State ex rel. City of Marshall v. Hackman

203 S.W. 960, 274 Mo. 551, 1918 Mo. LEXIS 33

Opinion

BOND, J.

I. In this case it is stipulated that the petition for mandamus is to he treated as and for the alternative writ ordered by this court. The object of the suit is to compel the State Auditor to register bonds of the city of Marshall for $75,000, which were authorized at a special election held on June 26, 1916, to raise funds wherewith to build or buy an electric light plant to serve the city and its inhabitants.

The case was referred to a commissioner to take proof and report, which not having been made, a stipulation dispensing therewith and submitting the case on the evidence adduced before the commissioner, was filed March 4, 1918, with' leave to furnish briefs thereafter.

It is conceded in the brief of respondent that the narrative of the evidence in relator’s, brief is, in the main, fair and correct. It is, however, insisted that a peremptory writ should not issue. While many grounds for that contention are set forth in the return of respondents, only those urged in his brief and written argument need be ruled. In substance these are: first, that the city of Marshall had no statutory authority to issue bonds to purchase an electric plant; second, that the special election authorizing the bonds was not held on the day required by law; third, that the election was illegal because not held in conformity with the requirements of the Australian ballot system. [R. S. 1909, secs. 5889-5923- and 5921.]

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The foregoing are the only objections to the registration of the bonds relied on in the brief. They will be considered in order. Before doing this, however, it is well to note a preliminary point urged in the brief of respondent, that the writ invoked is not one of right, but is one which is rested in the discretion of the court. As to this contention, it need only be said that the true principle is, that mandamus is a civil remedy provided by law in certain cases, from which it necessarily follows that it is as much error to refuse it when warranted by all the facts and circumstances held in judgment, as it would be to refuse a lawful remedy for any other infracted legal right.

Such a refusal in either case would be an abuse of judicial power and discretion and would be correctable if an appeal or writ of error would lie. The specific redress provided by law for a violation of civil rights is ex debito justitiae and is not left to the unreviewable discretion of any court or judicial officer; for that would be repugnant to the spirit and philosophy of the law and genius of free government, neither of which could tolerate autocracy of administration in any sphere of service. In forms of government of which ours is the most advanced protagonist, the sole repository of supreme power is the law of the land, which decides only after a hearing and trial and must decree evenhanded justice to every human being. Such a state could not exist if its legal or governmental policy were vested in the unregulated discretion of any agent. In a free country a judge may apply, he cannot make the law.

, City Indebtedness.

II. Recurring to the vital questions in the case, the relator is a city of the third class and is invested with express statutory authority “to , , . ; . erect or to acquire by purchase or otherwise . . . electric light and power plant . . . to provide for the erection or the extension ^of the same by the issue of bonds therefor, and any such city . . . which may own ... or which may hereafter acquire by purchase . . . any of the plants, systems or works mentioned in this section, is hereby authorized and empowered to establish . . .. a hoard of public works” to take charge of and exercise control over such public utilities. [R. S. 1909, secs 9914, 9917; later re-enacted in substance, Laws 1911, p. 352.]

In addition to the express power given to cities specified in the section (R. S. 1909, sec. 9914; Laws 1911, p. 352.) the power to erect or buy electric light plants is given to all cities of the State by a distinct provision of the statutory law. [See R. S. 1909, sec. 9904.] To exercise these specific and general powers, statutory and constitutional provisions have been enacted and adopted which, by inter-relation, cover the entire subject and prescribe the method by and the extent to which the municipalities shall become indebted. When read in pari materia these sections plainly show that the cities, towns and villages of the State may incur indebtedness for purchasing as well as for constructing-electric plants. For example: Section 9544, Revised Statutes 1909, authorizes them to become indebted for charter purposes, or when authorized so to do “by any general law of the State,” etc. Aind Section 9904, by a general law of the State, empowers them “to acquire by purchase” electric plants. Hence it is clear that the two sections pf the statutes dovetail with each other and afford full statutory power on the part of relator to contract the indebtedness in question, either to build or to buy an electric plant. Again, Section 9664 is a practical rescript of Section 12a of Article 10 of the Constitution (State ex rel. v. Wilder, 200 Mo. l. c. 105) and was intended to enlarge the power granted (in Section 12, Article 10, of the Constitution) municipalities to acquire electric plants and all other public utilities. This amendatory provision of the Constitution provides for increasing the limit of indebtedness authorized by the original provision to an additional five per cent of the assessed value of the taxable property of the cities above the previous five per cent permitted in the former provision of the Constitution. The latter provision of the Constitution further amends the former by providing that the indebtedness thus permitted to be - increased shall be usuable “for the purpose of purchasing or constructing . . . electric or other light plants.” It would be a narrow, if not absurd, view of this amendment to hold that it did not intend to authorize the creation of an indebtedness for purchasing. such a plant, unless the city in order to do so would have to avail itself of the five per cent additional taxation which the amendment gave it the power to levy. The obvious design of the amendment of the Constitution was to foster municipal ownership’ by increasing the amount of public indebtedness for the acquisition, whether _ by erection or purchase, of. the' great necessaries of urban life and to grant power to cities to become indebted for that purpose in any sum not exceeding a total of ten per cent of the assessed value of their property to be ascertained as provided in the original provisions of the Constitution, to-wit, Section 12 of Article 10. It was not the intent of the new section to forbid a city to issue bonds unless the indebtedness to be secured was for an amount beyond the five per cent originally permitted to- be incurred and within an additional five per cent; but it was the manifest purpose of the amendatory provision of the Constitution to give to such cities the right to exercise the powers and franchises therein granted in any case where the indebtedness, whatever its amount, did not exceed the aggregate of ten per cent specified in the amendatory provision. Any other theory of the purposes of the 'amendatory provision would be inconsistent with its language and object and in contra vention of the established cannon of construction that provisions' of the Constitution, like statutes dealing with a single subject, must he interpreted according to the plain meaning of the language employed and the paramount purpose of its framers to provide a rational, congruous and symetrical chart of government. [Calland v. Springfield, 264 Mo. l. c. 301, 302.]

