(287 S.W.) STATE ex rel. ROBERTSON et al. v. LEE, (Supreme Court of Missouri, En Banc. 1. Mandamus Oct. Where return admitted all material facts alleged in petition for mandamus, accepted by respondent as alternative writ, demurrer thereto may be treated as motion for judgment on pleadings. 2. Schools and school districts 19(1)Where application by consolidated school district for state aid was based on one statute, and apportionment was made, there was no mistake which could be corrected by subsequent application under another statute (Rev. St. 1919, §§ 11179, 11181, 11295, and section 11264, as re-enacted by Laws 1925, p. 331). Where apportionment of state aid to consolidated school district was made on application based on Rev. St. 1919, § 11295, there was no mistake which, under section 11181, would authorize reapportionment under section 11261, as re-enacted by Laws 1925, p. 331, for which such application did not state necessary facts, in view of section 11179. Original proceeding by the State, on the relation of J. L. Robertson and others, composing the Board of Education of Blodgett Consolidated School District No. 35 of Scott County, and another, for mandamus to be directed to Charles A. Lee, State Superintendent of Public Schools. Writ denied. M. E. Montgomery, of Sikeston, and Irwin & Dunn, of Jefferson City, for relators. average daily attendance during the preceding year; and that the average daily attendance of the preceding year was 302 children, which, multiplied by 50, would show the district to be entitled to expend, under section 11264 of the 1925 act, the sum of $15,000 for school purposes. It is set forth in said petition that, because of some misapprehension or doubt on the part of the authorities of said district as to whether or not the district was legally entitled to receive state aid under section 11264, page 330-332, Laws of Missouri 1925, no formal application was made under the provisions of that section, nor attempted to be made, but that the district, not wanting to take chances on losing out entirely on the apportionment of state funds, did apply for, and receive, state aid under section 11295, R. S. Mo. 1919, which latter section afforded an amount materially less than could have been obtained if the application had been made under section 11264, supra. The aid received by the district upon its application was $200, and relators do not question the correctness of this amount under the provisions of said section 11295, R. S. Mo. 1919, upon which the application was based. Relators contend, however, that, because of a misunderstanding of the law, or a doubt as to the district's rights under the law at the time of making application in 1925, state aid should be awarded at this time in the sum of $2,498.95, on the ground that an error in apportionment was made, and they are willing for the amount received in 1925 to be credited on the award which they now ask to be made. Respondent concedes that the aid now North T. Gentry, Atty. Gen., and Claude E. claimed by relators might have been legiti Curtis, Sp. Asst. Atty. Gen., for respondent. mately granted had the same been applied for, but insists that, by applying for, and re new apportionment merely because relators may have misconceived the statute under which they might have obtained a larger amount for the district. OTTO, J. [1] This is an original proceed-ceiving, aid under the provisions of section ing in mandamus. Prior to the issuance of 11295, supra, relators elected the form of aid our alternative writ the respondent entered they would take, and therefore are precluded his voluntary appearance waiving the issu- from the provisions of section 11264, supra. ance and service of the writ, accepted rela- In other words, the position of respondent tors' petition as and for such writ, and filed is that there was no mistake in making the his return thereto. To respondent's return apportionment in 1925; that the aid granted relators filed a demurrer which may be treat- was in exact accordance with relators' aped as fulfilling the office of a motion for judg-plication; and that respondent cannot now ment on the pleadings. The return admits be required to reopen the case and make a all the material facts alleged in the petition. [2] It is alleged in the petition, and admitted in the return, that Blodgett consolidated school district No. 35 during the school year of 1925-1926 maintained an approved high Under these circumstances the question for school of the first class; that it voted and this court to determine is whether or not the levied a tax of $1 on the $100 valuation for act of the school district in purposely applythe pay of teachers and incidental expenses; ing for aid under section 11295, supra, when that the money derived from said tax levy, it could have applied for and received aid together with the cash on hand and the in- under section 11264, supra, but through a miscome received from county, township, and apprehension of the law did not do so, constate funds, produced a total of $12,601.05; stitutes such an error in making the apporthat said sum was less than $50 per pupil in 'tionment as could be afterwards corrected. