S.W.2d 573; 43 C.J.S. 844 et seq. No. 181b. (2) The words "For school purposes" as used in connection with school tax levy means annual expenditures as are necessary to conduct or maintain school for school year and does not include building of new building or class rooms. Hudgins v. Mooresville Consolidated School Dist., 312 Mo. 1, 278 S.W. 769; Peter v. Kaufmann, 327 Mo. 915, 38 S.W.2d 1062; Harrington v. Hopkins, 288 Mo. 1, 231 S.W. 263; Jacob v. Cauthorn, 293 Mo. 154, 238 S.W. 443; State ex rel. Marlowe v. Himmelberger-Harrison Lumber Co., 332 Mo. 379, 58 S.W.2d 750; Russell v. Frank, 348 Mo. 533, 154 S.W.2d 63. (3) Rule is firmly settled that adoption in later constitution of words and context of another, which had been construed by court of last resort, is presumed (in absence of contrary intention) to have been done to give the adopted words their adjudicated meaning. Ludlow-Saylor Wire Co. v. Wollbrinck, 275 Mo. 339, 205 S.W. 196; Sanders v. St. Louis New Orleans Anchor Line, 97 Mo. 26, 10 S.W. 595. (4) A constitutional convention, at the time it redrafts a section of the constitution is presumed to have known of the construction given the section by the courts. Moore v. Brown, 350 Mo. 256, 165 S.W.2d 657; State ex rel. Board of Control of St. Louis School and Museum of Fine Arts v. St. Louis, 216 Mo. 47, 115 S.W. 534. (5) In construction of Constitution courts will give effect to all words and phrases in Constitution, rather than disregard part thereof. State ex rel. Crow v. Hostetter, 137 Mo. 636, 39 S.W. 270; State ex inf. McKittrick v. Williams, 346 Mo. 1003, 144 S.W.2d 98; State ex rel. Crutcher v. Koeln, 332 Mo. 1229, 61 S.W.2d 750; State ex rel. Russell v. State Highway Commission, 328 Mo. 942, 42 S.W.2d 196; State ex rel. Moore v. Toberman, 363 Mo. 245, 250 S.W.2d 701. (6) The phrase "for public school purposes" as used in Article IX, Section 5, Constitution, 1945, defines the state fund to which the section applies. (7) The state public school fund is controlled by Secs. 161.180-161.300 RSMo 1949. (8) Apart from the funds obtained by local taxation for schools, there are two sources of money for the support of public schools by the State of Missouri, viz.: (1st) "Appropriations by the state for the support of free public schools, and (2nd) the income from the public school fund" which are "distributed according to law." Art. IX, Sec. 3(a), Missouri Constitution, 1945. (9) And the funds cannot be diverted to other purposes. McVey v. Hawkins, 258 S.W.2d 927. (10) At least 25% of the state revenue must be appropriated for public schools. Art. IX, Sec. 3(b), Constitution, 1945. (11) The state support of public schools is provided by the statutes. Secs. 161.010-161.170, RSMo 1949. (12) The Legislature defined "school purposes" as "teachers' wages and incidental expenses." Sec. 161.040 (1), RSMo 1949. Also see Senate Bill No. 3, 68th General Assembly. (13) And "maintenance" as "including only teachers' wages and incidental expenses". Sec. 161.050, RSMo 1949. (14) The provisions of Art. IX, Constitution, 1945, are on a different subject matter than the provisions of Art. X, Constitution, 1945. But by interpretations of this court and the Legislature, the phrase "for school purposes" does not include building new school buildings. (15) State aid on new buildings in enlarged school districts as provided in Sec. 165.697 V.A.M.S. has nothing to do with the raising of money in school districts. State ex rel. v. Holmes, 360 Mo. 904, 231 S.W.2d 185.
Boyle G. Clark and Raymond C. Lewis, Jr., for respondents; Clark Becker of counsel.
