356 S.W.2d 55 | Mo. | 1962
At a special election held Saturday, March 25, 1961, there was submitted to the voters of Reorganized School District R-4 of Oregon County a proposition that the district incur indebtedness in the sum of $330,000 and issue bonds for the payment thereof for the purpose of purchasing a site, erecting thereon a new high school building, and furnishing the same. The proposition carried by the requisite two-thirds majority (Art. VI, § 26(b), Const, of Mo.1945, and § 165.040
All grounds of attack upon the election and the bonds have been abandoned, except one, so that the single question for determination on this appeal is that of the sufficiency of the notice of election.
The notice in question was appropriately headed “Notice of Bond Election, Oregon County School District R-4 of Oregon County, Missouri.” Its pertinent recitals were that notice “is hereby given to the qualified voters * * * that a special election will be held in said School District on Saturday, March 25, commencing at six o’clock A.M., and closing at seven o’clock P.M., * * * .” After specifying the purpose of the election (as hereinabove set out), designating the four polling places, and stating that the “voters at said election will vote by ballot in the form provided by law,” it concluded thus:
“Done by order of the Board of Education this 2nd day of March, 1961.
“(Signed) D. H. Gohn
“Secretary of the Board of Education of Oregon County School District R-4 of Oregon County, Missouri.”
The defect in this notice of which plaintiffs complain is that it gave “Saturday, March 25” as the date of the election, but omitted to state or include the year in such date-designating phrase. In furtherance of their position, the first proposition advanced by plaintiffs is (as has been frequently held) that time and place are of the substance of every election, and failure to comply with the law in these particulars is not generally to be treated as a mere irregularity. State ex inf. Stipp, etc. v. Colliver, (Mo.) 243 S.W.2d 344, 349; Cooley on Const’l Limitations, 8th Ed., Vol. II, 1399; State ex rel. Fahrman v. Ross, 160 Mo.App. 682, 693, 143 S.W. 502. From this premise it is argued that the omission to specify the year in the designation of the time for holding the election amounted to a failure to state when the election would be held, and hence violative., and within the condemnation, of this rule. Alternatively, it is contended that the doctrine of substantial'compliance is not here applicable because of the rule that legislative requirements as to time and quantity of notice of such a special election as the one. in question must be strictly complied with, so that as to those matters the only substantial compliance is actual compliance in full. State ex rel. City of Berkeley v. Holmes, 358 Mo. 1237, 219 S.W.2d 650; American Legion Phillips Post v. City of Malden, (Mo.App.) 330 S.W.2d 189.
One of the prime objects of the notice required by § 165.040 is to apprise the electorate when the election is to occur. “The date in its ordinary meaning imports the day, month, and year, and this is also the legal significance of the word, and unquestionably is the popular as well as the technical meaning, the day of the month being quite as much a part of the date as the month or the year. When day, month, and year are thus stated, the term is definite, certain, and complete.” 25 C.J.S. 1003. See, also, Interior Linseed Co. v. Becker-Moore Paint Co., 273 Mo. 433, 202 S.W. 566. It is to be noted that § 165.040 does not provide that the “date” of the election shall be embodied in the notice, at least not in the precise sense that the term “date” is defined above; but undoubtedly the notice must contain a sufficient designation of the time at which the election is to be held as will fairly and distinctly inform the voters thereof. It may be conceded that the requirements of careful and exact draftsmanship would not be satisfied by the statement in such a notice of anything less than day, month and year, but here we are dealing with a statutory provision the execution of which will usually be carried
Plaintiffs urge upon us as persuasive authority a case decided by the Supreme Court of Wisconsin, State ex rel. Baxter v. Beckley, 192 Wis. 367, 212 N.W. 792, where the year was held to be an essential part of the required date to be appended to the signature of each of the voters joining in the recall petition there involved, and for the omission of which as to a number of signatures thereon, such petition was held insufficient to require the holding of the recall election. We do not pause to further notice that case, not so much because it did not involve the sufficiency of a notice of election, but, more importantly, we think that, on the merits, the dissenting opinion (which rejected the interpretation just mentioned) represented the better and more logical view. Opposed in principle to this Wisconsin holding is our own case of Adams v. Boyd, 332 Mo. 484, 490, 58 S.W.2d 704, 706, where, with respect to the time of a foreclosure sale under a deed of trust, the notice merely stated that such sale would be held “on December 10, between the hours of Nine o’clock A.M. and Five o’clock P.M.,” and omitted to state the year; held, that the current year was meant, and the sale valid. A like holding is found in Parmly v. Walker, 102 Ill. 617. And see 86 C.J.S. Time § 10, p. 838, where it is stated, “When a month is referred to without any designation of the year, it will be understood to be of the current year unless, from the connection in which it is used, it is apparent that another year was intended * *
The notice did fail to give the date of the election as fully and completely as it might have been stated, but even so the case is not governed by such cases as State ex rel. City of Berkeley v. Holmes, supra, and American Legion Phillips Post v. City of Malden, supra, as plaintiffs contend. In the former case, the statute required that notice of the special bond election be published once a week for three consecutive weeks in a newspaper, and that the first publication be at least twenty-one days before, and that the last be within two weeks of, the date of the election. There the first publication was only nineteen days (not twenty-one) before the date of the election, and this was held to invalidate the election, the statutory provisions as to time of notice being mandatory. The latter case applied the same principle, the holding being that inasmuch as the special election ordinance required four weeks’ publication before the special annexation election, three weeks’ publication was not a substantial compliance, thus rendering the election invalid. After reviewing the authorities, the opinion properly concluded “that, while there may be a ‘substantial compliance’ in something less than exactness when the form, content or regularity of issuance of the notice of a special election is concerned, the legislative requirements as to time and quantity of notice must be strictly complied with and that the only substantial compliance is actual,. compliance in full. A holding that a lesser notice will do would amount to judicial' legislation on our part.” It is apparent that unless omission of the year amounted to a failure to state when the election would be held, these cases are not in point for the .reason that no question arises as to the fact
It may be noted that in the years following 1961, March 25 would not again fall on Saturday until 1967. The notice was dated “March 2nd, 1961,” and informed the voters that the election would be held “Saturday, March 25.” Surely no reasonable person .reading this notice as a whole would conclude that the election would be held in 1962, or some subsequent year. On the contrary, it seems obvious that it was sufficient to advise any such person that the election was imminent and would occur in the then current year, and we so hold. It therefore met the requirements of the statute and was sufficient.
Judgment affirmed.
. All statutory references are to RSMo 1959 and to the corresponding section numbers of V.A.M.S., unless otherwise noted.