The opinion
ELLISON, J.
(dissenting). — I respectfully dissent from .the
holding of.the principal opinion sustaining the action of the Chairman of the special school election meeting in denying Mr. and Mrs. Donica the right to vote on the annexation, proposition. They were qualified voters but had arrived a few minutes late, after the actual balloting but while the ballots were being counted. The statute, Sec. 10484, R. S. 1939, Mo., R. S. A. does not prescribe the hours within such meetings shall be held unless by its reference to Sec. 10418. And the- [503] latter merely provides annual school meetings shall commence at 2 p.’clock p. m., but says nothing about when they shall close.
Sec. 10484 further refers to Sec. 10467 as governing the voting procedure at the meeting, and the latter section provides: “And each person desiring to vote shall advance to the front of ■ the chairman and deposit.his ballot in a box to be used for that purpose. When
all present shall have voted,”
— the chairman appoints two tellers who count the votes aloud. A tally is kept and the result of the voting announced. There is nothing in the statute about declaring the balloting closed before that, and Mr. and Mrs. Donica were “present” before all the ballots had been counted and the result announced.
The meeting was rather informal, with only fifty country people voting. Doubtless they were acquainted with .each other, and their children, convenience and taxes were affected. As the principal opinion states, this court en banc has held that these statutes, affecting people in such rural emdronments, are for the most part directory and not mandatory. State ex rel. Miller v. Consol. School Dist. No. 7, 318 Mo. 865, 869 (4), 1 SW. (2d) 94, 95 (4). The provision of Sec. 10484 violated in that instance was the one requiring the voters to file up singly to the ballot box in front of the chairman and deposit their ballot therein. It was contended a violation of that provision had resulted in the stuffing of the ballot box, but this court ruled the mere .violation of the statute did not invalidate the election.
The same doctrine was announced in State ex rel. Atty. Gen. v. Sullivan, 320 Mo. 362, 368 (3), 8 SW. (2d). 616, 618(4), where it was
*844
said: “Tbe trend of our rulings bas been to sustain tbe validity of tbe organization of'consolidated districts, unless it was clearly shown that a failure to comply with the general election' laws bas resulted in the impairment of
individual
rights or has proved detriniental to the interests of the people .• . . ” [italics mine]. Further-, 59 C. J.; p. 1079, §634 provides: “So a statute requiring a public body, . merely for the orderly transaction of business, to fix the time for the performance of certain acts which may as effectually be done at any other time is usually regarded as directory.”
The theory of the principal opinion appears to be that if- the school election authorities deviate from a directory statute it will not invalidate the election, but if they enforce it rigorously 'the voter cannot complain, notwithstanding he is denied-the right to 'vote. In other words, the discretion is lodged exclusively in the authorities. In my view that is not the law. The principal opinion' quotes substantially (without quotation marks) a part of a senténce'from 50 Am. Jur., p. 43 , §20: “directory provisions (of a'law) are'not intended by the legislature to be disregarded.” But in that text the same sentence goes on to say: “and where the consequences of not obeying' them in every particular are not prescribed,’ the courts must jtidi’cially determine such consequences.” That is to say, the discretion is in the
courts,
and not exclusively in the officers. And this necessarily implies the voter can tender the issue.
The vice in a contrary view is apparent. A school election officer could treat a statute as director when it operated in favor of voters entertaining his own view, and as mandatory when invoked against adversaries. ’There is a case in point, in my opinion. State ex rel. Ellis v. Brown, 326'Mo. 627, 633(2); 33 SW. (2d) 104, 107 (8), a decision by the court en banc, which deal! with the registration statute in Kansas City which required an absent voter to filé his application to register not' later than 'the fourteenth day preceding a’ primary election, the election commissioners to sit on three days of the week preceding the election to hear such applications, and the applicant’to ■ appear before the board on some one of those three days. A particular voter in that case was absfent from the city and failed to do so.' Thereafter when he did appear the board of election commissioners refused to entertain his application because he was not within the statutory time limit. This court held the statute, Laws Mo. 192] [2-Ex. Sess.] p. 19,. Sec’s 30, 33, [504] was not mandatory but directory and that the voter ivas entitled to be registered. In that connection the opinion said:
*845
either of the two respects -mentioned shall preclude his right to be registered. Now every person having the qualifications prescribed by the Constitution has the right to vote, and the sole objective of the statute is to determine the individuals \vho possess those qualifications and make a public, record thereof. Such record when made tends to prevent repeating, colonization and other fraudulent abuses of the franchise. The making of the record and the truthfulness of its recitals are the essence of the thing the statute requires to be done and not the time in which it is to be done . . . . ”
*844
‘1 The statute does not prescribe the consequences of the failure of ah applicant either to file his application not later than the fourteenth day preceding the election or to 'appear before the election commissioners on Monday, Tuesday or Wednesday of the first week prior to the election; it does not declare that a failure of an applicant in
*845
This decision has since been recognized three times as authority under, its facts. . Morris v. Karr, 342 Mo. 179, 182 (2), 114 SW. (2d) 962, 964 (2); State ex rel. Woodmansee v. Ridge, 343 Mo. 702, 709 (5), 123 SW. (2d) 20, 23 (6); McIntosh v. Wiggins, 356 Mo. 926, 931 (3), 204 SW. (2d) 770, 773 (7).
• In the Ellis' case jiist reviewed above, a
statute
fixed the time when the yoter should appear before the board of election commissioners to register -as a voter in the primary election. In this case the statute does not fix the time, other than to say that when
all the voters present
shall have voted- the votes shall be counted and recorded, and the result of the vote announced. The statute does
not
say the chairman of the meeting may declare the voting closed before that. Undoubtedly the chairman would have the power to declare the election ended after every voter present had voted and the result of the election was ascertained.- But in fairness it seems that could not be done in the circumstances of this-case. The Vote-was close:-26 for annexation; 24 against it. 1 -The -votes- of Mr. and Mrs. Donica might have resulted in- a tie vote-; or they might have increased the majority from 2 to 4. But they were entitled to vote. I think the judgment of the circuit court should be affirmed as to -voters -Mr. and Mrs. Bonica.