State ex rel. School District v. Gordon

LAMM, I. The State Auditor refuses to register and vise under section 5167, Revised Statutes 1899, 45 school bonds, 5-20’s, each of the denomination of $500, dated May 1, 1909’, interest at 5% payable semiannually evidenced by coupons attached, payable at the Mercantile Trust Company in the city of St. Louis and issued by the School District of Memphis, Missouri, for building purposes. The Memphis school district sues out an alternative writ of mandamus. The Auditor enters his appearance through Mr. Attorney-General and, waiving the alternative writ, demurs. In this condition of things the petition stands as and for such writ. The cause being finally submitted on demurrer, we are called upon to determine but a single question, indicated by the second specification of the demurrer, vis.-. “Because the petition upon its face discloses that two separate and distinct propositions were submitted and voted on .jointly.” The petition shows that the proceedings of the school board, the calling and notice of the electiqn, the appointment of judges and clerks, the election itself, the canvass and formulation of the returns, showing the submitted proposition carried by a vote of — 11 — 349 “for the loan” to 60 “against the loan,”, and the execution of the bonds and coupons, were in due form. Further, that the proposed indebtedness ($22,500), with all other, does not exceed 5% of the taxable property in the district, as shown by the last assessment. The allegations relied upon to show the doubleness of the proposition are: First, an order by the school board reciting that it was necessary for the welfare of the inhabitants of the district that a schoolhouse be erected in the first school ward, and an addition and improvements be made to the schoolhouse in the second school ward. Second, an order that an election be called at a specified date and place, reciting among other things, as follows: “For the purpose of submitting to the qualified voters thereof a proposition to incur an indebtedness for said school district in the sum of $22,500 for the purpose of using $20,000 of said amount in building a schoolhouse in the first school ward of said school district and furnishing the same, and $2,500 of said amount to be used in building an addition to and improving the schoolhouse in the second school ward of said district,” etc. Third, a similar recital in the election notice. Relator’s counsel argue that the proposition is single and within the purview of pertinent statutes relating to issuing school district bonds. Mr. Attorney-General, contra. Relator is organized under article 2 of chapter 154, Revised Statutes 1899’, as a town school district, with the special privileges enumerated therein. Section 9865, Revised Statutes, ordains that the school board, when sufficient funds have been provided, shall establish an adequate number of primary or “ward schools” and for this purpose shall divide the district into “school wards” and fix the boundaries thereof. Such board is authorized to select and procure a site — 12 — in each, newly-formed ward and erect a suitable school building therein and furnish the same. If the money to build and furnish the schoolhouse be not on hand it may be raised by direct taxation under the provisions of section 9778, provided such is the judgment of the school board and provided the voters of the district authorize the increased tax under that section. However, if the money be not on hand the school board may borrow money under section 9752, first submitting the proposition to the voters. That is the section under which relator acted. It provides as follows (omitting matter not material): “For the purpose of erecting sehoolhouses and furnishing the same in cities, towns and school districts, the board of directors shall be authorized to borrow money, and issue bonds for the payment thereof, in the manner herein provided. The question of loan shall be decided at . . . a special election to be held for that purpose. , . . The qualified voters at said election shall vote by ballot. Those voting in favor of the loan shall have written or printed on their tickets, ‘For the loan’; those voting against the loan, the words ‘Against the loan’; and if two-thirds of the votes cast shall be ‘for the loan’, the district board shall be vested with the power to borrow money in the name of the district, to the amount and for the purpose specified in the notices aforesaid. . . . "When bonds are voted under this section for the erection of one or more sehoolhouses, to be erected on the same or different sites, ’ ’ etc. In Richardson v. McReynolds, 114 Mo. 641, it was held that under the foregoing section, there was no authority to issue bonds to purchase a schoolhouse site and that funds for such purchase could be accumulated only on direct taxation and by the tax-gatherer. To remedy this condition, in 1903 the General Assembly enacted a new section, strictly in pari materia, numbered 9752a- (Laws of 1908, p. 266) reading: “The pur — 13 — pose for which, an election may he called to borrow money and to issue bonds therefor under section 9752 of this chapter may, in the judgment of the school directors include that of purchasing schoolhouse sites, and the purpose of which the annual rate of taxation may be increased