*1 1920. ex inf. Bothwell v. being policy, then the amount due on $8,057.50, 'part judgment, of entered, as said likewise attorneys’ penalties In $1,750. our fees, form of opinion, judgment is said sum the above excessive'as to attorneys’ penalties and fees. of as $1,750, allowed judgment respondent If remit, will as of said days filing opin twenty of within from the herein, judg date ion, $1,750, the said sum of as stand will af ment, the remainder of said firmed; will reversed re otherwise, cause CC., Mozley, manded for trial. White and a new con cur. foregoing opinion

PER CURIAM:—The Railey, adopted hereby opinion of the court. as All C., judges concur, inf. ex LAWRENCE BOTHWELL ex STATE THE Appellants, al., et rel. ROY GRAY GEORGE C. al. et SCHUSTER Two, 15, December 1920.

Division Together. laws, All unwritten, written and Construed STATUTES: 1. established, different dates sorts whatever whatever are. contracting, together, expanding, limiting and to be construed system jurisprudence nearly extending another one one . violating be made without r'ounded can un- harmonious yielding terms. unwritten or By SCHOOLDISTBICTS: Boundaries. the Act 2. CONSOLIDATED of a boundaries consolidated March school district independent of and have reference boundaries of formation districts. The school common proper dependent on a area school enumera- existing alone, reference to boundaries without common tion or counties. Existing fixing Law. -: -: School The method prescribed by of a consolidated the Act boundaries SUPREME COURT OP MISSOURI, State ex inf. Bothwell v. Schuster. any general provision existing 1913 is exclusive of of the then general school, law. Sections 10837 and Revised Statutes 1909, apply to a different kind consolidated school districts *2 by 1913, application

from those authorized the Act of and have by act, to organized by districts authorized the later which entirely an different method. Remaining 4. --: -: -: Size of Districts. A consoli- may organized dated school district be the under Act of 1913 notwithstanding, portion territory when a common a boundaries, persons twenty school is its included within age portion of school will not be left within of the common such prescribed by 10837, as remains—a' condition school district Section repealed by Revised Statutes 1909. Said Section is not the 1913, recognizes remaining parts Act but said the existing district, formed, may an after a consolidated district is be provides school, sustain a for insufficient to the and annexation of ' remaining parts the to other districts. provides -: In Two or More 5. Counties. The Act of 1913 for organization embracing the a school consolidated lands counties. situate in or more two County Superintendent: Adjoin- -: Welfare 6. Discretion requirement ing Act District. The of 1913 that the the laying superintendent, -in out the a boundaries of consolidated district, regard for welfare ad- school shall have due districts, joining discretion which a vests by prescribe The does the courts. statute not is not reviewable followed, requires but him to so locate certain method to judgment pos- form in will his the best “the lines as having for the welfare due sible consolidated districts,” him and words invest without those a courts, by not reviewable official sound discretion to that he not exer- evidence available show and not make do sound, regard.” not has been If his cise “due such special legal only voters at election. can be corrected Thomas Court.—Hon. Circuit Buchanan from Appeal Judge. Allen, B.

Affirmed. Randolph & for Randolph appel Zwick and &

Ryan lants. which pro- March approved The act

(1) school dis- of consolidated organization for vides ex inf. Botliwell v. Schuster. system provid- general part a of laws tricts is but of a ing And youths of the state. tbe education of the applies determining question we law as to what every statute and should each take consideration light system that throws that is of the school applicable question determined. to to be the- (2) Legislature school that enacted expressed recognized the fact that said distinct law complete law within itself and that act was provisions carry it was said law out intent and general go necessary law of state Chap. Legislature S. 1909. R. as embraced specifically, “all Section act, organization government applicable bf laws provided city IV, Article town Chapter *3 applicable 1909, Revised shall be 106, Statutes organized provisions under the of this act.” to districts provisions provides all 10881 of Sec- Section changing boundary relating to tion 10837 lines apply’to city districts shall and town, of common school 10837 school districts. Section boundary shall be created or new district line no “that changed by any district be formed contain- shall twenty ing actual count less than its within limits. age by or which persons district shall of school containing limits actual its count than within less left age.” attempted twenty persons In of school for- 2 District No. of Clinton Coun- mation of Consolidated ty, controversy, by chang- it was formed the district taking parts boundary ing lines and Districts City County, Grower Clinton District, and 30, 32, Nos. and common Nos. Districts and dis- County; changing and so Buchanan tricts of common lines of said school districts' and tak- ing the uncontradicted of the same evidence is remaining part left in were not dis- there required by of children said statute. the number trict attempted reason, consolidation Therefore, Mo.—26 285

