Opinion
No. 39260.
January 4, 1945.
1. SCHOOLS AND SCHOOL DISTRICTS: Formation of Consolidated School District: 1941 Act Not Exclusive. Where a proposed consolidated school district contains an area of more than fifty square miles and has an enumeration of at least two hundred children of school age and consists of contiguous common school districts, the 1941 Act is not exclusive and the district may be formed under the provisions of Secs. 10493-10495 R.S. 1939.
2. MANDAMUS: Schools and School Districts: Bonds: Pending Proceeding in Circuit Court Will Not Prevent Issuance of Writ. The fact that a quo warranto proceeding involving the same issues is pending in the circuit court will not prevent the issuance of the writ to compel registry of the initial bond, a school house having burned and a new building being urgently needed.
PEREMPTORY WRIT ISSUED.
R. Wilson Barrow, Nat M. Lacy and Walter C. Goodson for relator.
(1) Mandamus is the proper remedy to compel the State Auditor to register the bonds of relator. State ex rel. City of Jefferson v. Hackmann, 287 Mo. 156, 229 S.W. 1082; State ex rel. Webster Groves Sanitary Sewer Dist. v. Smith, 337 Mo. 855, 87 S.W.2d 147. (2) The qualified voters of any community in Missouri may organize a consolidated school district for the purpose of maintaining both elementary schools and high schools under the provisions of Sections 10493-10500, inclusive, R.S. 1939; State ex inf. Thompson ex rel. Kenneppe v. Scott, 304 Mo. 664, 264 S.W. 369; State ex inf. Carnahan ex rel. Webb v. Jones, 266 Mo. 191, 181 S.W. 50; State ex rel. Consolidated Dist. No. 9 of New Madrid County v. Thompson, 325 Mo. 1170, 30 S.W.2d 603; State ex rel. Buckley v. Thompson, 323 Mo. 248, 19 S.W.2d 714; State ex rel. Consolidated School Dist. No. 1 of Mississippi and New Madrid Counties v. Jones, 8 S.W.2d 66; State ex rel. Clements v. Clardy, 267 Mo. 371, 185 S.W. 184. (3) The act of the Legislature (Laws 1941, p. 545) does not repeal, amend, or in any way abrogate directly or by implication the Sections of the 1939 statutes under which relator was organized. It simply attempts to provide a way whereby adjacent city, town, or consolidated school districts without limitations as to size or enrollment and adjacent common school districts, all of whose boundaries are already definitely fixed, may be attached to each other and become Consolidated School District. Laws 1941, p. 545; Hull v. Baumann, 345 Mo. 159, 131 S.W.2d 721; State ex inf. Thompson ex rel. Kenneppe v. Scott, 304 Mo. 664, 264 S.W. 369; Nomath Hotel Co. v. Kansas City Gas Co., 204 Mo. App. 214, 223 S.W. 975. (4) Statutes providing for organization of school districts are liberally construed in favor of organization. State ex inf. Carnahan ex rel. Webb v. Jones, 266 Mo. 191, 181 S.W. 50; State ex rel. Fleener v. Consolidated School District No. 1, 238 S.W. 819; State ex inf. Attorney General ex rel. Lincoln v. Bird, 295 Mo. 314, 244 S.W. 938; State ex rel. Gentry v. Sullivan, 8 S.W.2d 616; State ex inf. Barrett ex rel. Cutler v. Foxworthy, 301 Mo. 376, 256 S.W. 466. (5) Pendency of other suit such as quo warranto proceeding in circuit court will not suffice to relieve the State Auditor from the discharge of a duty enjoined by statute. Pendency of other proceeding will not abate or bar mandamus also where in other suit the parties are not the same and where adequate and timely relief cannot be obtained therein. State ex rel. City of Republic v. Smith, 345 Mo. 1158, 139 S.W.2d 929; State ex rel. City of Memphis v. Hackmann, 282 Mo. 292, 202 S.W. 7; State ex rel. Harmony Drainage Dist. No. 3, Saline County, v. Hackmann, 305 Mo. 685, 267 S.W. 608; State ex rel. Wahl v. Speer, 284 Mo. 45, 223 S.W. 655; Perkins v. Burks, 336 Mo. 248, 78 S.W.2d 845. Roy McKittrick, Attorney General, and Vane C. Thurlo, Assistant Attorney General, for respondent; Waldo Edwards and D.L. Dempsey of counsel.
