State ex rel. Rutledge v. St. Louis School Board

Barclay, J. This is an original proceeding to obtain a mandamus against the St. Louis school board, the official title of which is “The Board of President and Directors of the St. Louis public schools.” The members of the Board are joined as defendants. The relators are certain citizens and taxpayers of St. Louis. The object of the desired writ is to require defendant to cause an election for members of the said Board to be held in that city. An alternative writ was issued on representations of the relators. A return thereto has been made by defendants and a demurrer to the return has been argued and submitted. The controlling facts are admitted, and the issue is one of law. The St. Louis school Board is a corporation for the purposes of public education. It is invested with the control and management of the interests of the public schools in the city of St. Louis. It was incorporated in 1833 by a special act, Laws, 1833, p. 37; 2 — 512 — Terr. Laws, p. 399, R. S. 1889, p. 2170, see. 1. But various amendments to the original charter have been made from time to time, the effect of some of which it will be necessary to consider. The Board at the present time is entitled to an official membership of twenty-one. Seven members are elected from the city at large, and fourteen from separate districts, each choosing one member. This is ordained by the act of 1887, popularly known as the “Drabelle law.” Laws, 1887, p. 272, R. S. 1889, sections 8113 and following. That act was held to be a constitutional measure, first, by the General Term of the circuit court, city of St. Louis, and afterward by the supreme court in State ex rel. v. Miller (1890) 100 Mo. 439 (13 S. W. Rep. 677.) The act, among other things, declares that the Board first elected thereunder shall divide itself by lot into two groups of eleven and ten members respectively. The term of the first group is fixed at four years, and of the second group at two years, at the outset of the new arrangement; but thereafter the full term of the office of director is to be four years, excepting only where vacancies are filled, or a holding over is necessary until the qualification of a new member. R. S. 1889, sec. 8115, as amended, Laws, 1893, p. 249, sec. 8115. In accordance with the terms of the law of 1887, an election was held in November, 1891, at which eleven of the present Board were chosen. One of the other group of members (elected in November, 1893) resigned in the early part of 1895, so that the vacancy thereby occasioned is to be filled at the next general school election. Laws, 1893, p. 249, sec. 8115. The power originally given to the board, “to prescribe the time, place and manner of conducting the — 513 — elections of members” has not been wholly repealed, though modified by subsequent amendments. The Drabelle law, however, undoubtedly limited and modified that power in one respect, important to notice. It fixed the full term of membership at four years, after the short terms expired of those drawn by lot for two years at the beginning of the plan of selection established by that law. The Board recognized the force of this change by the rules it adopted for its own government, the first of which, concerning “elections,” is as follows: “Rulel: Elections — When to be held. Elections or directors of the Board of President and Directors of the St. Lo.uis Public Schoois shall be held biennially in the city at large and in the respective districts, on the first Tuesday in the month of November. Such elections shall be managed and governed according to the provisions of Rule 2.” In September, 1895, however, the Board, or a majority thereof, after due consideration, decided to hold no election on the first Tuesday of November in 1895. No election was in fact held at that time, and no election has yet been called for 1895. These facts appear from defendants’ return, filed in this case after the date appointed for the election in 1895, by the rule above quoted. The ground on which the Board has concluded to hold no election at the usual time in 1895 is, to state its substance shortly, that the Board is of opinion that it can not obtain complete registration lists for use at such election, on account of the change of law governing the registration of voters in large cities. Laws, 1895, Special Session, pp. 5 to 43. It is conceded that the Board can obtain the lists as they existed near the close of the month of August, — 514 — 1895; but the claim is made that, as those lists may be imperfect by reason of omissions of names of voters entitled to registry since that time, no proper election can be held, based upon such registration lists as can now be obtained. Id this state of the case relators insist that the Board should be required to order an election. 1. If the Board is under a clear statutory duty to have an election, there can be no doubt that mandamus is an appropriate method of requiring the performance of that duty. State ex rel. v. School Directors (1881) 74 Mo. 21; State v. Brown (1882) 38 Ohio St. 344; State ex rel. v. Ware (1886) 13 Ore. 380 (10 Pac. Rep. 885.) 2. The relators describe themselves as “citizens, taxpayers, and resident householders of the city of St. Louis/’ but it is insisted for defendants that private persons can not set on foot a proceeding of this nature without at least the sanction of the official representatives of the state or of the locality affected by the application. On this point the precedents in other jurisdictions are not in accord. It is needless to review them, for in Missouri several cases' have dealt with this subject, and the conclusion has been reached that where a public right is involved and the object is to enforce a public duty, the people are regarded as the real moving party; and, in such a case, the relator in mandamus need not show any special or peculiar interest in the result, if the performance of the general public duty obviously affects his rights as a citizen. State ex rel. v. Railroad (1885) 86 Mo. 13; State ex rel. v. Francis (1888) 95 Mo. 44 (8 S. W. Rep. 1). We see no reason to depart from that rule; nor do we see anything in the case at bar that prevents its application. — 515 — The relators have the right as citizens of the locality to representation in the sehool Board by members chosen in conformity to the law on the subject. We regard their interest as sufficient to sustain their position as relators under the rulings above cited. 