402 SUPREME OP COURT MISSOURI, v.

State ex inf. Bothwell Seliuster. Sweaney, (3) was void. State Mo. ex inf. 270 690.' v. Legislature It cannot be said with reason that when “organization” used the word act, Section organization apply govern- it intended to not to but to management Legislature ment school, and for the. “organization government” used both words “organization” and the word has clear fixed, and well- meaning. Supervisors defined Board v. Duke, Copeland 94; Ya. v. Board, School Pa. 359. The clearly “organization” word used in the sense of formation. v. School District, 54 213; State Minn. I). 627; S. In re 53 Kan. 191. Powers, Sanders, (4) required Superintendent The la.w Sims to visit the investigate the needs and determine the proposed exact boundaries of the consolidated district so locate the boundaries as in the superintendent possible form the best con- doing- required In district. solidated so the law of her regard adjoining- have due also for the welfare of the discretionary power given law a Under'this to locate the boundaries of the if honestly district and reasonably this discretion has been subject then her action exercised is not judicial inquiry. If, hand, other the evidence inquiry investigation shows that or no as to the needs made, districts were thought given districts, and that her unreasonable arbitrary action was and resulted *4 public, injury subject then her act judi- was Lafayette rel. cial review. v. County State ex Court, 321; 41 ex Mo. State rel. Kellerher v. School Board, Dryer, 296; V. 134 Mo. ex rel. App. State 183 Mo. 481; v. 206 Mo. Adcock, State ex rel. 256. respondents. K. R. H.

H. White and Mus ser for constitutionality (1) unques- the act now Dist. v. Gordon, tioned. State rel. 261 ex Mo. 631; State n exinf. v. Morgan, 268 Mo. 272; State inf. ex v. Stouffer, 403 1920. 285 v. State ex inf. Bothwell (2) the annex- 5 for

197 252.W. Section S. remaining forma- after the ation of of districts summary manner. tion of districts rel. 252; ex 197 S. State inf. v. State ex W. Stouffer, Mo. 266 Jones, ex inf. v. 238; 152 Mo. v. State Hill, Copeland Hislop Joplin, 198; 599; 250 v. v. St. Mo. Plattsburg, Joseph, Mo. Birch v. 180 431; 126 Mo. (3) 271 v. 177. Smith, ex inf. Mo. 413; State pro- of the district the boundaries determination of petitioners by .by 3 posed is left Section said superintendent, judgment solely of the question judgment correctness exercised superintendent regard by had for welfare and the passed upon required are be by within the voters of at solely purpose, special held and the election judgment solely or of due measure judicial question. and is not a vested 105; 268 Mo. State ex Cleaves, ex inf. v. State v. inf. 251; ex inf. v. 197 W. State Jones, 166 Mo. Stouffer, S. 962; 190 S. W. v. State 197; Cross ex rel. Moreland, (4) Superintend- If Sims, Mrs. Sims, 201 S. v. W. locating error of ent, committed showing* that error, of this absent a boundaries by approval of those boundaries that the deception by cannot be procured fraud, corrected private quo wrongs by and the proceedings in warranto, relators a matter grievances not in- or quired only quo warranto. The State is the injuried party, thereby has been aggrieved and unless it ex be awarded. State inf. Duncan, should v. the writ 265 Crow, ex inf. Railroad, v. 34; State Mo. 176 Mo. Stouffer, v. 252; "W. inf. S. ex School 687; State App. 504; Mo. ex State reí. District, Job, v. v. Dist. Fleming, v. Mo. inf. ex 32; 563; State 205 Mo. Weatherby, Mo. 17. Quo warranto, instituted MOZLEY, C. County, Attorney

Prosecuting Buchanan the re- *5 COURT OP MISSOURI, SUPREME ex ini. Bothwell respondents, against, Gray in the Roy al.,- lation of et county. court circuit said ousting object re action has for its George M.

spondents, Allison, Schuster, James viz., C. Singleton Henry T. Ransdell, O. G. Smith, C. Earnest director of of school and J. from office C. Stark, Buch Clinton and District No. School Consolidated alleged petition respond anan counties. It authority acting assuming so, to do and are as ents authority of that the or law; Such without directors, ganization said district was law and violation respondents directors therein the election of likewise unlawful.

