Summary
In Young v. Brassfield, Mo.App., 228 S.W.2d 823, 825, it was held, not apposite to the instant question, that strict compliance with statutory provisions as to "method, manner, and time of notice of special elections" was essential and thus posting four notices was not compliance with a statutory requirement that five notices be posted.
Summary of this case from Eberle v. Plato Consolidated Sch. Dis. No. C-5Opinion
Opinion delivered April 3, 1950. Transferred from Supreme Court — 223 S.W.2d 491.
1. — Elections. To render special elections valid and their results binding there must be strict compliance with all statutory provisions as to method, manner, and time of notice of special elections involving bond or tax questions. Secs. 10358, 10418, R.S. Mo. 1939.
2. — Schools and School Districts. Under statutes providing that due notice of election shall be given by notices posted in five public places within school district fifteen days prior to the election, or by notice, for the same length of time, published in all of the newspapers published in the district, where it was stipulated that no newspaper publication was had and that but four notices were posted, special election held in school district on question of increasing tax levy for school purposes was void and injunction would be granted against assessing or levying any tax based on result of void election.
Appeal from Circuit Court of Mercer County. — Hon. Ray Weightman, Special Judge.
PETITION SUSTAINED, INJUNCTION GRANTED.
Herbert S. Brown for appellants.
The appellants rightfully invoked the remedy in equity to restrain the Clerk of School District 72, Mercer County, Missouri, from certifying to the Clerk of said County the results of the purported election, and to restrain the Clerk from assessing and levying tax based on the results of said purported election and further to have the Court declare the said purported election null, void and of no effect. Ranney v. Bader, 67 Missouri 476; Kansas City, Fort Scott and Memphis Railroad Company v. Chapin, 162 Missouri 409, 62 S.W. 1000; Jacobs et al. v. Cauthorne et al., 293 Missouri 154, 238 S.W. 443. Notice of a special school district election must be given, and to be such as to substantially comply with the statutes under which said special school district election is called and held. Section 10358, Revised Statutes of Missouri, 1939; Section 10358, Senate Bill 208, of the Laws of Missouri, 1945, at page 1630; Section 10418, Revised Statutes of Missouri, 1939; State ex rel. Burgess v. Edwards, 151 Missouri 472, l.c. 480, 52 S.W. 373; Benton v. Scott, 168 Missouri 378, 68 S.W. 78; State ex rel., Gentry v. Sullivan et al., 320 Missouri 362, 8 S.W.2d 616. Notice of a special school election must be sufficient to give the voters to whom it is addressed such information that they may base a logical and intelligent conclusion on the proposition, as well as to inform said voters as to the place and time of the election. State ex rel. School District of Affton v. Smith, 336 Missouri 703, 80 S.W.2d 858; State ex inf. Poage, Pros. Atty., ex rel. Prewitt et al. v. Higley et al., 250 S.W. 61; Jacobs et al. v. Cauthorne et al., 293 Missouri 154, 238 S.W. 443. A special school district election held within insufficient notice is void. State ex rel. School District of Affton v. Smith, 336 Missouri 703, 80 S.W.2d 858; 56 Corpus Juris, Section 755, Subsection (b), at page 648. The state and every one of its political subdivisions and agencies are bound by the prohibition of the due process guaranties, and school districts are an arm, or agency, of the state government. 16 Corpus Juris Secundum (Constitutional Law), Section 568, Subsection (e), at page 1149, and footnote 61; Illinois ex rel. McCollum v. Board of Education of School District 71, Champaign County, Illinois et al., 333 U.S. 203, 92 L.Ed. (ADV 451), 68 S.Ct. 461, 2 ALR 2d 1338; 56 Corpus Juris, Section 46, Subsection (b), page 635. When a statute requires notice of an election to be given in a certain manner such as posting five notices in a public place or giving twenty days notice in a newspaper, the posting of only four notices, or giving only nineteen days notice by publication in the newspaper, does not comply with the requirements of the statute, as such requirement is mandatory and must be complied with. Anything less would be amending the statute judicially. State ex rel. City of Berkeley v. Holmes, State Auditor, 219 S.W.2d 650.
John E. Powell for respondents.
Statutes governing school districts and school records should be liberally construed. State ex rel. School District of Affton v. Smith, 336 Mo. 703, 80 S.W.2d 858. The examination of the notices put up, which the voters had in their hands and possession at the voting place in said school district, and placed before the public for their action, does not seem to leave any room for doubt that the voters were clearly advised of the nature of the propositions before them. State ex inf. Poage, Pros. Atty. ex rel. Prewitt et al. v. Higley et al., 250 S.W. 61; Jacobs et al. v. Cauthorne et al., 293 Mo. 154, 238 S.W. 443. All of the plaintiffs in the case at bar were at the election polls immediately preceding the opening of the polls at three o'clock, and before plaintiffs could be heard to complain they must allege and prove that they offered to cast their ballot at and in the election. State ex rel. Walker, Pros. Atty. ex rel. Wagster et al. v. Consolidated School District 4C, Dunklin County et al., 213 S.W.2d 273, citing McGowan v. Gardner et al., 186 Mo. App. 484, 172 S.W. 408, l.c. 410. The essence of the thing to be done, mainly to give notice to the people of the district, was completely effected and no possible injury could have resulted from giving four notices, put up in four public places, instead of five. State ex inf. v. Bird, 295 Mo. 344, l.c. 351, 352. In construing the intent and purpose of school laws, they were designed as a workable method to be employed by plain, honest and worthy citizens, not especially learned in the law; and that no strict construction should be given to them. State ex inf. v. Bird, 295 Mo. 344, l.c. 352, citing State ex inf. Simrall v. Clardy, 267 Mo. 371 (185 S.W. 184); N.B. State v. McKown, 315 Mo. 1336 ( 290 S.W. 123, l.c. 129).