(1) In an action of mandamus to compel the State Auditor to register the bonds of a consolidated school district the Auditor can question the legality of the organization of the district. State ex rel. Consolidated District No. 9 of New Madrid County v. Thompson, 30 S.W.2d 603, 325 Mo. 1170. (2) The remedy by mandamus is reserved for extraordinary emergencies. It is not a writ of right, but is only to be issued when the right to be enforced is clear and will not issue if there is any other remedy. State ex rel. Cook v. Kelly, 142 S.W.2d 1091. (3) Mandamus issues only in case of necessity to prevent injustice or great injury, and if there is doubt of its necessity or propriety, it will not issue. State ex rel. K.C. Bridge Co. v. Workmen's Compensation Comm., 92 S.W.2d 624. (4) Mandamus is a discretionary writ and not a writ of right. The issuance of a writ of mandamus rests in the sound discretion of the court. State ex rel. Cranfill v. Smith, 48 S.W.2d 891, 330 Mo. 252; Perkins v. Burks, 78 S.W.2d 845, 336 Mo. 248. (5) The word "adjacent" as used in the 1941 Act has a clear and unmistakable meaning when the context of the statute is read and other statutes in regard to the organization of schools are read and considered and in which the terms "adjoining" and "abutting" are employed. The word "adjacent" is of Latin derivation from "ad-jaceo", to lie at or near. In ordinary acceptation the meaning of the word is close, close at hand, close to, convenient, in the neighborhood and vicinity of, etc. When used in a statute its exact meaning is determinable principally by the context in which it is used, the subject matter to which it is applied, or the intent of the Legislature. 1 C.J., pp. 1194-1197, 1464-1468. (6) Section 10495, R.S. 1939 and Section 10500.1, R.S.A., p. 600 (Laws 1941, p. 600) deal with the same subject, the 1941 Act in a more detailed and specific way. Therefore, where they conflict, the later act controls. (7) Two statutes relating to the same general subject matter should be read together and harmonized, if possible, with a view to giving effect to consistent legislative policy; but, to extent that statutes are necessarily inconsistent, later statute which deals with common subject matter in particular way will prevail over earlier statute of more general nature. State v. Harris, 337 Mo. 1052, 87 S.W.2d 1026. (8) If two statutes deal with the same subject matter and are inconsistent with each other, so that both cannot be operative as to such subject matter, the latter will be regarded as a substitute for the former one, and will operate as a repeal, although it contains no express repealing clause. State ex rel. Mo. Pac. Ry. Co. v. Public Service Comm., 204 S.W. 395. (9) If two statutes deal with the same subject matter and are inconsistent with each other, so that both cannot be operative as to such subject matter, the later act will be regarded as a substitute for the earlier one and will operate as a repeal thereof, although it contains no repealing clause. Young v. Greene County, 342 Mo. 1105, 119 S.W.2d 369. (10) Where there are two acts on one subject, the rule is to give effect to both, if possible, but if the two are repugnant in any of their provisions, the later act, without any repealing clause, operates to the extent of the repugnancy as to repeal the first. State ex rel. City of Republic v. Smith, 139 S.W.2d 929, 345 Mo. 1158; State v. Richman, 148 S.W.2d 796, 347 Mo. 595; State ex rel. County of Buchanan v. Fulks, 247 S.W. 129, 296 Mo. 614. (11) A statute dealing with a subject in general and comprehensive terms, should be read and harmonized, if possible, with another statute dealing with part of same subject in more minute and definite way, with a view to effecting consistent legislative policy, but special will prevail over general statute to extent of any necessary repugnancy. State ex rel. City of Springfield v. Smith, 125 S.W.2d 883, 344 Mo. 150.
This is an original proceeding in mandamus to compel the State Auditor to register and certify Bond No. 1 of a series of building bonds, aggregating $55,000.00, issued by relator district, which claims to be a consolidated school district. The Auditor denied registration for the sole reason that the district was not legally organized. Such is the limited issue presented by this proceeding on the question of the right to registration, although other grounds, addressed to the court's discretion, are assigned by respondent for the refusal of the peremptory writ.