Respondent’s pleads return information quo which to base does proceedings, state facts warranto any way give

or in sufficient to the court jurisdiction subject-matter respondents. or of the They answer further follows: day February,

“That 16th on more twenty-five qualified than resident citizens community of Gower, residents each Clinton County, presented and Buchanan to Mrs. Anna L. Sims, acting qualified superintendent duly elected, County, petition their schools Clinton that she form community said consolidated school and of county, county superintendent and the of each said the-day February, thereafter having jurisdiction community, visit thereof, said in- vestigate the needs said and determine boundary proposed for a lines consolidated boundary locating district, said lines as would, in her judgment, possible form the best consolidated district, having also due to the welfare of having districts, so determined the lines, day February, the 27th did on plat 1917, make a proposed and certified at said county time clerk of each Buchanan and Clinton County, of schools of ' OCTOBEK TEEM, *6 y. ex inf. Bothwell plat copies County, Buchanan said Missouri, certified petition twenty-five citizens and more resident and retaining community, qualified of said and voters originals in her office. county L. Anna Sims,

“That also time said at said special meeting’ superintendent call a aforesaid, did proposed qualified consolidated voters all considering ques purpose for the school district special meeting being called consolidation, said tion of Thursday, p. m. on afternoon for two o’clock building day 1917, at the school March, 15th special meeting District; that said then Grower School proposed posting within said consolidat called was places public therein, notices, at ten district, ed school place stating purposes and said notices time, meeting, viz: said organize a “First, d community, with as lai out on the boundaries posted.

plats “Second, to six school directors for con- elect said years, two for district, three two solidated for meeting years year, and and that two one said two p. o’clock m. on at two commence date set, therein, and place the said mentioned notices so at the public places posted as aforesaid as aforesaid were days prior posted fifteen date of the more than special meeting., posting at the time said said post the said also at of notices proposed plats, places public in said five five being proposed same also done than district, more said special meeting, days prior to said all of said fifteen proceedings thirty days being filing had within after the superintendent, aforesaid, L. Sims, Anna with said twenty-five petition and more citizens and of the qualified community. of said voters county superintendent, Sims, Anna’L.

“That said special meeting, person said and at two o’clock attended day p.'m. March, 15th the assemblv on said SUPREME COURT OE MISSOURI, State'ex Both inf. well v. Scliuster.

room of the Grower in Grower,Missouri,, district school brought plat proposed district, thereto a of said meeting and at order; said time called that there' majority, was great assembled there the if not all,' of qualified proposed resident of said complainants proceeding- including all of the in this organized meeting residents therein, that said by the election of A. St. John as chairman and J. J. secretary, upon Burch Saunders as the ballot taken proposition. organize ‘To a consolidated community, school district in this with boundaries as *7 plats posted,’ laid out on the the ballots and collected purpose announced the tellers selectel for said were: organization, against organization, ‘For ballots; whereupon 45 ballots;’ the chairman announced that qualified said resident citizens and voters had their majority duly vote created Consolidated School Dis- County, trict 2 .of Clinton No. in Missouri, accordance posted plats proposed.” with the lines of the so and Respondents duly were chosen to serve one, two years, respectively, three and pro- as directors. The special ceedings meeting of said were certified to the of Buchanan and County, clerks Clinton and the county. of schools of each ’ things pleaded That these done were in the denied, but, answer is not as above stated, it is insisted they authority were without done of law and respondents the election of as directors of said con- solidated school as such were violation of law and their acts void. May Said cause was tried term, resulted in a respond-

court and in favor of petition. ents of relators’ and dismissal Motion for filed and new trial was overruled, the cause was appealed duly to this court. Judge Allen, Thomas B. who tried the case, handed ‘ opinion, a written is

down set forth in the bill exceptions meets our conclusion as to the v.

