State v. Consolidated School District No. 4C

*841 [501] TIPTON, J. This is an action in quo warranto filed in the circuit court of Dunklin County to test the validity of the annexation of Common School District No. 9 to the Clarkton Consolidated School District No. 4C in Dunklin County. The trial court held that four qualified voters of Common School District No. 9 were wrongfully denied their right to vote and that therefore the proposition for the annexation did not receive a carrying vote. The Springfield Court of Appeals held that these voters had not been wrongfully deprived of their right to vote and reversed the judgment of the trial court. The essential facts are that on March 25,1947, a special election was held in Common School District No. 9 on the proposition of annexing its territory to Clarkton Consolidated School District No. 40. When the voters had assembled, Ted Polen, the then president of the board of Common School District No. 9 started the meeting by telling those assembled the purpose of the meeting and the question to be voted upon. He read a part of a statute and then-told the people assembled the remaining part of the statute dealt with the qualification of voters and said that a person to be qualified to vote must have lived in the district for ninety days. R. L. Pierce and his wife, Leone Pierce, then made a remark to the effect that “that lets us out” and they left the meeting without offering to vote. After making these remarks Polen asked Robert Waltrip to serve as chairman. There was no objection to Waltrip’s serving by any person present and he consented to do so. When the meeting was organized there was evidence that Waltrip read Section 10420, R. S. Mo., 1939, dealing with the qualification of voters. On the other hand, there was some evidence that he only undertook to state what the section contained. He . then askd some ladies present to pass out the ballots. When the ballots had been distributed and the voters had marked them, the voters placed them in the ballot box. When all people present had voted the chairman declared the voting closed and appointed tellers who proceeded .to count the ballots. While the ballots were being counted Clifford Donica and his wife came into the room where the meeting was be *842 ing held and asked for ballots but were told by the chairman that they were too late, that the voting' was closed, and refused to allow them to vote. The result of the vote as announced by the chairman was 26 votes for the annexation and 24 votes against. [502] Were the four people, Mr. and Mrs. Pierce, and Mr. and Mrs. Bonica, wrongfully deprived of their right to vote ?■ "That is the only question before us. ■ Section 10420, It. S. Mo., 1939, which is applicable to common schools, says that “a qualified voter within the meaning of this chapter shall be any person who, under the general laws of this state, would be allowed to vote in the county for state and county officers, and who shall have resided in the, district thirty days next preceding the annual or special meeting at which, he offers to vote.” (Italics ours.) The record conclusively shows that the Pierces had moved into the district more than-thirty days before this special school election, but had not lived there ninety days. It also shows that the Pierces never offered to vote, nor were they refused the right to vote by any officer at the meeting, but left the meeting-before the voting started. Under such circumstances we hold that the Pierces were not wrongfully deprived of their right to vote. McGowan v. Gardner, 186 Mo. App. 484, 172 S. W. 408. There was no proof of any fraud as there was in the ease of State at Inf. McKittrick ex rel. Martin v. Stoner, 347 Mo. 242, 146 S. W. 2d 891. In that case the school election was held at 6 A. M. in a remote school house and no notices were posted in the most populous parts of the district. Under those circumstances it was evident that those sponsoring the meeting did not desire a full and fair expression of all the voters of the district. In the ease at-bar, the Pierces were presumed to know the law and the trial court erred in holding that they were fraudulently deprived of their'votes. The special election in question was held under the provisions of Section 10484, R. S. Mo., 1939, which provides that “the voting at said special school meeting shall be by ballot, as provided for in section 10467.” Section 10467 provides that “when all present shall have voted, the chairman shall appoint two tellers, who shall call each ballot aloud and the secretary shall keep a tally and report to the chairman,-who shall announce the result.” We think that when all present had voted and the tellers were appointed that the above section contemplated the voting should be brought to an end. We agree with respondents that we have ruled this section to be directory and not mandatory. State ex rel. Miller v. Consolidated School District No. 7, 318 Mo. 865, 1 S. W. 2d 94; State ex rel. Gentry v. Sullivan, 320 Mo. 362, 8 S. W. 2d 616. Even though the section is directory, the Bonicas were not wrongfully deprived of their right to vote because they were not present until after all present had voted and the tellers had called the vote, although the result of the bal *843 loting had not been announced. In other words, the statute was followed. Directory provisions of a law are not intended by the legislature to be disregarded. 50 Am. Jur. 43. - If the chairman had reopened the voting and permitted the Donicas t© vote,-then we would have a different question before us. Under such circumstances we would have the question of whether such irregularity woUld.be sufficient- to invalidate the election where the statute is directory. From what we have said, it follows that the judgment of the trial ■court should be. reversed and the cause remanded to the circuit court, with .directions to that court to set aside its order of November 24, 1947, and to find the issues for respondents. It is so ordered. All concur, except Ellison, J., who dissents in separate opinion filed.