*1 POST, PHILLIPS AMERICAN LEGION Kizer, Blades, Blades, Earl Ira Harold George May Hawk, Charley O. Hawk Schrader, Burge, F. Barton and M. D. W. Vernoy East, Appellants, A. MALDEN, OF

CITY Respondent. corporation,

No. 7766. Springfield Appeals. Court of

Missouri. Nov. *2 notice; insufficiency and sec- plaintiffs- cause of of Jones, Kennett, & Jones ond, ad- it was unreasonable. We first appellants. notice, question its in- dress the for if Malden, defend- Hatley, Sharp & anything sufficiency “jurisdictional” was ant-respondent. sec- say concerning have

ond contention would be obiter. frequent Although there is con jour- Odyssean set This case sail on an body law, gen flict in the the case perils delays and ney survived eral rule is assuming an is by planned Posei- might have been pursuant called or held to the lawful call circuit (including switching don or direction of a finally ar- midtrial), judges and has election,1 necessity rocky this court rived in harbor dependent upon ap voters is odyssey this The reasons decision. plicable statute.2 is If city of Malden, a sprang life when into held at a time which is fixed spread class, literally its the fourth almost (such general aas election) and which the as by annexing what referred wings know, are presumed voters therefore Base,” consisting Air Malden “the provisions then the respect to notice are 2,680 acres, with a corridor together some usually held to directory. But if it be Highway along distance extending a special election, a provisions then the miles from some two fourth respect to notice are much more town, as to city limits of the so north construed and the to no n effectually for- city with the connect the generally tice are mandatory. to be held area so base The total mer air area. seq.; p. et Elections § n annexedis extent of several times the Am.Jur., Elections, sec. et prior The election annexation. McQuillin, seq.; Municipal Corporations, July 11, gov- was held on 12.10, Annotation, vol. 1949, V. by Section 79.020 RSMo erned A.L.R., p. 661; A.M.S., provides 219 S. upon such notice be held “shall cited; W.2d and cases ex reso- prescribed by ordinance or Stipp Stokes Mound School Dis city.” such The ordinance lution of Colliver, Mo., No. 7 v. trict question provid- at election submitting the 344; Ward v. Consolidated School District Merit, week-

ed No. 136 of successive newspaper, post. and cases four- than not less publication to be last But even election if there has Actually, election. teen full, fair, expression been a and free inadvertence, publish- great will electorate weeks, on only three successive ed for appear and it does probability there is election the 23. At June that a substantial number of citizens At against. was 366 for and 187 vote vote, of their there is a April the total held in city election probability reasonable the result of 1,239. vote the election would have been changed had appel- statutory injunctions by the objections made Two com with, first, plied then void be- : annexation was a substantial lants Mooney Ross, ex rel. Stewart 2. Fahrman v. 1. State Consolidated 511(3); App., Smith, Re Walker rel. School District of Affton Flint, organized R-4 v. School District 200(5). Mo.App., 303 S.W.2d

19J. respect must statutory require directions issuance, ment Stipp for such steps notice. preliminary rel. Stokes form, manner, content of Mound School District No. Colliver, Consolidated sufficient. Eberle v. Plato *3 State ex rel. Hemmesmeyer Reid, Texas 134 District No. School C-5 of Mo.App. 582, Mo., 5; 1116; 1, parte v. Consoli 114 313 Ward see Ex S.W.2d S.W. Williams, 16 485, 136, 345 1121, dated School District No. Mo. 139 S.W.2d 491; 598; City Mem City-Liberty Embree ex rel. v. Kansas State 7; Boulevard phis Hackman, District, 593, 202 S.W. Road 166 273 Mo. 257 Mo. 282, 288; S.W. Lincoln v. McAllister ex Haeussler inf. Inv. Co. 938; Bates, 306 Bird, State 295 244 S.W. 634. 267 S.W. The general, unanimous, although Commissioners Board of Fund not 482; view is that in State the proceedings annexation Allen, statutory regulations 361 Latham in regard ex rel. Dawes v. notice- to 489; 18 Am. must be strictly complied with. 62 C.J.S. Municipal Corporations Jur, Elections, 110, p. 157; 248. This 66- § having once Notice people, an the 642. And exam § that,, to ination spoken of the freely at fair Missouri cases shows exception of without he their decision because so far are able find, by the miscon to irregularities mere timeliness quantity caused duct, incompetence inadvertence elections has been held be man to datory Mooney ex rel. and the some official. notice must conform strict fully Stewart v. Consolidated School with the statute or 511; requires Mo.App, Wood No. it. 1212, 186 City Joseph, of St. Reid, Hemmesmeyer