State ex inf. Bothwell just disposition liberty of set- of this we take case, opinion. ting adopting follows: It is as it out it as our provide Act undertakes to 14, 1913, “The of March essentially are districts which for consolidated school previously known in different from school district Judge Concerning the act, this State. Woodson, says: Mo. c. Gordon, l. ex rel. “ keeping progressive and in with the ‘This large— country at State and forward movement bringing grades higher in- schools and home'better ordinary public teach, schools do not struction, which incapable teaching’ on of the lack of and are account appropriate buildings employ and to means construct Legislature, competent By this scheme of teachers. and will instructed of our children can thousands taught higher branches of education the ordi- go city nary high school, schools, who unable colleges away design and universities from-home. The Legislature good and wise, before the act conferring youth country beneficence the reasons invalid, declared therefor should be should unanswerable no reasonable be so clear doubt ’ unconstitutionality. to its exist as should *8 language expressed we find “In the above Supreme as Court to the"new of consolidat- estimate n emphasis and a distinct ed appellate districts, that. will, and lower must,

courts courts re- in favor of all such doubts solve

“The arises on first contention the construction of certainly guiding’ A new act. correct rule for forth set statutes in rel. of State ex construction Bishop quoting 649, from 261 Mo. Gordon, l. c. Writ follows: 113a, as secs. Laws, ten “ resulting completed bring- doctrine from a ‘The together that is, laws, all ing of written and its sorts and at whatever of whatever unwritten, different established, to be construed together, are contract- dates extending limiting expanding, ing, one another

408- COURT MISSOURI, SUPREME OF y.

State ex Bothwell inf. one system of jurisprudence nearly harmonious as it rounded violating unyielding made can without or written unwritten terms.’

“We must, therefore, act in harmony construe this with the other written and unwritten laws this provisions without violating unyielding of the act itself. contended, able counsel' relator for earnestly very that this act yield to must have into it effect, read portions Revised Section Statutes And this done, must be the provisions unless unyielding; is, clearly out of harmony inconsistent wi said section of the Revised Statutes. th to the act we find Section

“Turning begins with the qualified that ‘the provision com in Missouri munity organize may a consolidated school purpose for maintaining both elementary schools high schools and provided.’ hereinafter Court, Supreme State ex inf. v. 266 Mo. Jones, c. l. ‘community’ defines the word as used in this act, to be or vicinity, people who neighborhood, reside in a in more or less locality proximity.

“Section ‘no consolidated district under the provisions be formed shall this act unless an area at it contains least twelve square miles has an enumeration of least two hundred children age.’ after provides,

“Section detailing the necessary steps organization the consolidated district, that: shall proceedings ‘.The of this meeting be certified secretary chairman clerk or clerks and ,to county superintendent also or superintendents schools of all the counties affected. If the proposed territory includes lying two or counties, petition provided herein more for shall the county be filed with of that county petitioners the majority reside. The *9 proceed shall' above county set forth file a of addition shall copy and in petition and y. Stat'e ex inf. Bothwell plat, county county from with clerk of each territory.is proposed to he taken.’ that ‘the inhabitants

“Section remaining parts may them- also annex districts any selves to other or districts district petition filing asking so annexed.’ be pro- especially “Looking the above act, at this bearing provisions visions, which are all the following quantum can the of a consolidated fairly cinelusions be to-wit: avoided, The of a

“First. boundaries consolidated independent are bound- and have reference of school districts. consolidated districts aries are proper community of the rule area or carved out alone, without reference to school school enumeration boundaries. fixing the boundaries of The method of “Second. ° any in the act is consolidated exclusive a general organiz- provisions Revised Statutes for proposition ing at the core This strikes very correctly counsel Relator’s contention. relator’s provision every ‘each and that clearly brief in their state inconsistent the terms law not said school be in full force and effect and must act is still of said we come the Act given construe consideration when provision the effect of a test of 1913.’ general present is‘inconsistency. If statute on the given inconsistent, effect. If then be must consistent, it given Let us therefore consideration. it cannot fairly apply ‘acid test.’ proposition brief, state in their

“Counsel, way: examination of statutes ‘On there this two sections organization directly bear under such districts' conditions, consolidated namely, 10842.’ 10837 and To what Sections districts do these sections size kind of Obviously expressly apply? kind author- District8 organized by sections, which are ized *10 410 MISSOURI, SUPREME COURT OF