The clear and explicit grant of powers contained in the statutes and Constitution heretofore cited, leave no room for doubt that the city of Marshall had the statutory power to incur the indebtedness evidenced by the issuance of the bonds in question, under the facts in this record, which show that it did not exceed the constitutional proportion of the assessed value of its property ascertained as provided in the Constitution, at the date of the execution of itp bonds, provided the election, was legally held and the proposition to increase the indebtedness was legally carried. proper authorities, “shall order a special election to be held” upon prescribed notice; that “such election shall be held and judges thereof appointed as in ease of other elec-

Time of Election.

III. The election was held at a time contemplated by law. Section 9545, Revised Statutes 1909', among other things provides that a city, town or village desiring to submit to its voters the question of the issuance of bonds like those under review, through its tions in such municipalities.” Section 9546 prescribes the form of the ballots; Section 9145 provides “a general election for the elective officers” of cities of the class of relator “shall be held on the first Tuesday in April . . . and every two years thereafter.” In accordance with the latter of these sections, Ordinance 99 of the City of Marshall, so far as pertinent, provided that -“on the first Tuesday in April, 1906,” and biennially thereafter “a general election” should be held in that city as prescribed by law for mayor, marshal, city attorney, police judge and other city officers. It is the theory of the learned counsel for respondent that. the foregoing statutes and ordinances by cross-reference imply that the “special election” provided in the first section above quoted must be held on the date fixed for “general elections” in the relator city. We are unable to concur in that view. The only necessary intendment of the statutes and ordinance supra is that the date for the holding of “general elections” in the city of Marshall must take place biennially on the first Tuesday of April. There is nothing in the language of these statutes and ordinance which necessarily implies that “special elections” which cities like the relator are authorized to call for the purpose of incurring municipal indebtedness, should be held on the fixed date prescribed by law and ordinance for the election of officers of such cities. The provision with reference to such special elections (viz., such elections shall be held and the judges thereof appointed as in case of other elections in such municipalities, R. S. 1909, sec. 9545, supra) only requires similarity ás to the method and manner of holding the two kinds of elections; it does not necessarily imply that they can only be held on the same date. Such a construction is not demanded by the terms of the statutes and would result in much inconvenience and delay in the exercise by such cities and towns of their lawful rights to erect or purchase public utilities indispensable for the public welfare. In cases wherein this court has passed upon the exercise of such powers, it was not thought indispensable that such elections should be held on the date prescribed by law for general elections in such towns and cities. In a recent deliverance by this court In Banc (State ex rel. City of Memphis v. Hackman, 273 Mo. 670) it appeared that an election for the identical purpose of the one under review was held on February 28, 1916. In that case a peremptory writ of mandamus was awarded to compel the registration of bonds. So also in the following cases the elections of the kind under review were held at other dates than those prescribed by law for the holding of general elections: State ex rel. Carthage v. Gordon, 217, Mo. 103; State ex rel. Dexter v. Gordon, 251 Mo. 303; Bauch v. City of Cabool, 165 Mo. App. 486.

In the case of State ex rel. Dexter y. Gordon, 251 Mo. 303, neither in the majority nor in the dissenting opinion was any importance attached to the fact that the election then under review was held in August and not on the first Tuesday in April. The effect of these rulings, particularly the one in State ex rel. Dexter v. Gordon, supra, where a mandamus to compel the registration of bonds was denied, is equivalent to a. holding that the statutes supra were not susceptible of a construction requiring a special election for the issuance of bonds to be held on the date of the general election, for if that had been the proper interpretation of the statutes, the ruling in the case of State ex rel. Dexter v. Cordon, supra, would have been placed on the ground that the issuance of the bonds was void because voted for at an election held on a date other than that required by law. No such conclusion was reached in that case and if it had been' permissible there would have been no occasion for the dissenting opinion filed in that ease. We therefore overrule the contention that the election for the issuance of the bonds involved in this proceeding was held on an improper date.