The facts are agreed. The new district contains an area of more than 50 square miles, and has an enumeration of at least 200 children of school age, and does not include any town or city district which had an enumeration of 500 school children of school age. It consists of territory which formerly comprised the whole of the following eight common school districts, and one town district of Macon County, to-wit: Palmyra No. 69; Valley No. 70; Jake Grove No. 95; Rose Hill No. 96; Manhart No. 98; Rogers No. 102; Prairie No. 103; Hammack No. 104, and the town district, New Cambria Special. All of said common school districts adjoined and abutted the New Cambria town district, except Rogers No. 102, Prairie No. 103 and Hammack No. 104.
The proceedings for the organization of the district were taken pursuant to, and in conformity with Secs. 10493-10500 R.S. '39 (hereinafter referred to as the general act), which proceedings, in brief outline, were as follows: Upon a petition signed by more than 25 qualified voters of the community consisting of the several school districts hereinabove named, the County Superintendent of Schools visited said community, and investigated its needs and determined the exact boundaries of [453] the proposed consolidated district, locating the same as in her judgment would form the best possible consolidated district, having due regard also as to the welfare of the adjoining districts; that said County Superintendent of Schools called a special meeting of all the qualified voters of the proposed consolidated district to be held at the New Cambria City Hall on April 18, 1944, for the purpose of considering the question of consolidation, which meeting was held upon the notice required by Sec. 10495; that at said meeting 291 votes were cast for the organization of the district, and 89 against, and the district was, accordingly, declared organized, and the meeting proceeded to elect six directors.
The regularity and validity of said proceedings are not to be questioned if the sections, supra, are the applicable statutes under the facts here in judgment. Respondent contends said sections do not apply, and that the matter is governed by Laws 1941, pp. 545, 546, providing that, "Adjacent city, town, or consolidated school districts, without limitations as to size or enrollment, or any one or more of the above mentioned districts and one or more adjacent common school districts may be organized into a consolidated school district for the purpose of maintaining elementary schools and high schools." The procedure prescribed by said 1941 Act differs from the general act in several particulars. It requires, among other things, that separate elections be held on the same day in each district of the proposed consolidation, the same to be called by the County Superintendent "on receipt of a petition signed by at least fifteen qualified voters from each district to be included in the proposed consolidation." The proposed consolidation is to be declared in effect "if the proposition received a majority of all votes cast in each district." The notice of election also differs.
Assuming that the components of the relator district, as they existed before the alleged consolidation, were adjacent districts and within the purview of the 1941 Act, we think it was not the legislative intent to provide thereby an exclusive method of consolidation in instances such as at bar. Before its enactment, a town or city district having an enumeration of 500 children of school age could not be included within a consolidated district, nor could a consolidated district be formed unless it contained an area of fifty square miles, and had an enumeration of at least 200 children of school age. [Sec. 10494 R.S. '39.] See, also, State ex rel. v. Smith, 337 Mo. 874, 86 S.W.2d 943. There is nothing in said act, either directly or by implication which denies the right of the County Superintendent, in fixing the boundaries of a proposed consolidated district, under the general act, to include only that territory comprising the whole of pre-existing districts. This being true, and for the reasons above pointed out, we think the two acts can be harmonized, and both given effect.
There is some insistence that we should not grant the peremptory writ because of the pendency of a quo warranto proceeding in the circuit court against the directors of the relator district. Said proceeding was instituted May 3, 1944, whereas the proceeding at bar was not filed until August 14. The former was submitted in the circuit court on August 28, and on September 1, as appears from the agreed facts, the trial judge announced that he would withhold passing on the issues therein until this court determines the instant proceeding. The issues in the two proceedings are the same. The New Cambria school house has burned. The district is without adequate quarters. The bonds authorized are for the purpose of providing the same. Having concluded that the challenge of the validity of the district's organization is not tenable, and because of the urgency of the relator's situation in the respect just mentioned, it is ordered, in the exercise of the court's discretion, that the peremptory writ issue.
All concur except Gantt, J., absent.