State,ex v. Schuster. inf. Botliwell entirely an out method set different method from the in the Act of 1913. organized

“That under the consolidated district from the Section entirely 10837 is scheme different an 1913 Act of authorized under the districts by will be an of said Section manifested examination proviso 10837 and act. Section the new Instance the of specific provisions following the formation of under ‘that no section, new that new dis- districts pro- organized [that is, trict new under the district of section] visions that be or shall created changed by any line which district shall be con- formed taining by twenty within its limits actual than count less persons age, any by school district shall be by containing left twenty within its limits actual count less than persons age.’ provision clearly This limits the of the new districts formed under creation by .providing Section that new district twenty pupils shall than contain not less and no remain- ing part any twenty shall district be left less than Comparing provision provision children. with the pro- Act we find that Section the act ' vides consolidated district shall contain not less than two hundred than or an children area of not less square contemplates miles;

twelve and Section 5 remaining parts may that of districts have less than pupils, by twenty following as shown considerations: “First. The consolidated measured proper the rule of area or school enumera- tion. act

“Second. does not mention number may remaining parts children be of dis- tricts. recognizes

“Third. remaining parts may will or be districts insufficient to sustain a provides parts remaining for such to become to other annexed forming

“Fourth. Section 10837 for the provided of a enough consolidated district be there Botlrwell v. inf. State ex under constitute

left in remaining to-wit, the law independent school districts, than children. containing less twenty of 1913 the Act the consolidated district under “If proper is to of community be measured rule that act area or enumeration, undertake to read twenty unless that no taken may a district *11 the of the -district children in part remain remaining mean a the and render impose act, would restriction on excluded ingless provisions the act as to the annexing why For provide to other districts such excluded for another district annexing, when a district part is sufficient the law to under constitute it district, in itself? As such could without pro this twenty with vision consolidate another district. If then parts, children to be left the excluded it had in s adjacent that when di happen and would often might a 40, or 50 20, had consolidated only children, tricts 30, including all without all district could be created at not ‘community’ deprived districts, the such would Again organization such new act. of the benefits the already all of school is authorized districts comprising such necessary authority. for act was by law, in boundaries case con present that the the Concede area and ‘community’ of proper a stituted enumeration act, then the act its terms by meaning within become ‘community’ incorporated. such authorizes in case, by hold that -we should If children in an leave twenty failed to of having reason incorporate, could not aof part excluded of the act? For into the teeth holding go not such a ‘community’ may and then say incorporate a how you can it in cannot prior provision that virtue say provisions clear that the It of Section corporate? seems harmony in and are inconsistent with 10837 are not that should Sec repeal not the act It is necessary act. law for that still as a section remains tion 10837, Chap. 1909, Revised Statutes Article but MISSOURI, SUPREME COURT OF ex inf. Bothwell simply apply does consolidated district as not organized under the Act of

“Contention counsel relator act does for provide organization not consolidated embracing districts lands in counties, more two by provisions only not but act, answered Supreme Wright decision of the Court Case, Mo. district em- sustained a consolidated bracing land in Bates counties. Cass.and point County Super

“The exact School County duty not do intendent Clinton her did under attempt comply 'That this: she law, require even semblance’ of the ments of the act that she have re due Discrretion!dent'S gard adjoining’ for the welfare of the laying out district. It true seems made County- trip but a short and over hurried the Buchanan territory might and the evidence indicates that she have perhaps pains discharg should have taken more *12 ing important responsible duty. this and It would appear boundary further from the- evidence that the the consolidated district could have been fixed so as to greatly upon have diminished remaining bad effect the portions opinion my affected, the districts in the establishment of boundaries of the this consolidated actually hardship upon remaining district worked a the parts of the school districts. But what is this court to grant in do? Can this court relief this case because of the unwise action in the just power mentioned? If in matter it were the of this county superintendent acts of court review the the to the whether and determine boundaries of the consolidat regard were established with due ed districts to the wel adjoining districts, fare of this course, court would not But to do so. this court is hesitate bound hand-and-foot Supreme the the follow as declared to law Court, stultify to do so the court failure unworthy make it respect good the confidence and men. Mo.] . . v. State ex inf. Botlrwell Supreme rel. the of State ex Court in ease “The spoken, in Glaves, v. has Mo. l. c. language point,

uncertain this follows: “ forming ‘In common school dis- district, the'new It insisted that the welfare were divided. tricts given excluded of such was not due the judicial does not make statute consideration. The this question, for its settlement the hut invokes discretion place, then superintendent, the first the sub- it, at the rest, to election mits re- ’ quired held. superintendent were not set out