under and in the manner provided for by section 9778 of this chapter may, in the judgment of said school directors, include that of purchasing school building sites and furnishing said buildings.” The foregoing sections (9752 and 9752a) grant the statutory power to borrow money for the purpose of building schoolhouses and furnishing the same and purchasing school sites. They are a code unto themselves. The right determination of the case calls for: (a) An examination of the reasons supporting the proposition that questions submitted to voters should be single and not double; (b) A construction of sections 9752 and 9752a, supra, not hitherto under interpretation on the point now up; And (c) to these may be added whatever aid may be borrowed by parity of reasoning from adjudicated cases in this and other jurisdictions. Attending to the foregoing, we conclude the proposition submitted to the voters of the Memphis school district was well enough. This because: (1) The rule of law that a proposition submitted to a vote of the people for their adoption must be. single (as “single” is defined in the law), finds voice in our constitutional provision (Constitution, art. 4, sec. 28) providing that: “No bill . . . shall contain more than one subject, which shall be clearly expressed in its title.” And the reasons underlying that constitutional interdiction are precisely the reasons supporting the proposition asserted by our learned Attorney^ General in the case at bar. Heretofore the principle — 14 — has not been frequently before this court as applied to propositions voted by the people, yet the constitutional provision has been under exposition many times, and the correct interpretation of that provision is not only well established, but is germane to the case in hand; since it is permissible for courts to reason from similars to similars. At the threshold of the case, then, lies an investigation of the interpretation put upon said constitutional provision. In State v. Miller, 45 Mo. l. c. 497, in defining and illuminating the purpose, tenor and scope of that provision it was well said: “The courts in all the States where a like or similar provision exists have given it a very liberal interpretation, and have endeavored to construe it so as not to limit or cripple legislative enactments any further than what was necessary by the absolute requirements of the law. An exact and strict compliance with the letter would render legislation almost impracticable, and would lead to a multiplicity of bills which would make our statutes ridiculous. The principle is a correct one, and the intention was good; it was designed to strike down a most vicious and corrupt system which prevailed in our legislative bodies, and which operated as a surprise, and was productive of fraud and plunder. It was intended to kill ‘log-rolling’ and prevent unscrupulous, designing men and interested parties from dexterously inserting matters in the body of a bill, of which the title gave no intimation of the true character, or of comprising subjects diverse and antagonistic in their nature, in order to combine in its support members who' were in favor of a particular measure, but who could not carry their object without an agreement to go' for some other measure, when neither, on its own merits, could command the requisite majority.” Following these general observations it was said in that case that if the matters embraced in the bill were congruous and had legitimate connection or relation to — 15 — each other, the generality of the title would not make the bill objectionable; that if there was but one subject, the mode in which the subject is treated and the reasons which influence the Legislature do not make the bill bad; and that the provision does not call for a too vigorous and technical construction. This, because the application of rules of nice and fastidious verbal criticism would often frustrate the action of the Legislature without fulfilling the intention of the framers of the Constitution. Accordingly it was held that an act entitled, “An act to prevent the issue of false receipts or bills of lading, and to punish fraudulent transfers of property by warehousemen, wharfingers and others,” could include under the designation of “others” all persons obtaining the possession of goods and having the indicia of ownership from transferring, hypothecating or pledging them in fraud of the rights of the seller or vendor — the act being meritorious and being intended to promote honesty and prevent fraud and the subjects having a natural connection with one another. Running through a long line of cases the reasoning adopted and propositions ruled in State v. Miller have been steadily approved and followed. For example, in State ex rel. v. Miller, 100 Mo. 439’, it was ruled that where all the provisions of a statute fairly relate to the same subject, having a natural connection with it, and are the incidents or means of accomplishing it, then the subject is single. Accordingly it was held that an act entitled, “An act fixing the number of directors in public school boards in certain cities, and providing for election of such directors, and for districting said cities therefor,” meets the requirements of the provision. ' To the same effect are Ewing v. Hoblitzelle, 85 Mo. 64; State v. Morgan, 