Holding °f Election.

IV. We think the proposition to incur the indebtedness was lawfully carried at the election held for that purpose. We concede that the manner of holding the election under review is prescribed by what is known as the Australian Ballot Law (Art. 5, Ch. ^3, R. S. 1909). A careful consideration of the relevant testimony in this case satisfies us that in its essential features this election code of the State was substantially complied with and that the result of the election showed a two-thirds majority of those voting in favor of the proposition to incur the indebtedness evidenced by the bonds sought to be registered. Many of the points urged in favor of the contrary view by the learned counsel for respondent, while specifically different, were not generic ally unlike the objections urged to the registration of the bonds in the unreported manuscript decision of State ex rel. City of Memphis v. Hackman, supra. The effect of the doctrine announced in that case it that, absent fraud or a mandatory statute, an election like the one under review will not be set aside for mere irregularities in the method of voting, such as relate to furnishing booths, the duties of the judges of election and the certification of the result of the election. [See also Bine v. Jackson Co., 266 Mo. l. c. 240; Bowers v. Smith, 111 Mo. 45, and Skelton v. Ulen, 217 Mo. 383.] Under the authority of State ex rel. v. Hackman, supra, we are not prepared to say that the complaints of the respondent in these respects involve substantial violations of the- Australian Ballot Law, and accordingly overrule the assignment that such law was contravened in the election in'the instant case.

voters.

V. It is finally urged by the learned counsel for respondent that the election in this case was void because twenty-six illegal votes were east thereat by persons not entitled, on account of non-residence and other legal disqualifications, to participate in the election. A careful examination of the testimony discloses that the result of the election would not' be affected if these votes “were subtracted from those given in favor of incurring the indebtedness, since that would leave more than a two-thirds vote cast in favor of the- proposition. The total of the votes cast was 1251; 857 being for bonds and 394 against. It is evident that if 26 be deducted from those favoring the bonds, a two-thirds majority would remain. But the question is not before us in this case. Respondent sought to amend its return by specifying these grounds for annulling the election.. This court denied that motion for the reason that no such' issues can be raised in a mandamus proceeding to compel the. registration of bonds. Such a proceeding is not an election contest in -any sense. The duties of the State Auditor in the matter of the regis tration of bonds of municipalities are regulated and prescribed in Section 1275, Revised Statutes 1909, which provides, among other things, for the registration of municipal bonds in the same manner State bonds are registered and for a certificate endorsed by the Auditor on the bonds “that all conditions of the laws have been complied with in its issue, if that be the case, and also that the conditions of the contract under which they were ordered to be issued have also been complied with, and the evidence of that fact shall be filed and preserved by the Auditor; but such certificate shall be prima-facie evidence only of the facts therein stated and shall not preclude or prohibit any person from, showing or proving the contrary in any suit or proceeding to test or determine the validity of such bonds, or the power ... to issue such bonds; and the remedy of injunction shall also lie at the instance of any taxpayer, . . . to prevent the registration of any bonds alleged to be illegally issued and funded under any of the provisions of this article.” ' It is obvious at a glance that the .above statute makes no provision for the contest of an election or for the trial of issues determinable only in a suit to contest an election. It is settled law that election contests did not exist at common law, but are purely creations of statute. Whether or not the twenty-six voters in question were disqualified by conviction of crime or non-residency, would present questions triable in election contests, whenever authorized by statute, but they could not be collaterally inquired of in a mandamus proceeding brought under the above statute to compel the registration of bonds. [State ex rel. v. Dillon, 87 Mo. 487; State ex rel. v. Francis, 88 Mo. 557; State ex rel. v. Hough, 193 Mo. l. c. 643; Kehr v. Columbia, 136 Mo. App. 322; State ex rel. v. Elkin, 130 Mo. 90; State v. Gamma, 149 Mo. App. 694.]

Our conclusion . is that upon the presentation of the bonds to the State Auditor, under the circumstances and facts of the present record, a prima-facie showing was made that they had been issued in compliance with' the conditions prescribed hy law, and that it was his specific duty to have registered them in the manner prescribed in the above statute.

It follows that the alternative writ of mandamus heretofore awarded is made permanent. It is so ordered.

Walker, Woodson and Williams, JJ., concur; Graves/ G. J., and Blair, J., concur in paragraphs 2, 3, 4 and 5 and the result; Baris, J., dissents.