3. But it is next contended that the Board has a discretion to prescribe the time and manner of conducting school elections, and that that discretion can not be controlled by mandamus. The Drabelle law repeats in substance the oldest provisions of the charter of the Board on that point. Laws, 1833, p. 38, sec. 4; 2 Terr. Laws p. 400. But it adds this important modification, namely: “subject to the provisions of this act” (Laws, 1887, p. 273, sec. 4; R. S. 1889, sec. 8116). That act in effect fixed the term of the directors now in office, who were elected under it in 1891, at four years. The language of the •act itself, as well as that of the amendments thereto in 1889 and 1893, plainly contemplates that there shall be .a general school election in St. Louis every two years. Eeading the act as an entirety, there can be no doubt that the legislature intended to limit the power of the Board over the elections of its own members to the extent of requiring elections to be duly held to choose their successors, at some reasonable' time near the close of the terms of office which that act defined. To that extent the discretion of the, Board as to the time of holding elections is limited, and mandamus may be used to keep that body within the limits of that discretion, just as the writ may be sometimes used to require a judicial officer to render some judgment, even in circumstances where the writ can not properly direct what particular judgment shall be pronounced. At the present time the terms of office of the directors in question have expired, ¡according to the Drabelle law. It is hence the duty of the Board under that — 516 — law to call an election to choose their successors, unless the objection next discussed affords a reason for not doing so. 4. The principal ground of resistance to the calling of an election at present to fill the places of the members whose terms have expired is the contention that no sufficient lists of registered voters can be obtained for use at such election, owing to the provisions-of the election law of 1895 for large cities. Laws, 1895,. special session, p. 5, and following. The school Board do not claim that the election-commissioners should hold the school election. On the-contrary, the former assert the power (under the particular terms of the laws governing the Board) to prescribe the time, place and manner of conducting such elections. That power was conferred by the charter of 1833, which is still operative except so far as it is modified by later amendments. That provision of law-being special in its nature should be held yet in force, notwithstanding the very large and comprehensive language of section 16 of the said election law of 1895 (Laws, 1895, special session, p. 12). A special or local law on one .topic is not to be held repealed by a later general law which touches the same topic, unless the intent to repeal the former is manifest. The question on that issue is one of intent, and the-intent is to be gathered from the terms and circumstances of the acts themselves, interpreted according to the established canons of construction. In our opinion the election act of 1895 was not intended to deprive the school Board of the power to* conduct elections for members of that body. Under a statute of 1881 (p. 207) the electors at a school election in St. Louis are those persons “who-are, under the laws in force for the time being, qualified voters for city officers in the city.” This definition — 517 — would require that a person should be registered as a voter in order to participate in a school election, since that qualification (among others) is essential to the right to vote for city officers under the existing laws, enacted in, obedience to a positive command of the constitution. Const. 1875, art. 8, sec. 5. It appears from the papers in this case that the school Board has for many years followed the practice of obtaining lists of registered city voters from the registry officers. Those lists have been used at school elections by virtue of arrangements between the Board and those officers. Under- the act of 1895, governing the custody of the registry lists in St. Louis, the board of election commissioners has control of them as they stood when that act went into effect. By its terms it is provided that the recorder of voters shall deliver the registry books, etc., to the new election board; and that, “all the powers and duties now vested in, and required of, the recorder of voters shall hereafter (unless otherwise provided in this act) vest in, and be required of, said board of election commissioners.” Laws, 1895, special ■session, p. 7, sec. 2. The old registration law, which the act of 1895 was designed to supplant, was certainly, operative until the latter part of August, 1895. The registry lists were at that time the official exhibit of the names of the registered voters. Those lists (or copies) it appears can be had, if desired by the school Board, for the purpose of an election. The present ease does not require us to express an opinion as to the powers and duties of the new election board touching the continuance of registration for the purposes of school or other elections, held prior to the date at which the general registration, contemplated by that act, will begin. — 518 — It is obviously better for us to refrain from determining in advance tbe legality of any proposed line of' action that may be suggested for the holding of the-school election. It is enough now to say that we do not regard the new election law of 1895, referred to, as constituting a sufficient legal obstacle to prevent an election under direction of the Board, in the circumstances here disclosed. Although the terms of office of directors (and consequently the time for general school elections) are now determined by the Drabelle law, the mode and “manner of conducting” the elections are committed to the school Board’s discretion, within the restrictions marked by the law governing the Board. We deem it inappropriate in awarding this mandamus to also direct the course of the Board as to the manner of holding the-election, although we conceive it our duty to direct the Board to order an election. It may possibly be that no question will be raised as to the validity of the course the Board may adopt in conducting the election. Until such a question arises, it is unnecessary to consider its merits or the form it may possibly assume. Even if it is conceded (as defendants urge) that the effect of the new election law of 1895 is to preclude the entry of transfers, or new registration, of qualified voters, for several months after the law became operative, and until after the school election, that state of' the law would not prolong the term of office of any school director, or justify postponing for a year the election of his successor. It would merely indicate an omission on the part-of the legislature to adequately provide for a complete and perfect registration that might be utilized for the-purposes of school elections. — 519 — If the registration law is, perchance, deficient in this particular, the consequence is not a prolongation of the statutory term of a director’s office. It appears to us that the Board is under the plain duty to proceed at once (as promptly as may be, following the usual course) to cause an election to be held to choose the successors to the twelve directors mentioned. The demurrer to the return is sustained, and a peremptory mandamus is awarded, conforming to this, opinion. Brace, O.J., and Gantt, Macfarlane, Sherwood, Burgess, and Robinson, JJ., concur.