112 Mo. 202; Lynch v. Murphy, 119 Mo. 163; State ex rel. v. Heege, 135 Mo. 112; — 16 — State v. Bixman, 162 Mo. 1; Elting v. Hickman, 172 Mo. 237. In other cases we have resolved that the object of the constitutional provision was to prevent incongruous matters being voted on together. That if the title is not misleading and is not designed as a cover to vicious or incongruous legislation it will do, although it does not descend to details. And in other cases we have resolved that matters germane to the subject do not constitute doubleness, but that matters having no material relation to each other are double in the sense interdicted. [See a learned note under section 28, article 4, Constitution, p. 186, vol. 1, Mo. Ann. Stat., 1906, where many authorities are collated.] Recurring now to what has been already said, to-wit, that the constitutional inhibition against doubleness in a bill to be voted by the lawmaker is one and the same in principle with the rule of law against doubleness in a proposition to be voted by the people, it is self-evident that the mischiefs struck at by that rule against doubleness invoked by respondent to invalidate the bonds of the Memphis school district are of kith and kin to the mischiefs struck a.t by the constitutional provision we have been considering; and courts deem them one and the same. Thus: In Hubbard v. Woodsum, 87 Me. l. c. 95, a proposition alleged to be double was put to a vote of the people and Peters, C. J., says: ‘ ‘ The idea on which this contention of the complainants is grounded is found in the construction which courts have given to constitutional provisions existing in some of the States prohibiting their Legislatures from embodying two distinct and independent, private or local subjects in one act. In such States two or more schemes of private legislation cannot be grouped together. The object is to prevent a combination of different interests where each one may help the other; ‘to prevent,’ as Folger, J., expressed it in a New York case, ‘the joining one local subject with another — 17 — or others of the same land so that each subject should gather votes for all. ’ ’ ’ The vote of the people on a proposition stands as in the nature of a legislative act. A successful vote on a proposition is in the nature of the adoption of a law. The proposition when adopted becomes, in a sense, law — a local act; therefore, as already pointed out, the method of its adoption is within the principle of the constitutional provision controlling legislation. [McMillan v. Lee County and Boyles, 3 Ia. 311.] Cases may be found whose facts called for judicial denunciation, where odious were united to good propositions in order to pull the former through and where it has been ruled that such conduct amounted to “jockeying” and “logrolling” and unjust and unfair “maneuvering” — in short, a, fraud upon the people. [Supervisors, Fulton County v. Railroad, 21 Ill. l. c. 373 et seg.] In another case (Gray v. Mount, 45 Iowa l. c. 595), the facts denounced were, characterized as “the common device of an auctioneer in disposing of worthless goods, whereby a good article is mingled with them and made to draw bids, or the cunning tricks of gamesters to induce wagers of the unwary.” But all these similes, metaphors and comparisons justify themselves in connection with the concrete facts discussed in the particular case, and I have séen no case that discusses on principle the doubleness of a proposition submitted to a vote, which attempts to apply any different reasoning or principle than is applied to the constitutional provision limiting a legislative act to one subject. We are free then to borrow and apply the doctrines announced in the one to the other. It has been decided that in applying the constitutional provision against doubleness each ease is singular to itself and must stand or fall on its own facts. Says Burgess, J., in Witzmann v. Railroad, 131 Mo. l. c. 618: “Adjudicated cases do not, as a general — 18 — rule, afford us much assistance in passing upon questions of this character, other than in a general way, as each case must be adjudged according to its own peculiar facts and the directness or remoteness, as the case may be, of its provisions to matters in consonance with its title.” (2) Referring now to. section 9752, to cognate sections and provisions in the Constitution, it will be seen that the controlling thought is the increase of taxation beyondi the even, modest level of conventional and prescribed statutory rates. Bonds at end mean taxation. Taxation is a tender and jealous point. Therefore, the school law has preserved to the people a right to a direct vote (not on ,my tax, but) on an increase over the statutory level implied by the issue of bonds — that is, the people vote the bonds, and under the Constitution and law the school board and the taxing officers must correspondingly increase the tax rate. Under our statutory scheme it is apparent that the division of a, town district into school wards (thus necessitating more than one schoolhouse) is not deemed a matter of such quick and personal concern to the individual voter as is the increase in tax rates. The same may be said of the improvements of this or that schoolhouse, and of the number of schoolhouses built in a school district. The law contemplates that (absent an increase of taxation) the school patron and the taxpayer exercise only a representative voice in such matters and must rest upon the informed judgment of the school board in that behalf. Of necessity this must be so. The members of such boards are charged with that discretion. They are selected and elected by the voters personally because of their stability and wisdom of judgment in that behalf and because, presumably, they have a live and abiding affection for the common schools. — 19 — Accordingly if no increase of taxation be necessary and if the district has accumulated by gift, by sale of other school property or otherwise through routine .of taxation, a. surplus sufficient to buy sites, build schoolhouses and furnish the same in the school wards of a town school district, the statutes do not contemplate that the voter should be called upon for a direct vote on building one or more ward schoolhouses, or furnishing the same or in buying schoolhouse sites. The board of directors may move and act on their own initiative — contra when money is to be borrowed or an extra tax levied. Nothing we say is to be construed as meaning that the object to which the borrowed money is to be appropriated is not an integral part of the proposition to be submitted to a vote. Necessarily it becomes an integral element in .order to make the proposition intelligible and carry information to the voter. [City of Denver v. Hayes, 28 Colo. 110; Thompson Houston Electric Co. v. City of Newton, 42 Fed. 726-7.] Manifestly the natural place a lamp should be hung out to guide school boards and courts to the right goal of interpretation is in the very statute itself. These statutes are not charts to those learned and skilled in subtle refinements and dialectics, but charts to guide plain, matter-of-fact, every-day folk. That fact, I think, is the master-key to unlock the door of correct interpretation. Attending to the statutes, one would naturally expect that if the Legislature intended the proposition of building a schoolhouse in each of two wards should be split in twain it would have said so; and if the matter of furnishing the schoolhouses when built was a separate and distinct proposition from building them, it should have said so, and if the proposition of buying schoolhouse sites on which to erect the houses was a distinct and independent proposition from building and furnishing, it would have said so. But sections — 20 — 9752 and 9752a say nothing of the sort. No word in any of them squints that way. To the contrary they speak of schoolhouses (not one, but all necessary), of school sites (not one, but all requisite) and the furnishing of schoolhouses, conjointly, in the plural, not as detached, independent and incongruous propositions but as related parts of one subject, not as a double subject but as a single subject. Accordingly we should hesitate long before we split that subject by driving a wedge of interpretation between its elemental parts, on the theory the parts are incongruous — detached and independent propositions not to be joined within the principle interdicting doubleness. We doubt not many bonds of Missouri school districts are outstanding, voted on the theory that building two or more schoolhouses, buying two or more sites and furnishing houses built on those sites, was a single statutory subject-matter, properly put to be voted up or down as one proposition. To place a bar-sinister across such bonds is a matter of so much gravity to the commercial honor of the State that courts should approach that result allowing every reasonable intendment in favor of validity and with something of the same hesitancy they approach the determination of the unconstitutionality of a statute; for, as said, the vote of the people stands in just relation to the enactment of a statute, and the proposition carried stands in just relation to a local law — they stand or fall on the same character of reasoning. (3) Any whole or entire subject or proposition may be composed of parts and any part by further refinement may be found to be composed of other parts. To illustrate: Let us suppose that any use of school funds in the improvement of a school building could be made only on a vote of the people. The school board conclude that two windows are necessary in a schoolhouse. Are two windows a single or a double subject or proposition? If double then is one — 21 — window a double or a single proposition? Mark, a window necessitates a hole in the schoolhouse wall. It means sash, glass, a window frame, casing, weights, pulleys, catches, etc. It is not insupposable that the voter might have his own ideas about the number of panes of glass to go into the window and his own idea on each of the elements making up a window including the hole in the wall. Is each of these elements to be submitted to the voter as a separate proposition? It is obvious that such refinement produces ridiculous results and is analysis run mad, precisely as pointed out in the Miller case in 45 Mo., supra. [See in this connection the reasoning of Peters, C. J., in Hubbard v. Woodsum, supra.] If the law be as contended by the learned Attorney-General then a town school district having no site in either of two wards and no schoolhouse and no plumbing, furnace or aught else to furnish the same, faces