(1) The trial court correctly sustained respondents' motions to dismiss for failure to state a cause of action for the reason that under Section 11(c), Article X, Constitution of Missouri, as adopted in 1950, only a simple majority vote is needed to pass the tax levy in question; a simple majority vote is sufficient for the following reasons: Section 11 (c), Article X, Constitution of Missouri as adopted in 1950, expressly provides by clear language that a simple majority vote is sufficient to pass such a tax levy. (2) No contrary judicial construction of the term "school purposes" has ever been made by the courts of Missouri. (3) Even if the court should view appellants' cases as containing a contrary construction of Section 11, Article X, of the Constitution of 1875, the passage of the intervening constitutional provision of 1945, and the passage of the present provision in 1950, indicate an intention not to be bound by such prior construction, if any. (4) The construction placed upon the present Section 11 (c), Article X, by the Legislature and by the school districts of this state indicates that a simple majority vote is sufficient for such a tax levy. (5) The court should not construe Section 11 (c), Article X, in a manner to work hardship and confusion, when a reasonable construction is possible. 56 C.J., Schools and School Districts, p. 672, sec. 78; State ex rel. Randolph County v. Walden, 357 Mo. 167, 206 S.W.2d 979; Folk v. City of St. Louis, 250 Mo. 116, 157 S.W. 71; Harrington v. Hopkins, 288 Mo. 1, 231 S.W. 263; Missouri Utilities Co. v. City of California, 8 F. Supp. 454; Levin v. United States, 128 F. 826; Gantt v. Brown, 244 Mo. 271, 149 S.W. 644; State ex rel. Jamison v. St. Louis-S.F. Ry. Co., 318 Mo. 285, 300 S.W. 274; St. Louis-S.F. Ry. Co. v. Gracy, 126 Mo. 472, 29 S.W. 579; United States v. Brunett, 53 F.2d 219; 79 C.J.S., Schools and School Districts, p. 163, sec. 380(2); Sec. 11, Art. X, Constitution of Missouri of 1875; Sec. 11(c) Art. X, Constitution of Missouri of 1945; Sec. 11(c), Art. X, Constitution of Missouri as adopted in 1950 (RSMo 1953 Supp.). Sec. 9364, RSMo 1899; Sec. 165.080, RSMo 1949; Section 165.080, as repealed and reenacted in 1951 (RSMo 1953 Supp.). (6) The trial court correctly sustained respondents' motions to dismiss for the reason that appellants' petition disclosed upon its face that it failed to state facts upon which relief could be granted. Sec. 509.300, RSMo 1949. (7) The majority opinion erred in holding that the term "School Purposes," as used in Section 11(c), Article X, Constitution of Missouri as amended in 1950, does not include building purposes, for the reason that the term "School Purposes" is used throughout the educational statutes of Missouri in a general manner indicative of a broad meaning encompassing all reasonable and necessary purposes of a public school system. Sec. 161.080, RSMo (Cum. Supp. 1953); Sec. 165.063, RSMo (Cum. Supp. 1953); Secs. 165.013, 165.017, 165.020, 165.023, 165.027, 165.133, 165.150, 165.350, 165.403, 165.453, 165.477, 165.487, 165.513, 165.517, 165.520, 165.543, 165.563, 165.580, 165.593, 165.637, RSMo 1949; Sec. 165.638, RSMo (Cum. Supp. 1953); Sec. 165.720, RSMo (Cum. Supp. 1953); Secs. 166.010, 161.040, RSMo 1949; Senate Bill No. 3, 68th General Assembly (1955); Sec. 11, Art. X, Constitution of Missouri 1875; Sec. 11(c), Art. X, Constitution of Missouri 1945; Sec. 11(c), Art. X, Constitution of Missouri, as amended in 1950; Harrington v. Hopkins, 288 Mo. 1, 231 S.W. 263. (8) The majority opinion erred in holding that the term "School Purposes," as used in Section 11(c), Article X, Constitution of Missouri as amended in 1950, does not include building purposes, for the reason that the use of the term "School Purposes" in Section 5, Article IX, Constitution of Missouri, 1945, indicates that said term has a broader meaning encompassing all reasonable and necessary needs of a public school system. Sec. 5, Art. IX, Constitution of Missouri 1945; Sec. 6, Art. XI, Constitution of Missouri of 1875; State ex rel. Clark v. Gordon, 261 Mo. 631, 170 S.W. 892; Sec. 11, Art. X, Constitution of Missouri of 1875; Sec. 11(c), Art. X, Constitution of Missouri 1945. (9) The majority opinion erred in holding that under the present Section 11(c), Article X, Constitution of Missouri, as amended in 1950, a tax levy cannot be passed for school building purposes by a simple majority vote in this to wit: the majority opinion fails to recognize and follow