Horsefall v. School District, 143 Mo. App. 541

143 Mo. App. 541 | Mo. Ct. App. | 1910

COX, J.

Action by injunction to restrain defendants who are the board of directors of the school district of Salem from issuing bonds of the district in the sum of twenty-five thousand dollars. A temporary writ was issued, and, on trial, this was dissolved and the issues found for defendants. Plaintiff brings the case here by writ of error.

A special election was held in the district on May 8, 1909. There were two orders of the board calling the election, one .to vote on a proposition to issue bonds of the district in the sum of twenty-five thousand dollars for the purpose of erecting a high school building therein; another order of the board was made calling an election to be held on the same day to vote on two sites for the location of the high school building — one known as the M’cMurtrey site, and the other as the Douglass site. The clerk was directed to post notices as required by law for each one of these elections. The notices posted, however, as preserved in this record, apply only to the question of the loan and said nothing about site. The ballots used at the election on the question of the loan were in this form: “For the loan, Yes. For the loan, no.” The result of the election as certified by the judges aud clerks was that, “For the loan, Yes,” had 268 votes, and “For the loan, No,” had 83 votes. On the question of site the forms of the ballots were: “For the McMnrtrey site, Yes. For the Douglass site, yes,” and the returns showed that the McMnrtrey site had 229 votes, and the Douglass site had 111 votes. The evidence further tended to show that there were three judges and two clerks; that ballots for the use of the. voters, in the forms above set out, were furnished at the voting places, and that in the early part of the day, until about one hundred votes had been cast, the voters who voted on both propositions, folded their two ballots together, and the receiving judge, in numbering the ballots placed one number only which would be on the outer ballot of the two. The foregoing are substantially the facts developed at the trial.

Plaintiffs, in their petition, allege that the election for the purpose of authorizing the board to issue the bonds of the district was void and assigns therefor ten reasons. Several of these relate to the use which the board is proposing to make of the money realized from the sale of the bonds and to the action of the board and the conduct of the election in relation to the question of a site on which to build a new high school building. As to the intended use of the money, it is sufficient to say that the order of the board providing for the election and the notice of election provide only for the issuing of bonds in the sum of twenty-five thousand dollars for the purpose of erecting a high school building, and the board of directors have no authority to use any of the money they realize from the sale of these bonds for any other purpose. The notice of election notified the voters that this money was to be used for the purpose of erecting a high school building, and they, having voted upon that proposition, the hands of the board are tied, and they cannot use any part of it for the purpose of purchasing a site, nor for paying existing indebtedness, nor for any purpose except that for which it was voted, which is the erection of a high school building. The evidence, however, that the board was attempting to divert any part of this money from the purpose for ■which it was voted is not very satisfactory, and we assume that on this issue the finding of the court was for the defendant for the reason that the plaintiff had failed to prove his allegations.

The main contention in this case is that the election authorizing the issuing of the bonds was void, and various reasons are assigned therefor. One is that the election was not held as the law provides elections shall be held for state and county officers. The law governing elections applicable to these offices is now what is known as the Australian system and it expressly excepts school elections from its operation, and, for that reason, that point must be ruled against the plaintiff.

It is next contended that the irregularities in the election, the folding of two ballots together by some of the voters, the failure to place a number upon each ballot, and the fact that the form of the ballots used on the question of the loan was not in the exact form prescribed by the statute, are such material defects as to render the election void. The ballots used read: “For the loan, Yes. For the loan, No,” while the form prescribed by the statute is simply, “For the Loan. Against the Loan,” it is contended that the irregularities, above mentioned, are such as to render the election void.

The decisions of the Supreme Court in this State have not been altogether harmonious as to the effect of irregularities upon the result of an election, and we shall not attempt to review these cases, but we think it may now be said to be the established rule in this State, as it is generally in other jurisdictions, that when a statute expressly declares any particular act to be essential to the validity of an election, then the act must be performed in the manner provided or the election will be void. Also if the statute provides specifically that a ballot not in a prescribed form shall not be counted, then the provision is mandatory and the courts will enforce it; but if the statute merely provides that certain things shall be done and does not prescribe what results shall follow if these things are not done then the provision is directory merely, and the final test as to the legality of either the election or the ballot is whether or not the voters have been given an opportunity to express, and have fairly expressed their will. If they have, the election will be upheld, or the ballot counted as the case may be. [Bowers v. Smith, 111 Mo. 45, 20 S. W. 101; Hope v. Flentge, 140 Mo. 390, 41 S. W. 1002; Sanders v. Lacks, 142 Mo. 255, 43 S. W. 653; State ex rel. v. Roberts, 153 Mo. 112, 53 S. W. 520; McKay v. Minner, 154 Mo. 608, 55 S. W. 866; Hehl v. Guion, 155 Mo. 76, 55 S. W. 1024; State v. Swearingen, 128 Mo. App. 605, 107 S. W. 1.]

An examination of these cases will show that they are not all in harmony in all particulars, but we think it fair to say that the general rule above stated can now be said to be fairly supported by these authorities.

In this case there is no charge of fraud and no pretense that the election was not fair, or that any voter was in any wav misled. The order of the board calling the election, and the notice of election, were regular in every way as far as they relate to the bond issue, and as the voters have fairly expressed themselves and given a substantial majority — more than the required two-thirds, their action should be upheld.

It is further contended in this case that no power existed in the board to call an election for the purpose of providing means to erect a high school building for the reason that the district had not been divided into wards and ward buildings erected therein sufficient to accommodate what may be denominated the pupils studying the common school branches. It is claimed that the accommodations existing in the district are not sufficient to accommodate these lower grades, and that until provision is made for that purpose a high school building can not be built. There was evidence tending to show that the building which the district now owns would be sufficient for the accommodation of the lower grades if provision were made elsewhere for the high school grades, and as the court found the issues for the defendant, we assume that this issue of fact was found against the plaintiff, and an examination of this record convinces us that the finding is warranted by the testimony.

On the whole the judgment is for the right party, and will be affirmed.

All concur.