several independent propositions each to be submitted as single. For instance: (a) Shall the district issue bonds to buy a schoolhouse site in ward one? (b) Shall- it issue bonds to buy a site in ward two? (c) Shall it issue bonds to build a schoolhouse in ward one? (d) Shall it issue bonds to build a schoolhouse in ward two? .. (e) Shall it issue bonds to furnish the schoolhouse in ward one when built ? (f) Shall it issue bonds to furnish the schoolhouse in ward two when built? Now it is obvious to my mind that no such absurd excess of detail was within the legislative intent; nor is it “logrolling,” or “jockeying,” or “maneuvering,” or using the arts of the “auctioneer,” or “gamester,” to unite those parts into one sensible, congruous whole, and to put that whole to the people as one subject. No — 22 — part of that general subject can be said to be odious or unworthy. Every part is g’ermane and related. Every patron in the Memphis school district is interested in the uplift of the schools of the entire district —the high school being the cap sheaf of the system and the ward schools feeding into that. The board has determined, as it had the right to do, that the general improvement of school facilities was necessary; and sites, houses and furnishing' are hut correlated and connected parts (incidents and details) of the rounded improvement. Of course, in the proposition submitted there was no element touching the purchase of schoolhouse sites, but what is said is applicable to a proposition absent that element. Stress is laid by way of argument on preserving the liberty of choice of the voter. As to that we say: Liberty of choice is excellent and quite worthy of the law’s protection. But, observe, the prime thing in sections 9752 and 9752a, is schools, schoolhouses, and liberty of choice is directed to providing the wherewithal to increase such school facilities as are determined necessary by the school board — not otherwise. Those acts relate to the business administration of school laws and that central idea must not be obscured by side issues. We make no manner of doubt that the liberty of choice to the individual voter may be gently and reasonably restricted to a rounded proposition as distinguished from the elements of that proposition. No other course is feasible or likely to result practically and. sensibly. To illustrate: the slips and inadvertences of individual voters are proverbial. Let us suppose that propositions a, b, c, cl, e and † are printed on a ballot with the words “for the loan” and “against the loan” after each proposition. The collection of those phrases on one ballot is confusing to the voter. So a failure to erase is fatal to the vote. Now, suppose b and c be voted and a fail, how stands the mat — 23 — ter? Ox that a and c are voted and e fail, what then? Or that a and e are voted and c fail? Other hypotheses of the same sort and leading to the same abortive end might be put. Or suppose the group of propositions relating to Ward 1 succeed and the group relating to Ward 2 fail? In that event there would not be sufficient school facilities for the district and the school board might better build a larger and more expensive schoolhouse in Ward 1 to supply the school wants, so that the proposition as to Ward 1 is no longer sensible. Vice versa, the same might be true if the proposition as to Ward 1 fail and that as to Ward 2 carry. We are of the opinion that the statutes in hand contemplate that the liberty of the voter should be exercised on the concrete whole encompassed by the words of the statute, if, in the judgment of the school board, the plan as a whole was a proper improvement to challenge a vote of the district. There can be no doubt that if the proposition we are considering was an act of the Legislature instead of a proposition voted by the people, the act would stand as against the criticism leveled at it in the case at bar. May we deal more coldly and fastidiously with the people acting as sovereigns than we do with the lawmaker moving in his orbit? If so, why? (4) ' The ruling announced is well within precedents. Thus: In State ex rel. Columbia v. Allen, Auditor, 183 Mo. 283, it was ruled that a proposition to purchase an existing waterworks and light plant and to provide for their extension so as to meet the increased needs of the inhabitants was a single subject and might be voted on as such. It can be readily seen that by superfine analysis that proposition could have been split into parts and that voters might well entertain a diversity of views on one or another part. In State ex rel. Canton v. Allen, Auditor, 178 Mo. 555, it was ruled'that an order to test the sense24 of the voters on the subject of issuing bonds for the purpose of constructing, maintaining and operating or purchasing an -electric light plant to supply the town •and all persons and parties therein with light, was a single proposition as singleness is defined and contemplated by the law. It -can readily be seen that one of the parts of the foregoing proposition was whether the city of Canton would go into the manufacture and sale of electricity to consumers. Another was whether they should purchase a plant outright. Another was whether they should construct a plant from the ground up. All these parts were held to constitute one subject and one