State ex rel. Bassett v. Renick

37 Mo. 270

• Court: Supreme Court of Missouri
• Decided: February 15, 1866
• Status: Published

Opinion

Holmes, Judge,

delivered the opinion of the court.

This is a petition for a mandamus on the mayor of the city of St. Joseph, requiring him to sign and issue certain bonds of the city. The return admits the facts stated in the petition. By the Act of the General Assembly of Missouri of the 19th of December, 1865, it was provided that the mayor and council of the city of St. Joseph should cause all propositions “ to create a debt by borrowing money for any purpose whatsoever,” to be submitted “to a vote of the qualified voters of said city,” and that in all such cases it should require “ two-thirds of such qualified voters to sanction the same.” In pursuance of this act, the city council passed an ordinance authorizing the bonds of the city to be issued, to the amount of fifty thousand dollars, for the improvement of streets in the city, and making it the duty of the mayor and city register to issue any number of the bonds so authorized to be issued to any citizen or citizens who might be willing to take the same, the proceeds to be applied to the purposes expressed in the ordinance; and it was further provided that the ordinance should be submitted “to a vote of the qualified voters in the city of St. Joseph, on Saturday, the 13th day of January, 1866, at the usual places of holding elections in the different wards of the city,” in accordance with the provisions of the charter and laws of the city then in force. On that day an election was held, and it appears by the certificate of the city register that four hundred and four votes were polled, of which three hundred and thirty-six votes were in favor of the ordinance, and fifty-eight votes against it. It appeared also that at the last previous general election held in this city, in April, 1864, the whole number of votes polled was three hundred and thirty-eight.

The only reason given by the mayor for declining to sign the bond in question was, that he was in doubt whether the matter was to be determined by two-thirds of all the votes polled at the special election, or by two-thirds of all the voters resident in the city, absolutely, whether voting or not. We think it was sufficient that two-thirds of all the qualified voters who voted at the special election, authorized for the express purpose of determining that question, on public notice duly given, voted in favor of the proposition. This was the mode provided by law for ascertaining the sense of the qualified voters of the city upon that question. There would appear to be no o|her practicable way in which the matter could be determined.

A peremptory mandamus will be ordered.

Judge Wagner concurs ; Judge Lovelace absent.