the established rule of judicial construction which provides that in cases of ambiguity or doubt the courts shall take judicial notice of, and give great weight to, the construction placed upon the provision in question by the legislative, executive and administrative bodies of the state. Folk v. City of St. Louis, 250 Mo. 116, 157 S.W. 71; Gantt v. Brown, 244 Mo. 271, 149 S.W. 644; Missouri Utilities Co. v. City of California, 8 F. Supp. 454; State ex rel. City of Carthage v. Hackmann, 287 Mo. 184, 229 S.W. 1078; 16 C.J.S., Constitutional Law, sec. 33, pp. 72-74, and the many note cases cited thereunder; 11 Am. Jur., Constitutional Law, sec. 78, p. 697; Sec. 11 (c), Art. X, Constitution of Missouri, as amended in 1950; Sec. 165.080, RSMo (Cum. Supp. 1953). (10) The majority opinion erred in holding that under the present Section 11(c), Article X, Constitution of Missouri, as amended in 1950, the term "School Purposes" does not include school building purposes, for the reason that the majority opinion fails to recognize and follow the established rule of judicial construction which provides that a construction that will work mischief and confusion should never be given a constitutional provision unless no other reasonable construction is possible. State ex rel. Jamison v. St. Louis-S.F. Ry. Co., 318 Mo. 285, 300 S.W. 274; State ex rel. Moore v. Toberman, 363 Mo. 245, 250 S.W.2d 701; 56 C.J., Schools and School Districts, sec. 780, p. 672; 79 C.J.S., Schools and School Districts, sec. 380 (2), p. 163; St. Louis-S.F. Ry. Co. v. Gracy, 126 Mo. 472, 29 S.W. 579; Sec. 11(c), Art. X, Constitution of Missouri, as amended in 1950. (11) The majority opinion erred in failing to recognize that under Section 11(c), Article X, Constitution of Missouri, as amended in 1950, it is the time which a levy can continue and the amount which can be raised, rather than the purpose of the levy, which determines whether a simple majority or a two-thirds vote is required; and further erred in holding that such construction would render "surplusage" the term "school purposes" as used in said Section 11(c). Sec. 11(c), Art. X, Constitution of Missouri, 1945; Sec. 11(c), Art. X, Constitution of Missouri, as amended in 1950; Sec. 26(a), Art. VI, Constitution of Missouri, 1945; Sec. 26 (b), Art. VI, Constitution of Missouri, as amended in 1952; Pullum v. Consolidated School Dist. No. 5, Stoddard County, 357 Mo. 858, 211 S.W.2d 30; Secs. 165.040, 108.010, 137.065, RSMo 1949. (12) The majority opinion erred in finding a judicial construction of the term "school purposes" in cases which clearly, and often expressly, indicated that no construction was effected or intended. Harrington v. Hopkins, 288 Mo. 1, 231 S.W. 263; State ex rel. Brown v. Wabash, St. L. Pac. Ry. Co., 83 Mo. 395; Peter v. Kaufmann, 327 Mo. 915, 38 S.W.2d 1062; Russell v. Frank, 348 Mo. 533, 154 S.W.2d 63; Hudgins v. Mooresville Consol. Sch. Dist., 312 Mo. 1, 278 S.W. 769; Jacobs v. Cauthorn, 293 Mo. 154, 238 S.W. 443; State ex rel. Setzer v. Wabash, St. L. Pac. Ry. Co., 90 Mo. 166; 56 C.J., Schools and School Districts, sec. 780, p. 672; Sec. 11, Art. X, Constitution of Missouri of 1875. (13) That such rule of construction does not and should not apply to classifications contained in earlier constitutions after there have been intervening provisions not containing the term or provision in question. Ludlow-Saylor Wire Co. v. Wollbrinck, 275 Mo. 339, 205 S.W. 196; State ex inf. Norman v. Ellis, 325 Mo. 154, 28 S.W.2d 363; State ex inf. Rice ex rel. Allman v. Hawk, 360 Mo. 490, 228 S.W.2d 785; 16 C.J.S., Constitutional Law, sec. 35, p. 76; Sec. 11, Art. X, Constitution of Missouri of 1875; Sec. 11(c), Art. X, Constitution of Missouri, 1949; Sec. 11(c), Art. X, Constitution of Missouri, as amended in 1950. (14) The majority opinion erred in holding that under Section 11(c), Article X, Constitution of Missouri, as amended in 1950, the term "school purposes" does not include the building of school buildings and classrooms. 56 C.J., Schools and School Districts, sec. 780, p. 672; 79 C.J.S., Schools and School Districts, sec. 380(2), p. 163.
This is an action seeking to declare a school tax levy void and to enjoin its collection. Defendants' motions to dismiss plaintiffs' petition were sustained and plaintiffs have appealed. This case was consolidated for argument on appeal with the case of Alfred Rathjen, et al., v. Reorganized School District R-II et al., No. 44,787, 365 Mo. 518, 284 S.W.2d 516.