S.W.2d 212.3 supra, 114 option S.W. a local provided the published statute notice position appellants is that The of the “ * * * * newspaper provided since ordinance which * ** weeks, four consecutive and such required pub- notice be other county given for four lished successive weeks court or spe- ordering notice was for three proper, think in order it did cial election is void because give general publicity election.”' comply mandatory requirement Rev.St.1899, county 3029. The respondent, and court position § for such. The court, taken view lower three newspapers required for the substantial com- three weeks’ notice was four weeks. The published notice was pliance.

two papers, of these paper but in the third delegated Since ran for The weeks. duty held, court governing S.W. cit. “The loe. county fix the time to determine exercised discre- voters, tion necessary bring notice to conferred and ordered the published regarded such determination is to four consecutive weeks each light papers mentioned, act the same as a noth- apply Powell, Mo.App., would not above rule Kiefle v. 3. But Kamp, Mo.App. 1151, where requirements 333, 338; Hogan, Mo.App., are not exact Elliott v. if void Kearbey, Nance v. McAllister Bird, Horsefall v. ex rel. Lincoln v. S.W. District, Salem, 938. S.W. 33, 34; Ousley 128 S.W. satisfy publication will than that only nineteen There, the law.” to be attained sought the end a difference of two holdings in effect urged, To same here, Doran v. in banc, through speaking Johnson Court, Judge Hyde, stated, S.W. cit. 219 S.W.2d loc. Robertson, Mo.App. 38, State v. “Variations as to form notice or of Green, Mo.App., ballots, voters, S.W. State v. which could not mislead may reasonably S.W. be held to be substantial * * However, when Marbut Burges ex inf. time specifically are so stated Mo., Potter, school consol- *4 as those in Section 7369 95.145 [Section required ten idation RSMo V.A.M.S.], it that seems to us days The su- posted ahead. fifteen notices calling anything per substantial which met posted eight notices perintendent formance judicially would amount next requirement. On day fifteen amending the clearly statute.” This case notices which posted four day he additional delineates the general regard rules in before were fourteen election notice and contains a collection day. was insuffi- Such notice one short authorities subject. It has since cient. been in Young Brassfield, followed Martin, Mo.App. 35, 228 S.W.2d 823. days’ twenty-five it was held compliance with a statute We conclude not suitable while there required twenty-eight be a “substantial compliance” which in some thing less than form, exactness when the County Court, 33 Mo. v. Barton In Bean content or regularity of issuance of the publica- the statute notice of concerned, election is weeks notice for four consecutive tion of legislative requirements time and Publication for four the election. before quantity of notice must be which commenced complied with and that the days prior twenty-two actual, compliance in full.4 A holding that a lesser notice will do Reorganized would amount judicial legislation on our Daviess No. R-6 of part. For the reasons foregoing we are compelled loc. cit. hold the invalid, and publications the judgment indicated that it was is reversed. day not “time fell

which short ly.” STONE, J., P. and McDOWELL, J., concur. we On Motion Rehearing question, our think is decisive of dealt municipal bond election for which awith prescribed a three con- weeks, the first to be at least twen- Respondent secutive has filed motion for rehear- days before election. The ty-one actual upon based the fact that since our us, and do we not have Mont. 33 P.2d do 4. We or Coffee upon, Lieb, Tex.Civ.App., pass situation where the vote possible that no other it clear Ward v. Consolidated have been reached had the could 136 of result 1139, Smith, Bowers examine State ex interested Those Sengstacken, (dissenting Or. opinion); Brown L.R.A. Shekelton v. Toole the cases P. cited under note opinion eral why was handed down counsel have so, reasons not do Merit files of examined the sufficient one is case finished when it fairly have discovered has been on tried the facts actually made consecutive parties make available to the insertions. the fact This comes after finally disposed and is of in the charged appellate (only) publications was court on the facts and proved petition, answer, in the presented. admitted It then becomes “a closed book A, by Exhibit parties evidence binding on Shep- suit.” passing by the trial court Shepard, ard argued in this briefed and 472, 477. Otherwise there would be no parties on fact. both that conceded litigation. end to The motion is over- ruled. know

We of no law rule of procedure permit which would the court to STONE, J., upon ground the case back now P. McDOWELL, send J., newly discovered There are sev- concur. evidence.