State ex rel. Mercer County v. Gordon

Decision Date20 May 1912
Citation147 S.W. 795,242 Mo. 615
PartiesTHE STATE ex rel. MERCER COUNTY, C. E. MINTER, JAMES T. ALLEY and WILLIAM HORN v. JOHN P. GORDON, State Auditor
CourtMissouri Supreme Court

Writ allowed.

Ira B Hyde & Son and E. M. Harber for relators.

(1) The notice is sufficient according to the special statute, sec 1261, which governs that question. It is evident that each and every requirement of said statute was fully met to the letter, and it certainly must be conceded that said statute does not require the polling places to be designated in said notice. Such being the case, notice was valid, and it matters not whether said statute is construed as mandatory or simply directory, for the reason that it was fully complied with. (2) However, it is urged by respondent that section 1263 providing that the election shall be held and conducted in the same manner as in elections for State and county officers; that certain sections of such general election law namely, sections 5804 and 11676, provide that each township may be divided into as many election precincts by the county court as said court may think the convenience of the electors requires; that said statutes contemplate the designation of the election precincts or polling places in said notice. While it is difficult to see that these statutes have any other application than merely prescribing how the election shall be conducted on the day of election, yet, if, considered on the question of notice, they are complied with, for the notice did state that the election would be held in Mercer county, whose voting precincts or balloting places had been established for more than twenty years. State ex rel. v. Bassett, 133 Mo.App. 366. The statute prescribing the contents of the notice does not require the place to be stated, but does require the day on which the election is to be held. (3) Section 1261 covers the entire question of notice in this class of elections and is exclusive, the rule being that where a statute in relation to special proceedings is complete in itself and covers the entire subject, it is exclusive, and the proceedings under it are governed solely by its provisions. The notice here given in every respect complied with requirements of sec. 1261. Ackerman v. Green, 201 Mo. 244; Baker v. Railroad, 36 Mo. 543; Carter v. Tindall, 28 Mo.App. 319; Schwoerer v. Christophel, 64 Mo.App. 81; State ex rel. v. City, 35 Utah 25; State ex rel. v. County, 114 P. 522. (4) It is a general rule that when the voters have had an opportunity to express and have fairly expressed their will, an election should not be held invalid for mere irregularities which in no way affect the result. Sanders v. Lacks, 142 Mo. 255; State ex rel. v. Roberts, 153 Mo. 112; State ex rel. v. Swanger, 212 Mo. 472; State v. Swearingen, 128 Mo.App. 613; Bowers v. Smith, 111 Mo. 61.

Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for respondent.

This being a special election, called for the purpose of incurring an indebtedness in excess of the total income and revenue of such county provided for any one year, all the requirements of the statutes pertaining to the holding of such election must be strictly complied with. St. Louis v. Epperson, 97 Mo. 300; Post v. County, 47 F. 282; County v. Marcy, 97 U.S. 96; Thomasville v. Light Co., 122 Ga. 399; Williams v. People, 132 Ill. 574; Railroad v. Bearss, 39 Ind. 598; Clarksdale v. Broaddus, 77 Miss. 667; Hauswirth v. Mueller, 25 Mont. 156; State v. Babcock, 25 Neb. 500; Martin v. Bennett, 139 Mo.App. 237; Davis v. County, 116 Ga. 491. (2) The statute prescribed the contents of the notice of election. That notice shall state the place where the election will be held. The purpose of this provision is to impart information to the electors, so that they may know where to deposit their ballots and thus express their wishes concerning the question whether a tax shall be imposed on their property. Whatever may be the rule with respect to the election of public officers, we are satisfied that where the statute prescribes that the notice of an election for the purpose of burdening property with a tax shall specify the place at which voters may vote, the provisions are mandatory, and must be substantially complied with. No requirement of the election law is more important to be observed than that where the election is to be held. Hilburn v. Railroad, 23 Mont. 247; Johnstone v. Robertson, 8 Ariz. 361; People v. Gohcenour, 54 Ill. 123; Stephens v. People, 89 Ill. 337; Hendersonville v. Jordan, 63 S. E. (N. C.) 167; Barry v. Lauck, 5 Coldw. (Tenn.) 588; Knowles v. Yates, 31 Cal. 92; Melvin's Case, 68 Pa. St. 338. (3) The notice of election purporting to inform the voters of Mercer county of the matters to be voted upon was not such a notice as is contemplated by sec. 1261, and incorporating the order of the court without notifying the voters that an election would be held in the manner prescribed by such order, did not remedy the defect; and said order, thus incorporated, in said purported notice, failed to designate the election precincts and the polling places therein. Gaston v. Lampkin, 115 Mo. 20; St. Louis v. Epperson, 97 Mo. 300.