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The authority for correcting errors in the apportionment of the school funds is found in section 11181, R. S. Mo. 1919, which reads as follows: "The state superintendent of public schools is hereby authorized to correct any error made in the apportionment of the public school funds among the various counties of this state out of the public school fund of the year next following the date when such mistake was made and the amount set apart to any county for the purpose of correcting an error shall be by him certified to the state auditor and to the county clerk, and the state auditor shall draw a warrant on the state treasurer for the amount so certified in favor of the treasurer of said county, and the county clerk shall apportion said funds to the various districts in said county as the funds of the year in which said error occurred, and the county treasurer may pay outstanding warrants for teachers' wages issued during the school year in which said error occurred, not to exceed the correction made." It was obviously the purpose of the Legislature in repealing section 11264 of the Revised Statutes 1919, and re-enacting the same in a new form (Laws of 1925, page 330), to guarantee consolidated school districts a sufficient amount of state aid to enable them to expend $50 per child per year in average daily attendance, where such districts bring themselves within the requirements of said act, and do not have sufficient funds of their own to enable them to make such expenditure. The requirements to be met by a consolidated district as set forth in the 1925 act are as follows: First. It must have voted 100 cents on the $100 assessed valuation for the pay of teachers and incidental expenses. Second. It must have maintained an approved high school of at least the third class. Third. It must have given an approved course of at least one year in agriculture. district to the aid therein provided for, to wit: (1) The district shall show its assessed valuation; (2) that it is organized as a town, city, or consolidated district, as the case may be, with six directors; (3) that it has levied the maximum provided by law for teachers and incidental expenses; (4) that it maintains an approved high school, and employs a competent principal to teach said high school and supervise the elementary school; (5) that it pays its teachers at least $40 per month; (6) that it admits nonresident pupils to its high school at a reasonable tuition fee; (7) that during the preceding year the daily attendance in the high school averaged at least 15 pupils; (8) that it gives an approved course of at least one year in agriculture. It will be seen that the application re quired under section 11295, supra, embraces generally the conditions set forth in section 11264 of the 1925 act, and more. The district here involved had levied the maximum tax provided by law for the pay of teachers and incidental expenses; it was maintaining an approved high school of at least the third class; and it was giving an approved course of at least one year in agriculture. There is nothing before this court, however, to show that the data submitted by said school district, and on which its state aid was awarded, set forth the fact that the average daily attendance during the preceding year was 302 children. Neither is there anything to indicate that the data submitted showed that the amount of the district's own money from all sources was insufficient to enable the expenditure of $50 per child based on the average daily attendance. The showing made did enable the state superintendent of schools to determine that the district was entitled (and this was the showing intended) to receive state aid under section 11295, R. S. Mo. 1919, and the aid was awarded accordingly. . Section 11264, supra, as re-enacted in 1925, If, after having met the foregoing require-makes it the duty of the state superintendent ments, it should be able to show that the of schools, in the event that a consolidated money derived from the tax levy so made district comes within the act, to apportion to when supplemented by the amount of cash on such district a sum suflicient to enable it to hand and by the estimated income from coun-expend $50 per child in average daily attendty, township, and state funds is insufficient to enable the expenditure of $50 per child, based on the average daily attendance during the preceding year, then the district stands entitled to receive state aid in an amount equal to the difference between what it is entitled to expend and the amount which it actually has of its own funds. Prior to June 30, 1925, the authorities of Blodgett consolidated school district prepared and transmitted to the county clerk of Scott county an application for state aid. Said application, as stated before, was purposely based on section 11295, supra, a statute authorizing limited aid to town, city, and consolidated districts upon application therefor. That section requires the following showing to be made in order to entitle the ance, when, but only when, the aggregate of its own moneys from all sources is insufficient to enable such expenditure. The right of a consolidated school district to receive the aid provided for by the 1925 act does not rest altogether upon the form of the application, but it does depend upon the fact of application (section 11179, R. S. 1919). The application is only the means used for the purpose of advising the state superintendent of whether the district is entitled to aid and of the exact amount it should have. If a district should set forth in an application all the elements necessary to advise the state superintendent of schools of these facts so he would be able to determine, not only the right, but also the particular amount, the district was entitled to receive, then unques (287 S.W.) tionably it would become the duty of the superintendent to grant the aid accordingly, even though the formal application might show it was based on another statute. That would be such a mistake as could be corrected under the