| Mo. | Jun 27, 1927
This is an information in the nature of a quo warranto by the Attorney-General against respondents who claim to be the duly elected, qualified and acting directors of Consolidated School District Number Four of Texas County, Missouri. Respondents made return to writ issued on relator's petition, and relator filed demurrer thereto, followed by motion for judgment on the pleadings. The issue presented is the validity of the organization of said consolidated school district, and the case turns on the construction to be given Section 11258, Revised Statutes 1919, as repealed and reenacted in Laws of Missouri 1925, page 331.
Section 11258 as originally enacted in 1913 was as follows:
"No consolidated district shall be formed under the provisions of the article unless it contains an area of at least twelve square miles *722 or has an enumeration of at least two hundred children of school age; Provided, that no district formed under the provisions of this article shall include within its territory any town or city district that at the time of the formation of said consolidated district has by the last enumeration two hundred children of school age."
This section was repealed in 1925 and the following section enacted in lieu thereof:
"No consolidated district shall be formed under the provisions of this article unless it contains an area of fifty square miles or has an enumeration of at least two hundred children of school age. Provided, that no district formed under the provisions of this act shall include within its territory any town or city district that at the time of the formation of said consolidated district has by the last enumeration five hundred children of school age."
It will be observed that there are three conditions or prohibitions in each section attached to the formation of consolidated school districts. They relate to area, enumeration, and the size of any town or city district which may be included within a consolidated district. The first two are connected by the word "or" while the third appears as a proviso. The pleadings in the instant case purport to show that said consolidated school district was organized March 31, 1926; that "it does not contain fifty square miles in area, but that it does contain an enumeration of more than two hundred children of school age and does not include within its territory any town or city district at the time of its formation which had by its last enumeration five hundred children of school age." Relator contends that the above prohibitions are concurrent; that none may be contravened, and that respondents' admission that said purported district "does not contain fifty square miles in area" discloses a fatal defect in the attempted organization of said consolidated school district. Respondents, on the other hand, insist that the first two prohibitions, being connected by the word "or," should be read and understood as alternative; that as used in the Act of 1913 they were so construed in State ex inf. v. Clardy,
In State ex inf. v. Clardy, supra, decided March 30, 1916, Commissioner Railey, having under consideration only the first two prohibitions in the above Act of 1913 and speaking for Division One of the Supreme Court, held, on a record barren of proof that the proposed consolidated district had an enumeration of at least two hundred children of school age, that the proof that the area of said proposed district contained more than twelve square miles was sufficient to sustain the validity of the organization of the district as against the objection raised. It is true this opinion does not go into an analysis of the statute, but it is apparent that the opposite interpretation *723 now urged by relator here was squarely brought to the attention of the court and discarded, because Commissioner BROWN expressed his dissent upon the ground that he thought the Act of 1913 required "an enumeration of 200 as a condition of organizing under it."
In State ex rel. Perkins v. Long, supra, also officially reported in
"It is urged that there is no averment that there were two hundred children of school age in the boundaries of the district sought to be established. This, as we held in State ex inf. Simrall v. Clardy, supra, is a jurisdictional requirement in the organization of the district (Laws 1913, p. 722, sec. 3). If it was unqualified or stood alone, the absence of its averment from the pleading would render the latter insufficient, and hence subject to demurrer. We find, however, that the requirement is in the alternative; the statute being that the district to be organized shall have an area of twelve square miles, or an enumeration of at least two hundred children of school age. The averment as to area in regard to the proposed district is definitely made, and hence the contention must fail."
The Act of 1913 having thus been twice uniformly construed and never otherwise, the General Assembly in 1925 repealed and in effect reenacted the statute without change except as to the extent of area mentioned in the first prohibition and the extent of enumeration mentioned in the third prohibition, incorporating in the statute as reenacted the exact language above construed. In so doing it is presumed to have known and adopted the construction previously given these words by the Supreme Court. [Handlin v. Morgan Co.,
"Where a statute that has been construed by the courts has been reenacted in the same, or substantially the same, terms, the Legislature is presumed to have been familiar with its construction, and to have adopted it as a part of the law, unless it expressly provides for a different construction. So where words or phrases employed in a new statute have been construed by the courts to have been used in a particular sense in a previous statute on the same subject, or one analogous to it, they are presumed, in the absence of a clearly expressed intent to the contrary, to be used in the same sense in the new statute as in the previous statute."
Relator supports his position with a brief admirable for its clarity and force of thought and expression. Some of the arguments there advanced would challenge our attention and consideration at length but for the legislative action above indicated and the clear applicability of this rule of construction which we consider controlling in this case. *724
Relator urges no other ground of attack, and from the foregoing it follows that the organization of said consolidated school district must in this proceeding be treated as valid, that respondents herein are not attempting to exercise any rights, liberties, privileges or franchises without authority, and writ of ouster should be denied.
It is so ordered. All concur, except Gantt, J., not sitting.