dissenting.
I respectfully dissent.
I agree with that portion of the majority opinion which denies plaintiff recovery for the 1974-1975 school year. The county court had no authority to make pupil assignments for that year. The amendment of § 167.121, which became effective on *816July 1, 1974, vested such authority in the county board of education.
With respect to the school years 1972-1973 and 1973-1974, it is my opinion that plaintiff, the receiving district, should recover the tuition of each of the pupils or the prorata cost of instruction, whichever is the lesser, as the statute commands.
I agree that the county court entry of August 28, 1972, is poorly drafted. As the trial court pointed out, its opening paragraph refers to an application for assignment “from the Lowry School to the Osceola School,” when in fact the requested assignment was from Osceola to Lowry. The trial court found that obvious clerical error to be insignificant and I agree with that view. Had the children been residents of the Lowry District, there would have been no occasion for their mother’s application for an assignment.
Long ago our supreme court pointed out that “orders of boards or courts administered by men not trained in the law must be construed not strictly but according to their intent.” Greenfield v. Petty, 346 Mo. 1186, 145 S.W.2d 367, 371[10] (1940). The holding of the majority is, it seems to me, inconsistent with that principle. The majority opinion gives no effect whatsoever to the entry of August 28,1972, or the “confirmation entry” of July 23, 1973. Surely the county court, by the making of those entries, intended to assign the three children to the Lowry District. The county court was not merely transmitting a neighborly communication evincing that the assignment was “agreeable” to the court.
It is clear from the entry of August 28, 1972, that Mrs. Bourland applied for the assignment of her three children. Giving the second paragraph of the entry of August 28, 1972, the liberal construction to which it is entitled, I find that the county court intended to, and did, sustain that application. Such action alone was sufficient to trigger the operation of § 167.121.
The statute did not require that the sending district or receiving district be given notice of the action of the county court. Red School Dist. No. 1 v. West Alton School Dist. No. 2,162 S.W.2d 305, 305[1] (Mo.App.1942). It appears from the record that the county court in fact notified the two school districts, the notice consisting of the last three paragraphs of the entry of August 28, 1972. This notice, gratuitously given, should not disturb the legal effect of what the county court had intended to accomplish and, in my opinion, did accomplish.
The last two paragraphs of the entry of August 28, 1972, should be disregarded as surplusage. Once the assignment was made, the statute imposed upon the sending district the obligation to pay the tuition of the pupils assigned, although the tuition may not exceed the prorata cost of instruction. The county court had no power to alter that statutory result.
The entry of August 28, 1972, refers to “any fee” but it does not refer to tuition. It may be that the county court, in using the term “any fee,” was referring to that type of fee recently discussed by our supreme court in Concerned Parents v. Caruthersville School District, 548 S.W.2d 554 (Mo. banc 1977). The court in that case, l.c. 562, distinguished such fees from the tuition referred to in § 167.121 and other statutes pertaining to tuition.
Under both the prior and the present form of § 167.121, the sending district is required to make payment, within the statutory limits, to the receiving district. In the case at bar the receiving district fully performed its role. The county court entries of August 28, 1972, and July 23, 1973, are, in my view, adequate to manifest the court’s intent. Careless draftsmanship should not deprive the receiving district of its statutory benefits.