provisions of section 11181, R. S. Mo. 1919, supra. It cannot be said in this case, however, that the application made by the school authorities in 1925 contained all the elements necessary to advise the respondent, the state superintendent of schools, with respect to any rights of the district under section 11264, Laws 1925. It covered Sec. 11295, R. S. Mo. 1919, and no one disputes the fact that relators intended it to do so at that time, being in doubt, as they say, as to the rights of the district under said section 11264, and knowing they would take no chances by placing themselves under section 11295. This being true, there was no mistake in the apportionment. The apportionment was made in exact accordance with the application, and respondent was right in declining to reopen the case. The cases of State v. Ross, 109 Ohio St. 461, 143 N. E. 34 and State ex rel. v. Lee, 303 Mo. 641, 262 S. W. 344, are not authority for the contention made by the relators, as may be seen on a careful reading of these cases. In the Ross Case there was a proper application made, but not made within the time named in the statute. The court held that, since the application was in fact made, though not timely, the district was nevertheless entitled to the relief it asked. In State ex rel. v. Lee, 303 Mo. 641, 262 S. W. 344, cited above, this court held that the proof showed that an application for state aid was prepared and mailed to the county clerk, but through some cause not attributed to the district officials was lost, so it never reached the state superintendent of schools. Through this mischance, the district was left entirely out of the apportionment, and we ruled that, inasmuch as the district had made its application, it was not to be denied the aid merely because the data submitted was lost in transmission. In the case at bar it is frankly stated by the relators in their petition that no application was made, or attempted to be made, under section 11264, that because the district authorities were in doubt of the rights of the district to receive the aid provided for in section 11264, they themselves framed the application upon section 11295 and received the aid thereby provided for. The lawmakers were not wanting in words, as this court said in State ex rel. v. Lee, 303 Mo. 611, 262 S. W. 344, 1. c. 346, when they specified in section 11179, R. S. 1919, the thing which would prevent the district from participating in the apportionment of state school funds; that section containing the following language: * * And no district, city or town which shall have failed to make this report to the county clerk hereinbefore required shall be entitled to receive any portion of the public school funds. * The relators not having made any attempt to show that this school district was within the provisions of section 11264, Laws 1925, and no error being pointed out in the apportionment made upon the application as made, we hold that there is nothing for correction, and that relators are without right to the writ they seek. The writ is therefore denied. It is so ordered. All concur, except GRAVES, J., absent. STATE ex rel. LIBERTY TP., STODDARD (Supreme Court of Missouri, in Banc. Oct. 8, 1. Pleading 350(3). Allegation in petition for mandamus, specifically denied in answer, will be dropped out of case when judgment on pleadings is requested. 2. Highways 994-Township, furnishing funds for federal aid project not then part of state highway system, not entitled to reimbursement in cash (McCullough-Morgan Law; Centennial Road Law, § 34). Township, furnishing funds for construction of highway as federal aid project under McCullough-Morgan Law (Rev. St. 1919, §§ 1088910910), held not entitled to reimbursement in Ex. Sess. p. 131) § 34, where it did not become cash, under Centennial Road Law (Laws 1921, part of state highway system prior to its completion and acceptance. 3. Highways 991⁄44. Township, having furnished funds for construction of highway as federal aid project under McCullough-Morgan Law, held entitled, under Centennial Road Law, § 33, to reimbursement in additional roads, after acceptance as part of state highway system. 4. Highways 9914. Under Centennial Road Law, § 33, state highway commission may exercise reasonable discretion in determination of time for construction of additional roads as reimbursement to township, providing funds for road subsequently designated as part of state highway system. Original proceeding in mandamus by the State, on the relation of Liberty Township, in Stoddard County, against the State Highway Commission. Peremptory writ denied. Wammack & Welborn, of Bloomfield, for relator. North T. Gentry, Atty. Gen., and L. Newton Wylder, of Kansas City, and Lue C. Lozier For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and Edgar Shook, both of Jefferson City, for 643.31 to relator, but respondent has refused respondent. and still refuses to honor said requisition or to cause said money to be repaid to relator. ATWOOD, J. This is a direct proceeding Respondent's answer admits the formal in mandamus to compel the state highway allegations of relator's petition, admits that commission of Missouri to refund in cash the the part of the "state highway system" in sum of $31,643.31 to Liberty township, Stod- the county of Stoddard lying between Dexter dard county, Mo., on account of money placed and Bernie and extending south to the Stodto the credit of said highway commission by dard-Dunklin county line of state highway said township to be used in the construction No. 25 lies within the boundaries of Liberty of a highway between Dexter and Bernie in