“The acts of the county superinten- and, know, as far as ease, we utterly may proper, have have exercised a dent failed to any, regard If for the welfare judicial question, matter is how this not this court judicial question? make it a “Again Supreme Court ex rel. in State language-: Wright, 270 l c. 387, uses Mo. “ county super- ‘Coming to the contention sufficiently examine intendent not the effects adjoin- proposed certain County: ing in Bates school districts common repeat, regrettably quote is, above we we statute relegates meager fixing its details; it matter of is, creation the boundaries comity super- itself, lays rules, down no hard-and-fast intendent; him but within follow, the limits certain method locating judg- will in “the lines as his of so possible consolidated district,” the best form ment adjoining, light a “due for the welfare of *13 judgment both the measure leaves districts,” quantum adjoining of due to the welfare of the county official discretion the the to sound districts superintendent. question the correctness of the regard by him judgment and the had to the exercised (as required the sole welfare judgment correcting of bad way his exercise dis- SUPREME COURT OF MISSOURI, State ex inf. Bothwell v. Schuster.

eretion) passed special to be on tbe elec- ap- purpose. tion held for In this this case the voters proved the and its boundaries as an exercise both good judgment regard.’ and due says,

“The court further in and im- the same case mediately following quotation: the above “ testimony, ‘In addition, was substantial there super which we set out our facts, in statement of that the which, made on caeteris efforts to obtain facts' intendent paribus, might required he the have been able to exercise statutory quantity regard. due learned trial from the facts shown court found that he required him did all that the No equity statute to do. instruc given; an this suit were asked or is not tions (State People’s 168), 246 Mo. rel. Ice so Co., ex we holding are in of the record bound this-condition the nisi of the court quotation relator that insists the last

“Counsel recognizes right duty trial above the court county superintendent. action of the review the It Supreme if all that the Court must be conceded had said subject quotation, in the had been contained last this fully court would in warranted indeed re then superintendent, county viewing action the but Supreme what account the Court we take when together quoted, above case, Glaves the fact in the substantially repeated ruling the same court that the quoted, Wright case, above maintain that the the in duty hold that Supreme- meant to Court super the action of the county review trial court Supreme clearly put Court intendent contradictory making decisions. It noticed attitude Wright referring case, court that the reviewed had court trial action fact superintendent and that there was a substantial finding of testimony the trial to sustain in court, opinion with the of its words ‘in ad troduced Wright clear it not case Is dition.’ ruling adhere to and did in intended court *14 . OCTOBER v.' Schuster. ex inf. Bothwell county namely, the action the case, Glavés that judicial but review, subject superintendent to was not principle simply to that that, addition find to evidence was substantial reason, another there regard to the superintendent county had due that the Supreme that the It inconceivable district? especially in identical the same hold, meant to Court question upon not page, was that this case and the same subject subject judicial to that was review and judicial ridic- construction wouid Such a review. ulous and absurd. two reasons in that were

“In other there words, against go .relator on that why decision case should the subject judicial point. the matter was not First, that testimony was substantial second, there and, that review, superintendent county had done the effect duty. Evidently his must either reason have been suf- ruling to base the court’s in that ficient case. testimony Wright “Suppose the in the case had testimony not substantial sustain contained action the county superintendent, then there have the would namely, reason, been one left but that matter was anyone imagine not court. Gould reviewable the question Wright had been case that if there about Supreme action question declared the law on Court have judicial review same as it case and good ruling One case? reason for Glaves was two sufficient, of course reasons or a dozen reasons changed could not have result of the effect of the good one reason.” properly motion for trial new overruled. only judgment, remains affirm

It which is accordingly It Railey done. is so ordered. White, CC., concur.

PER opinion Mozley, CURIAM.—The foregoing C., hereby adopted opinion All court. concur. judges