BROWN, J. Valliant, C. J., absent.

OPINION

In Banc

Mandamus. Original Proceeding.

BROWN J.

Original action by mandamus in this court to compel respondent, as State Auditor, to register county bonds.

On the 3d day of October, 1911, a special election was held in Mercer county, Missouri, submitting to the qualified voters of that county a proposition to authorize the issue of $ 75,000 county bonds to raise money to build a courthouse.

At said election, 1474 votes were cast for and 369 votes against the issue of said bonds. More than two-thirds of the qualified votes cast in said election being in favor of said issue, the county court declared the proposition carried, issued the bonds authorized and attempted to have the same registered and certified by respondent as Auditor of the State of Missouri. Respondent having refused to register and certify said bonds, this action was instituted on April 22, 1912, to compel him to do so.

Respondent has filed his return to the alternative writ issued herein defending his action in refusing to register and certify said bonds, on the following grounds:

1. That the notice of election to authorize the issue of said bonds as published, was in fact no notice at all, because it was only a copy of the order made by the county court requiring notice to be given.

2. That the notice of said special election to issue bonds failed to comply with sections 1261 and 1263, Revised Statutes 1909, in that it failed to designate the polling places in Mercer county where said special election was to be held.

Respondent also attacks the notice of election on other grounds which he does not urge in his brief, and which we do not find worthy of special mention in this opinion.

The relators move the court for a judgment in their favor upon the pleadings.

The notice of the special election to authorize the issue of bonds is in fact only a certified copy of the order made by the county court of Mercer county ordering a special election to be held, and is as follows:

NOTICE OF ELECTION.
Notice is hereby given that at the regular August term of the county court of Mercer county, Missouri, held at Princeton Missouri, and on the 10th day of August, 1911, the same being the fourth day of said term, a petition of Edd Kauffman and more than one hundred others of the qualified voters of said county, taxpayers therein, praying for an election to authorize the incurring of an indebtedness for the purpose of building a courthouse, was presented, and the following proceedings were had, to-wit:
Order calling special election to authorize the issuance of $ 75,000 bonds for the purpose of building a courthouse.
Now, on this 10th day of August, the same being the fourth day of the regular August term of the county court of Mercer county, Missouri, comes Edd Kauffman and more than one hundred of the qualified voters of Mercer county, who are taxpayers therein, and present to the court their petition and application, in writing, praying for a special election to authorize the incurring of an indebtedness for the purpose of erecting a courthouse at the city of Princeton, Missouri, in the sum of not exceeding $ 75,000, and to issue bonds for such indebtedness and to levy sufficient taxes to pay the same, and
Whereas, It has become necessary for Mercer county, Missouri, to incur an indebtedness for the purpose of building a courthouse in excess of the total income and revenue of said county, as provided for in any one year as limited by law.
Now, therefore, it is hereby ordered that a special election be held in the county of Mercer and State of Missouri on Tuesday, the third day of October, 1911, for the purpose of authorizing the incurring of said indebtedness; the issuance of said bonds and the levying of such taxes, and that at least twenty days' notice of said election be given by publication in the Princeton Telegraph, the Princeton Post and the Mercer Signal, three several newspapers published in said county of Mercer and State of Missouri; that such special election will be held on Tuesday, the third day of October, 1911; that the amount of the indebtedness shall be the sum of $ 75,000, and that bonds shall be issued therefor.
That said bonds shall run for a term of fifteen years, with the option of payment at any time after five years, and shall draw interest at the rate of five per cent per annum.
That the tax levy of Mercer county, Missouri, be increased fifteen cents on the one hundred dollars valuation to pay the interest and provide a sinking fund to retire said bonds.
That the
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