State ex rel. City of Republic v. Smith

• Decision Date: 18 April 1940
• Docket Number: 37018
• Citation: 139 S.W.2d 929,345 Mo. 1158
• Parties: State of Missouri at the relation of the City of Republic, Relator, v. Forrest Smith, State Auditor
• Court: Missouri Supreme Court

139 S.W.2d 929

345 Mo. 1158

State of Missouri at the relation of the City of Republic, Relator,

v.

Forrest Smith, State Auditor

No. 37018

Supreme Court of Missouri

April 18, 1940

Peremptory writ awarded.

Bruce T. DeWitt and Fred A. Moon for relator.

(1) Under the law governing cities of the fourth class, the mayor and the board of aldermen are elected by the qualified voters of the city and hold office for a term of two years. Sec 6951, R. S. 1929. (2) Any vacancy in the office of aldermen which occurs within six months of a general municipal election shall be filled in such manner as may be prescribed by ordinance. Sec. 6973, R. S. 1929. (3) The board of aldermen has prescribed by ordinance that, whenever, from any cause, a vacancy shall occur in any elective office, within six months of a city election, the same shall be filled by appointment by the mayor. Ordinance No. 251 City of Republic which is set out in full in petition for writ. (4) "The title of one exercising municipal functions and who is acting as a de facto officer cannot be attacked collaterally, before the title to the office is determined. Thus, the rights of councilman to act will not be collaterally determined in an action by taxpayer to restrain the council from issuing bonds." 2 McQuillin, Mun. Corp (2 Ed.), sec. 505; Smith v. Beach, 206 N.C. 834, 175 S.E. 315; Perkins v. Fielding 119 Mo. 159. (5) Acts of de facto officers are good until they have been removed from office by quo warranto. Fly v. Jackson, 45 S.W.2d 919, 226 Mo.App. 203; Eaker v. School Dist., 62 S.W.2d 778. (6) To constitute one a de facto officer, he need only to assume to exercise the powers of the office or perform some of the duties pertaining thereto, under color of right. 2 McQuillin, Mun. Corp. (2 Ed.), sec. 500, p. 206. (7) Ordinance not void, and its validity cannot be questioned because voted on by de facto alderman. 2 McQuillin, Mun. Corp. (2 Ed.), sec. 504, p. 214; Stevens v. Schull, 179 Ark. 766, 19 S.W.2d 1020; McAvoy v. Trenton, 82 N. J. L. 101, 80 A. 952; Kansas City v. McTernan, 273 S.W. 105. (8) It is the duty of every member of a public body to vote, for or against any proposition which is presented. If, under such circumstances, a member does not respond when his vote is called for, but sits silently by when given an opportunity to vote, he is regarded as acquiescing in, rather than opposing the measure, and is regarded in law as voting with the majority. Bonsack & Pierce, Inc., v. School Dist., 49 S.W.2d 1088; 2 McQuillin, Mun. Corp. (2 Ed.), sec. 626, p. 568; Springfield v. Haydon, 288 S.W. 341; Sowerd v. Bridgeport, 60 Conn. 521, 22 A. 1015. (9) Under the law governing cities of the fourth class, the mayor is authorized, in the case of a tie, to cast the deciding vote. Sec. 6953, R. S. 1929; Mound City ex rel. v. Shields, 220 Mo.App. 798, 278, S.W. 798; 19 R. C. L., sec. 191, p. 891; Carrollton v. Clark, 21 Ill.App. 74; McClain v. Church, 76 Utah 170, 289 P. 88; State v. Toud, 92 Mont. 307, 14 P.2d 432. (10) When a presiding officer announces that a motion has carried, he thereby casts his vote in the affirmative. Bonsack & Pierce Inc., v. School Dist., 49 S.W.2d 1088; 2 McQuillin, Mun. Corp. (2 Ed.), sec. 620, pp. 552, 553. (11) "Where there are two acts on a subject, the rule is to give effect to both if possible, but if the two are repugnant in any of their provisions, the later act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first." 2 McQuillin Mun. Corp. (2 Ed.), sec. 878, p. 1151; Meriwether v. Love, 167 Mo. 520; St. Louis v. Kellman, 139 S.W. 443, 235 Mo. 687.

Roy McKittrick, Attorney General, and Covell R. Hewitt, Assistant Attorney General, for respondent; Ernest Hubbell of counsel.