township, and that prior to the passage and said township, and by said highway commis- approval of the Centennial Road Law bonds sion so used. Respondent entered its ap- of said Liberty township for road purposes pearance and waived service of the alterna- in sum of $145,000 had been issued and sold, tive writ. Relator filed a motion for judg-and that on January 24, 1923, Liberty town. ment on the pleadings, which necessitates our ship had funds in the sum of $36,250.37 arisstating them somewhat at length. ing from said bond issue, admits that on January 24, 1923, relator deposited in the First National Bank of Dexter, Mo., to the credit of respondent said sum of $36,250.37, as part payment of the estimated cost of constructing federal aid project No. 211A, and between January 24, 1923, and September 17, 1924, respondent expended of said funds $31,643.31 in the construction, grading, and hard surfacing of said project, and that such construction was under respondent's supervision and according to its plans, and that said proj ect has been completed and is now a part of the "state highway system" in Stoddard county lying between Dexter and Bernie, being a part of state highway No. 25, admits that the funds in the state road fund to the credit of Stoddard county (under the provisions of section 26 of the Centennial Road Law) for this biennial period were at the time of the making of the requisition hereinafter refer The petition, in addition to formal allegations, asserts that the part of the "state highway system" in Stoddard county, Mo., lying between Dexter and Bernie and extending south to the Stoddard-Dunklin county line is a part of state highway No. 25, lies within the boundaries of Liberty township, and that prior to the passage and approval of the act of the General Assembly in 1921 (Laws 1921, Ex. Sess. p. 131), commonly known as the Centennial Road Law, bonds of said Liberty township for road purposes in the sum of $145,000 had been issued and sold, and on January 24, 1923, Liberty township had funds in the sum of $36,250.37 arising from said bond issue; that at the request of the Missouri state highway commission, and upon its promise that the same would be refunded to relator as provided by section 34 of the Centennial Road Law, relator deposited in the First National Bank of Dexter, Mo., on Jan-red to, and now are sufficient to repay to reuary 24, 1923, to the credit of the Missouri lator said sum of $31,643.31, admits that rehighway commission-project 211A, the lator and the county court of Stoddard counaforesaid $36,250.37, and between January ty have made requisition upon respondent for 24, 1923, and September 17, 1924, the state the repayment to relator of said sum, and highway department expended of said funds that respondent has refused to honor said $31,643.31 in regrading and hard surfacing requisition or to cause said sum to be repaid that part of said "state highway system" to relator. Respondent denies that said sum within said county and within Liberty town- of $31,643.31 was advanced by relator at the ship lying between the city of Dexter and the request of respondent, or upon respondent's city of Bernie, the same being a part of state promise that the same would be refunded to highway No. 25; that the construction of said relator in cash as provided in section 34 of part of said highway for which said funds the Centennial Road Law, denies that said were used was under the supervision and ac- project was constructed under the provisions cording to the plans of said state highway de- of said Centennial Road Law or under secpartment, as provided by said Centennial tion 34 thereof; denies that relator has any Road Law; that said road has been complet-legal right to have said sum repaid to it in ed and accepted by said state highway de- cash, or that relator has any legal right to partment as a part of the "state highway demand reimbursement for said sum at this system"; that the apportionment of Liberty time, and denies that it is the clear, legal, township and Stoddard county of the state and ministerial duty of respondent to honor road funds as provided by the Centennial the aforesaid requisition at this time and to Road Law is suflicient to repay said money to certify same to the state auditor for his warrelator and that funds arising from the state rant and for payment out of the state road road funds are and were at the time of mak- fund. Further answering, respondent aling the requisition hereinafter referred to leges that now, and at the time of the making available for making said repayment; that of said requisition, certain portions of the relator and the county court of Stoddard state highway in Stoddard county designated county have made requisition upon respond- in said Centennial Road Law have not yet ent for the repayment of said sum of $31,- been constructed, graded, surfaced, or placed (287 S.W.) under contract, and that portions of said, day of January, 1923, relator deposited said "state highway system" in said county sum of $36,250.37 as alleged in said petition; formerly built by civil subdivisions in said that between said 24th day of January, 1923, county under the provisions of the McCul- and the 17th day of September, 1924, said project was constructed in pursuance of the terms lough-Morgan Road Law must be improved of a contract entered into on the 30th day of or reconstructed or resurfaced by concrete December, 1922; that said project was conpavement by respondent; that it was and is structed under the provisions of said McCulthe intention and purpose of respondent to lough-Morgan Law (as extended in section 2 of use