The relators are residents and taxpayers of the defendant school district. Their petition alleges that at the annual school election held on April 6, 1954, a proposition was submitted to authorize the levy of a tax rate of one dollar on the hundred dollars assessed valuation for the construction of new and additional classrooms in the school district; that more than a majority but less than two-thirds of the ballots and votes cast were in favor of levying the tax proposed; that "under the provisions of Article X, Section 11, of the Constitution of Missouri, 1945, as amended and the provisions of the Revised Statutes of Missouri, applicable thereto, the levy of One Dollar ($1.00) on the One Hundred Dollars ($100.00) valuation for building purposes could not be made by the defendant school district and board of education unless and until such levy had been voted by two thirds (2/3rds) majority of the qualified resident, taxpaying voters in said school district voting in said election"; that defendant members of the Board of Education declared and certified that proposed tax rate was approved and adopted and that said tax rate has been extended and would be collected and disbursed for the construction of new and additional classrooms unless it be declared void and its collection be enjoined.
Defendants' motions to dismiss alleging that the petition failed to state a claim upon which relief could be granted were sustained, and after an unavailing motion to set aside the court's order of dismissal this appeal was taken.
The legal question involved is the same as presented in the case of Alfred Rathjen, et al., v. Reorganized School District R-II of Shelby County, Missouri, et al., No. 44,787, 365 Mo. 518, 284 S.W.2d 516, and for the reasons given in the opinion this day filed in that case the judgment herein should be affirmed and it is so ordered. Leedy, C.J., Hollingsworth and Hyde, JJ., concur; Eager, J., dissents in separate opinion; Westhues, J., and Ruark, Special Judge, dissent, and concur in separate dissenting opinion of Eager, J.
Pursuant to stipulation this case was consolidated on appeal with the case of Albert Rathjen, et al., Respondents vs. Reorganized School District R-II of Shelby County, Missouri, et al., Appellants, No. 44,787, 365 Mo. 518, 284 S.W.2d 516, which is an appeal from the Circuit Court of Shelby County. The opinions have now been filed in the latter case, after a rehearing, and, since the cases involve the same question, no opinion on the merits need be written in the present case. Appellants will be referred to herein as plaintiff-relators and respondents will be referred to as defendants.
The suit is one seeking, by injunction, to declare a certain school levy increase to be void. The trial court sustained motions to dismiss the petition. The facts, as pleaded in the petition, are as follows: The plaintiff-relators (three of whom later withdrew, by leave) are residents and taxpayers of the defendant school district; on April 6, 1954, pursuant to notice, the annual school election was held in the defendant school district, at which election two propositions were submitted to the qualified voters as follows: (1) A levy increase of eighty-five cents on the hundred dollar valuation for "school purposes," in addition to the one dollar which might be levied by the Board without voter approval; and (2) a levy of one dollar on the hundred dollar valuation "for Building Purposes (Building Fund for building classrooms). This levy for one year"; that on proposition (2) above, namely, the Building Fund levy, there were 406 affirmative votes and 363 negative votes, constituting a majority of less than two-thirds; that in fact the building fund levy was sought for the purpose of building new classrooms; that the defendant School District and the defendant members of the Board of Education thereupon certified that the building fund levy had been approved, and adopted and caused a levy to be made accordingly upon all real and personal property in the district; that the defendant County Collector extended said levy upon the tax books of the county and was "about to" collect the tax; that the Board of Education had entered into a contract with the defendant construction company which defendant was "about to" begin the construction of new classrooms. The petition further alleged that the aforesaid building fund levy, and all subsequent acts pursuant thereto, was void and of no effect because it had not received the approval of two-thirds of the qualified voters voting in the election in question, as required by Article X, § 11 of the Constitution of Missouri, 1945, as amended, and by the Revised Statutes of Missouri. Plaintiff-relators asked permanent injunctions against all defendants prohibiting them, individually and collectively, from taking any action to enforce the said one dollar building fund levy and from collecting or attempting to collect the tax. They also sought a declaration that the levy and tax were void and unenforceable. All defendants except the County Collector filed motions to dismiss, in substance alleging that the petition failed to state a claim upon which relief could be granted because, as a matter of law, only a "simple majority" of the qualified voters was required for the approval of this levy under the Constitution and Statutes of Missouri. The Circuit Court sustained the motions to dismiss, and after an unavailing motion to set aside this order and reinstate the petition, plaintiff-relators appealed.
The legal questions involved herein have been fully considered by this Court in the majority and dissenting opinions now filed in the case of Alfred Rathjen, et al., Respondents vs. Reorganized School District R-II of Shelby County, Missouri, et al., Appellants, No. 44,787, 365 Mo. 518, 284 S.W.2d 516. For the reasons stated in the dissenting opinion therein the writer feels that the order of the Circuit Court in the present case should be reversed and the cause remanded for further proceedings. Westhues, J., and Ruark, Special Judge, concur in the foregoing dissenting opinion.