(1) The suit pending in the Circuit Court of Greene County, Missouri, does not affect the duty of respondent to register the bond, and does not bar relator's right to relief in this proceeding. Secs. 2915, 2920, R. S. 1929, repealed, Laws 1939, p. 253, sec. 1; State ex rel. Buckley v. Thompson, 19 S.W.2d 718, 323 Mo. 248; State ex rel. Drainage Dist. v. Hackmann, 267 S.W. 612; 38 C. J. 561, 562, sec. 32; State ex rel. Consolidated Dist. No. 9 v. Thompson, 30 S.W.2d 603; State ex rel. School Dist. of Affton v. Smith, 80 S.W.2d 860. (2) All conditions of the law governing enactment of ordinances have been complied with, and Ordinances No. 931, calling the bond election is valid, because: (a) The City of Republic has a right to issue bonds for the purpose of establishing a sewer system. Secs. 7217, 7218-7221, R. S. 1929; Sec. 7031, R. S. 1929; State ex rel. City of Boonville v. Hackmann, 240 S.W. 138, 293 Mo. 313; State ex rel. City of Marshall v. Hackmann, 274 Mo. 559, 203 S.W. 960. (b) Said ordinance received the vote of a majority, four, of the de jure aldermen. Secs. 6973, 7016, R. S. 1929; Springfield v. Haydon, 288 S.W. 341; Sowerd v. Bridgeport, 60 Conn. 521, 22 A. 1015; Bonsack & Pierce, Inc. v. School District, 49 S.W.2d 1088; City v. Edwards, 23 S.W.2d 235. (3) All conditions of the law were complied with in enactment of an ordinance establishing a sewer system. Sec. 7031, R. S. 1929; Lee v. Rogers, 247 S.W. 1021; Springfield v. Weaver, 137 Mo. 666. (4) All conditions of the laws prescribing a limitation upon the maturity dates of the bonds have been complied with. Sec. 12, Art. X, Mo. Const.; Meriwether v. Love, 167 Mo. 520.

Arch A. Johnson, amicus curriae.

(1) All facts well pleaded in respondent's return must be taken as true on relator's motion for judgment on the pleadings. Bank of Kennett v. Cotton Exchange Bank, 72 S.W.2d 84; State ex rel. Fowler v. Calvird, 93 S.W.2d 1106; Geitz v. Blank, 108 S.W.2d 1066. (2) Under facts as pleaded there was no vacancy in the office of alderman for the third ward in said city. Alderman Bell, the duly elected, qualified and acting member of said Board for said ward, had not resigned and had not forfeited his office by any act of his and the appointment of R. C. Mitchell by the mayor was a nullity and did not constitute the appointee an alderman of said city. Sec. 6973, R. S. 1929. (3) The City of Republic cannot take advantage of its own wrong by claiming that R. C. Mitchell was a de facto officer. The foundation stone of the doctrine of a de facto officer is to prevent the public or third person from being deceived to their hurt by relying upon the validity of acts done by a pseudo-officer. State ex rel. v. Perkins, 139 Mo. 106; 12 Am. & Eng. Ency. of Law, 24; 8 S.E. 383; 46 F. 714; 49 Ark. 439. (4) This is an equitable proceeding and is to be determined by equitable principles. Equity will not aid one to obtain relief from a position in which he was placed by his own wrongdoing. Thompson v. Lindsay, 242 Mo. 53; Jones v. Rush, 156 Mo. 364; Goodrich Co. v. Bennett, 281 S.W. 75; Barnett v. Couey, 27 S.W.2d 757. (5) Powers of court of equity are limited to cause of action and issues made by pleadings. Branner v. Klaber, 49 S.W.2d 169. (6) Relator by its motion for judgment on the pleadings admits that the appointment of R. C. Mitchell was illegal. Relator does not come into this court with clean hands. Abernathy v. Hampe, 53 S.W.2d 1090; Spicer v. Round Prairie Bank of Fillmore, 71 S.W.2d 121; McNier v. Williamson, 166 Mo. 385; State ex rel. Seaton v. Harrison, 64 S.W.2d 738. (7) Section 7016, Revised Statutes 1929, provides that no ordinance of a city of the fourth class: "shall be passed except by bill and no bill shall become an ordinance unless on its final passage a majority of the members elected to the Board of Alderman shall vote for it and the 'ayes' and 'nays' be entered on the journal." Sec. 7016, R. S. 1929; City of New Franklin ex rel. Lynch-McDonald Construction Co. v. Edwards, 23 S.W.2d 235.

OPINION

Tipton, J.

This is an original proceeding in mandamus to compel Forrest Smith, State Auditor of Missouri, to register a bond issued by the city of Republic, a city of the fourth class, for the purpose of providing funds to construct a sewer system. After filing the application for the writ, respondent waived the issuance of the writ, agreed that relator's application and petition might be considered as such writ, and filed his return. The return challenges the validity of an ordinance passed by the city council of relator calling for a bond election to test the sense of the voters in regard to establishing a sewer system; it challenges the validity of an ordinance authorizing the issuance of the bonds after the election; and it challenges the authority of respondent to register the bond while an injunction suit is pending in the circuit court to prohibit the issuance of the bonds, though no temporary injunction had been sought. Relator filed a motion for judgment on the pleadings.

The application of the relator for an alternative writ of mandamus against respondent avers, among other things, the following: That relator is a city of the fourth class under the laws of this State; that it has an adequate water plant and distribution system, but has no sanitary system and disposal plant; that the Works Progress Administration agreed to expend $ 72,225 for the construction of a sanitary system, provided relator would contribute $ 16,500 to complete the project; that on December 11, 1939 the Board of Aldermen passed Ordinance No. 931, calling for a special election for the purpose of submitting to the voters of the city a proposition to increase the indebtedness of the city in the amount of $ 16,500 to be used in the construction of a sewer system; that pursuant to this ordinance, an election was held January 8, 1940, and the bond issue carried by a vote of 337 for and 126 against incurring the indebtedness; that thereafter, the Board of Aldermen passed Ordinance No. 938,...