proposition and that holding cannot be justified unless we apply the test that the parts are related, congruous and germane to one general municipal subject, to-wit, light and bonds to pay therefor. In State ex rel. Bethany v. Allen, Auditor, 186 Mo. 673, it was ruled that a proposition to issue bonds for the construction of a city hall and for the improvement of a waterworks and light plant was double. Obviously the parts of that proposition were not germane or related and were incapable of becoming one single municipal subject. There was no natural connection between a city hall and a municipal water and light plant. It was an omnib-us bill pure and simple. In State ex rel. Chillicothe v. Wilder, Auditor, 200 Mo. 97, a proposition to issue bonds for a waterworks and electric light plant was held single. The bonds being invalidated for other reasons, it was recommended that in the next vote the form of the proposition be changed so as to call for “a combined waterworks and electric light plant.” While the waterworks and electric light plant might be run by the use of the same fuel and in part the same machinery and under the same management and thus unified, yet it is manifest that building a schoolhouse in one ward and improving one in another have more elements of unity. — 25 — In the Chillieothe case water and light were supplied. In the Memphis proposition the purpose is to furnish increased school facilities. If in the Chillieothe proposition water and light, by consumption of the same fuel under the supervision of one department and of the same agents of the city become single, so much the more does the improvement of the school facilities in an entire district, though the houses may be in separate wards, become a single proposition. In State ex rel. Joplin v. Wilder, Auditor, 217 Mo. 261, the proposition submitted was for a “sanitary sewer” in one district and a “storm sewer” in another. The scheme involved two different systems of sewers and it was ruled a double proposition. The Joplin case may be distinguished from the case at bar, and therefore is not controlling. In People ex rel. Mariposa County v. Counts, 89 Cal. 15, it was' ruled that the proposition to issue bonds for the construction of two public wagon, roads, one from Coalterville to Bear Valley and the other from Mariposa to Yosemite, was composed of parts that were germane and related and therefore not bad for doubleness — the said roads intersecting with an existing road. In People v. Dunn, 80 Cal. 211, it was ruled that providing a permanent site for the California Home for the care and training of feeble-minded children and the erection of suitable buildings was a single purpose. In Rock v. Rinehart, 88 Iowa 37, Iowa county had salable swamp lands. Marengo was the county seat. There was no court house. A proposition was submitted to the voters to erect a court house in Marengo not to exceed the sum of $50,000' and to pay for the same out of the sale of swamp land. It was held a single proposition. Obviously that ruling could only be sustained on the theory that the two parts of the proposition were germane and were so related as to — 26 — make a congruous whole, because there were two elements to it — one, the erecting of a court house; the other, the sale of swamp lands to pay for the same. In Truelsen v. Duluth, 61 Minn. 48, the proposition put to the voters was to erect or purchase a water and light plant and issue bonds to pay for the same and it was held not double. In that case the election was held invalid because other incongruous' and self-destructive propositions were submitted. In Hubbard v. Woodsum, 87 Me., supra, it was ruled that a proposition “to erect new county buildings, including court rooms, offices for the several county officers, jury rooms, library rooms and fire proof vaults for the records of the probate office, register of deeds, clerk of the courts and county treasurer; also jail and jailer’s house at a cost of not to exceed $30,000, ” on a described lot, and to hire money to build all said buildings by issuing the notes and obligations of the county, was but a single proposition and comprised but one subject. In People ex rel. Attorney-General v. Caruthers School District, 102 Cal. 184, it wás ruled that a proposition to purchase a lot and build a schoolhouse by issuing bonds covered but one subject. The identical proposition was resolved in the same way in People v. Sisson, 98 Ill. 335. In Wimberly v. County of Twiggs, 116 Ga. 50, it was ruled that a proposition to build and furnish a court house, coupled- with one to build and furnish a jail, setting apart a certain sum for one and a certain sum for the other, all to be paid by one issue of bonds, comprised but a single subject and was not bad for doubleness. In Kemp v. Town of Hazlehurst, 80 Miss. 443, it was ruled that a proposition was not double the purpose of which was to erect a waterworks and electric light plant. — 27 — We deem the cases cited persuasive authority for the conclusion announced, although cases may he found ruling the other way. The premises considered, our order for an alternative writ of mandamus should stand and an absolute writ should issue. It is so ordered. Valliant, G. J., and Gantt and Woodson, JJ., concur; Burgess and Fox, JJ., concur in the result; Graves, J., dissents.