Plaintiffs, qualified voters and taxpayers of School District 72, of Mercer County, instituted this action by filing a petition and application for a permanent writ of injunction against defendants, the clerk of said district and the county clerk of Mercer County. Plaintiffs seek to establish the invalidity of a special election, held in said district to increase the school tax, to restrain certification of the results thereof to the county clerk, and to restrain the county clerk from levying any taxes based on said election. The prayer for injunctive and other relief was denied and the petition was dismissed. Plaintiffs appeal.
The facts and circumstances out of which this lawsuit grew, are: A special election was held in the above school district, on June 26, 1948, for the purpose of voting on the question of increasing the tax levy for school purposes. The election was held under the authority of Section 10358, R.S. Mo. 1939, as amended by Senate Bill 208, Laws Missouri, 1945, page 1630. Said section as amended, provides that due notice of such an election shall be given as provided in Section 10418, R.S. Mo. 1939. The latter section provides that notice shall be given by notices posted in five public places within the district, fifteen days prior to the election, or by notice, for the same length of time, published in all of the newspapers published in the district. It is stipulated between the parties that no newspaper publication was had, and that but four notices were posted.
Plaintiffs contend that failure to give notice of the time, place, and purpose of said election by five notices, as required by statute, renders the election wholly invalid, null and void. Defendants contend that the posting of four notices was a substantial compliance with the terms of the statute, and that the election was, therefore, legally held.
There are other irregularities complained of by plaintiffs. However, since the question here stated is decisive of this case, and since a full discussion of, and a ruling on, such other contentions can be of no particular value, either to these parties litigant, or to the student we shall content ourselves with a determination of the sufficiency of the notices.
Defendants contend that statutes governing school districts and records should be liberally construed. Such a rule was stated in State ex rel. School District of Affton v. Smith, 336 Mo. 703, 709, cited by defendants; but the court, in that case, 707, said: "Where, as in this case, the statute (Sections 9326 and 9283, R.S. Mo. 1929) requires a notice to be given, any action taken by the voters without notice, or with an insufficient notice, is void."
Defendants also cite State ex inf. v. Bird, 295 Mo. 344, 351, 352, as authority for the rule that if a statute, as in this case, "* * * merely requires certain things to be done and nowhere prescribes the result that shall follow if such things are not done, then the statute should be held to be directory," not mandatory. Such a rule was enunciated in the above decision, by Walker, J.; but the learned judge found it to be a fact, and so held, that the notices and plats posted in that case were so worded, drawn, and signed as to constitute substantial compliance with the provisions of the statute, as to their context. The main question considered was the effect of the failure of the county school superintendent to sign the plats, although the notices were signed. No question was presented concerning a failure to post a sufficient number of notices of the election, or of a failure to have same posted for the full time required by statute. We do not consider that decision controlling in this case.
In state v. St. Louis, Kansas City Northern Railway Company, 75 Mo. 526, the court held that failure to give notice of an election for the purpose of increasing the school tax levy, as required by statute, whether such election be held at the time and place of the regular annual school meeting, or at some other time and place, rendered the election void.
The Supreme Court, en banc, in State ex rel. City of Berkeley v. Holmes, 219 S.W.2d 650, handed down since the trial of this case, reviewed the law in this and other states relative to the effect of a failure to give notice for the full time required by statute in a case where an election was held on the question of increase in the corporate debt which, of course, necessarily involved the question of taxes for its payment. The applicable statute specified that the first notice of said election should appear twenty-one days prior to the election. It actually appeared nineteen days prior thereto. The court held that the notice was wholly insufficient and that the election was invalid, null, and void. The court said that a special election to increase taxes is an important matter, that property owners should have legal notice thereof, and that they "are entitled to rely on having the kind of official notice the statute requires." (Emphasis ours).
In view of the rulings of the appellate courts of Missouri over a long period of time on the subject of statutory provisions regarding notice for special elections of all kinds, and of the ruling of the court en banc in the last mentioned case, we are unable to hold that anything short of strict compliance with statutory provisions as to method, manner, and time of notice of special elections involving bond or tax questions, will be sufficient to render said election valid and its results binding.
It follows that the trial court erred in dismissing plaintiffs' petition and in denying the injunctive relief prayed.
It should be adjudged and decreed that plaintiffs' petition be sustained; that the special election held in School District 72, of Mercer County on June 26, 1948, was illegally held; that the results thereof are without legal force or effect; that the special tax, purported to have been voted at said election, is illegal, null and void; and that defendant Elbert Hubbard, county clerk of Mercer County be, and is hereby perpetually and permanently enjoined and restrained from assessing or levying any tax based on the result of said illegal and void election. Bour, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. It is adjudged and decreed that plaintiffs' petition is sustained; that the special election held in School District 72, of Mercer County on June 26, 1948, was illegally held; that the results thereof are without legal force or effect; that the special tax, purported to have been voted at said election, is illegal, null and void; and that defendant Elbert Hubbard, county clerk of Mercer County be, and is hereby perpetually and permanently enjoined and restrained from assessing or levying any tax based on the result of said illegal and void election. All concur.