funds now in the state road fund to the the Centennial Road Law), and was not concredit of Stoddard county for this biennial structed under the provisions of section 34 of period in the construction or in the improve- said Centennial Road Law; that the cost of ment of portions of said road, and in the constructing said project was paid, not by reopinion, belief, and judgment of respondent spondent with funds arising under and made available for construction purposes by the such construction and improvement are more terms of said Centennial Road Law, but by reexpedient and economical at the present time lator and the United States government; that than the reimbursement in cash or additional respondent paid no portion of the cost of said roads to Stoddard county, Liberty township, project from state funds, except the sum of or any other civil subdivisions in Stoddard $360 which was available from legislative apcounty entitled thereto; that under the pro- propriations for the carrying out of the provivisions of said Centennial Road Law respond- sions of said McCullough-Morgan Law; that ent is vested with the discretion of determin- under the provisions of said Centennial Road Law, respondent was and is required to apporing when refunds, either in additional roads tion and expend federal aid funds in the same as provided in section 33, or in cash as promanner as state bond issue funds, namely, bevided in section 34, shall be made to counties tween the primary and secondary systems of or other civil subdivisions entitled thereto; state highways, and further, to allot and apthat funds now in the state road fund to the portion secondary highway construction funds credit of Stoddard county are not now avail- among the several counties; that under the able for refunding purposes; and that, in provisions of said McCullough-Morgan Law, no applying for the writ of mandamus herein such apportionment of federal aid funds was prayed for, relator is attempting not to com- required, but, on the contrary, respondent was vested with a certain discretion as to where in pel the doing of a ministerial duty enjoined this state said federal aid funds could be exupon respondent, but to control a discretion- pended; that under the provisions of said Mcary power vested in respondent by law. Fur-Cullough-Morgan Law, relator was entitled to secure federal aid in the cost of constructing ther answering, respondent alleges: said project to the extent of 50 per cent. of the cost thereof, and did so secure federal aid in the construction of said project 211A, to the extent of 50 per cent. of the cost thereof; that such 50 per cent. federal aid could not have been secured by relator or any other civil subdivision in the construction of any project constructed under the provisions of said Centennial Road Law; that the cost of construction of project 211A could not have been paid as it was paid, except under said McCullough-Morgan Law. Respondent further alleges that relator is not entitled to any reimbursement at this time for said sum of $31,643.31, and, further, that, when entitled to reimbursement, in the premises such reimbursement for said sum must be made by respondent in additional roads as provided in said section 33; and that respondent has entered upon its books and public records, to the credit of relator, said sum of $31,643.31, to be expended, as provided in said section 33, in the construction of additional roads in Liberty township when in the opinion, discretion, and judgment of respondent, funds in the state road fund to the credit of Stoddard county are available for this purpose." "That on the 7th day of July, 1920, by an order made and entered of record, relator applied, under the provisions of section 10901, R. S. Mo. 1919, to the state highway board for federal aid in the cost of constructing said project 211A, and in such application assented to the provisions of article 11, c. 98. R. S. Mo. 1919, known and referred to as the McCullough-Morgan Law, and certified that the funds of relator were available and were thereby appropriated to be applied on the cost of constructing said road; that on the 27th day of February, 1922, relator's said application was accepted and approved by respondent, and the chief engineer of respondent was authorized to make the necessary surveys, plans, and specifications as provided for in section 10901, R. S. Mo. 1919; that said chief engineer did make said surveys, plans, and specifications and said surveys, plans, and specifications were approved by respondent; that on the 4th day of May, 1922, said project was submitted to the Secretary of Agriculture of the United States, in a 'Project Statement' required by the Federal Aid Road Act, said project statement reciting that the proposed work was to be done under the direct supervision of respondent under the aforesaid McCullough-Morgan Law; that said project statement was approved by said Secretary on the 17th day of July, 1922; that on the 14th day of November, 1922, said Secretary approved the surveys, plans, and specifications for said project; that on the 12th day of De-Law was specifically denied in respondent's cember, 1922, respondent entered into the 'Proj- answer, and this issue dropped out of the ect Agreement,' required by the Federal Aid case when relator asked for judgment on the Road Act, on said project; that on the 24th pleadings. The issues now before us are (1) [1] Relator's allegation that its money was placed to the credit of the highway commission at its request and upon its promise that said money would be refunded to relator as provided by section 34 of the Centennial Road |