Opinion
No. 43218.
June 8, 1953. Motion for Rehearing or to Transfer to Court en Banc Denied July 13, 1953.
APPEAL FROM THE CIRCUIT COURT OF SCOTLAND COUNTY, WALTER A. HIGBEE, J.
John B. Smoot, Pros. Atty. of Scotland County, Memphis, Roy Hamlin, Hannibal, White Partee, Hannibal, for appellants.
James Glenn, Macon, A. L. Luther, Memphis, H. M. Jayne, Memphis, for respondents.
Three quo warranto actions, to oust from office the directors of Reorganized School Districts R-3, R-4 and R-5, Scotland County, were consolidated below. The actions involved the validity of a school election held in each of the districts on February 21, 1952, under the provisions of the 1947 school district reorganization law, Sections 165.657-165.707. (All references are to both RSMo 1949 and V.A.M.S. unless otherwise indicated.) The trial court found for respondents. Relators' appeal is properly here was titles to offices "under this state" are involved. Const. Art. V, Section 3, 2 V.A.M.S., p. 31; State ex inf. Stipp, ex rel. Stokes Mound School Dist. No. v. Colliver, Mo.Sup., 243 S.W.2d 344, 346[1].
On June 11, 1949, the State Board of Education approved the initial plan submitted by the County Board of Education for the reorganization of the school districts in that county. Sections 165.673, 165.677. On August 2, 1949, the county board submitted that "first plan" to the voters of Scotland County under Section 165.680 and that plan was defeated. In June and September, 1951, respectively, the state board disapproved two other plans which the county board had successively submitted. Section 165.693. On February 21, 1952 (two years, six months and nineteen days after the election in which the "first plan" was defeated), the county board submitted a so-called "second plan" to the voters of five proposed reorganized districts. Section 165.693. In that election, the "second plan" was approved by a majority of the voters in Districts R-3, R-4 and R-5, respectively. Respondents were thereafter elected directors of the respective newly created districts. At the time of the election, relators were the duly elected and acting directors of school districts eliminated by and merged with the new districts. Section 165.690.
Section 165.693 is: "In the event that any proposed enlarged district has not received the required majority affirmative vote, the school district constituting the proposed new school district shall remain as they were prior to the election, but in all such cases the county board of education shall prepare another plan in the same manner as provided for the first plan and the second plan shall be submitted to a vote in like manner as the first, but not sooner than one year nor later than two years after the date of disapproval of the first plan. Any subsequent plan shall not be submitted sooner than one year following the date on which the last vote on reorganization was taken." (Our italics.)
Relators contend that the February 21, 1952, election was void; that the above italicized provisions of Section 165.693 are mandatory; that the "second plan" submitted at the February 21, 1952, election could not have been lawfully submitted more than two years after August 2, 1949 (the date of the election at which the "first plan" was rejected); and that the plan submitted at the February 21, 1952, election was not a "subsequent plan."
However (in a case decided December 18, 1952, which had not been reported in the South Western Reporter advance sheets prior to the submission of the instant case here on January 23, 1953), this court, en banc, ruled these precise contentions adversely to relators. State ex rel. Rogersville Reorganized School District No. R-4 of Webster County v. Holmes, State Auditor, 363 Mo. — 253 S.W.2d 402, 404. In that case, the county board's "only noncompliance 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 § 165.693. It was submitted to a vote and the election adopting it was held two years and five days after the first election."
The court summarized the "time schedule" of the procedures of the 1947 school district reorganization law, Sections 165.657-165.707, and held that the "not `later than two years after the date of disapproval of the first plan'" provision of Section 165.693 is directory only, and that noncompliance therewith did not render invalid the district's "organization and subsequent existence as a legal entity." 253 S.W.2d loc. cit. 405[5,6].
Furthermore, the court said of Par. (3), Section 165.673 (directing the county board to "Continue to study the school system of the County and propose subsequent reorganization plans as conditions warrant") and the provision of Section 165.693 relating to the time of submission of "`Any subsequent plan'": "These provisions clearly contemplate reorganizations subsequent to the last date fixed by the calendar set forth in the law." 253 S.W.2d loc. cit. 405[5, 6].
The judgment is affirmed.
VAN OSDOL and COIL CC, concur
The forgoing opinion by LOZIER, C., is adopted as the opinion of the court.
All concur.