Missouri Elec. Power Co. v. Smith

Decision Date25 July 1941
Docket Number37419
PartiesMissouri Electric Power Company, a Corporation, Appellant, v. Forrest Smith, State Auditor
CourtMissouri Supreme Court

Rehearing Denied October 30, 1941.

Appeal from Moniteau Circuit Court; Hon. Sam C. Blair Judge.

Affirmed.

A P. Stone, Jr., for appellant.

(1) Having registered on October 13, 1932, bonds of City of Sullivan in aggregate principal sum of $ 80,000 authorized by special election of September 1, 1931, respondent has no right or authority to register additional bonds in aggregate principal sum of $ 80,000, dated April 15, 1940. Sec. 3306, R. S. 1939, formerly Sec. 2920, R. S. Mo. 1929; Sec. 2915, R. S. 1929; Prickett v. City of Marceline, 65 F. 469, affirmed 69 F. 462; Sidey v. City of Marceline, 237 F. 168; State ex rel. Dexter v. Gordon, 251 Mo. 303, 158 S.W. 683; Moller v. City of Galveston, 23 Tex. Civ. App. 693, 57 S.W. 1116; Walton v. Arkansas Const. Comm., 80 S.W.2d 927; Bryan v. District Trustees of District No. 16 Harris County, 254 S.W. 1034; Schumacher v. City of Flint, 232 N.W. 406; Potter v. Lainhart, 33 So. 251. (2) By reason of lapse of time coupled with changed conditions, authority of city officials to issue bonds upon special election of September 1, 1931, has terminated, and said special election will no longer be accepted as expressing the present sense of the voters of Sullivan. Sec. 7369, R. S. 1939; Barber Asphalt Paving Co. v. Kansas City Hydraulic Press Brick Co., 170 Mo.App. 503; State ex rel. Dexter v. Gordon, 251 Mo. 303, 158 S.W. 683. (3) In seeking to register and negotiate second $ 80,000 bond issue for purpose of erecting municipal electric plant and distribution system in Sullivan, city officials have been guilty of constructive or legal fraud, and registration of such bonds should be enjoined to prevent perpetration or furtherance of such fraud. State ex rel. v. Gates, 190 Mo. 540, 89 S.W. 881; Kansas City v. Hyde, 196 Mo. 498, 96 S.W. 201; Stonemets v. Head, 248 Mo. 243, 154 S.W. 108; Murphy v. Greensboro, 190 N.C. 268, 129 S.E. 614; Drummond v. City of Columbus, 136 Neb. 87, 285 N.W. 109, 115; 26 C. J. 1061, sec. 4; 32 C. J. 260, sec. 410; 4 Dillon on Mun. Corps. (5 Ed.), sec. 1575. (a) In attempting to erect a municipal electric plant, city officials are exercising a private, public or municipal function, as distinguished from a legislative or governmental function, and are subject to judicial supervision and control. State ex rel. v. Neosho, 203 Mo. 40, 101 S.W. 99; State ex rel. Subway Co. v. St. Louis, 145 Mo. 551, 46 S.W. 981; Riley v. Independence, 258 Mo. 671, 167 S.W. 1022; Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960; 43 C. J. 183, sec. 180. (b) Powers granted to municipal corporation are to be strictly construed and all doubts resolved against it. State ex inf. Chaney v. West Mo. Power Co., 313 Mo. 283, 281 S.W. 709.

Roy McKittrick, Attorney General, and Arthur O'Keefe, Assistant Attorney General, for respondent; Joseph T. Davis, James Booth and James L. Anding of counsel.

(1) This appeal involves merely a moot question, because the State Auditor has already registered the bonds in question, and for this reason the appeal should be dismissed. State ex rel. Meyers v. Shinnick, 19 S.W.2d 676; Fugel v. Becker, 2 S.W.2d 743; State ex rel. Winkelman v. Westhues, 269 S.W. 379; Trammel v. Kirk, 278 S.W. 739; 3 C. J., sec. 113, p. 358; Sec. 115, p. 360. (a) Where the act sought to be enjoined has already been committed, equity will not interfere, since the granting of an injunction under such circumstances would be useless. Corken v. Workman, 98 S.W.2d 153; Fugel v. Becker, 2 S.W.2d 743; Carlin v. Wolff, 154 Mo. 539; Gibson v. Powell, 96 Mo.App. 681; Holland Realty & Power Co. v. St. Louis, 282 Mo. 180; 32 C. J., sec. 24, p. 45; 14 R. C. L., sec. 7, p. 309. (b) This being a suit in equity, and the probative value of the evidence as a whole being at issue, it is the duty of appellant to print in its abstract of the record all the evidence, including the exhibits, and for failure to do so, this appeal should be dismissed. Robison v. Cantley, 44 S.W.2d 199; Aulgur v. Strodtman, 46 S.W.2d 172; Carder v. Carder, 60 S.W.2d 706; Robinson v. Burton, 139 S.W.2d 943; Stalcup v. Bolt, 139 S.W.2d 544; Colorado Milling & Elevator Co. v. Rolla Wholesale Grocery Co., 102 S.W.2d 681; Manchester Iron Works v. Wagner Construction Co., 107 S.W.2d 89; Redler v. Travelers Ins. Co., 117 S.W.2d 241; Ross v. Speed-O-Corporation of America, 130 S.W.2d 180; Bueker v. Aufderheide, 136 S.W.2d 281; Woods v. Dowd, 137 S.W.2d 426. (c) Where, on appeal in an equity case, the record affirmatively shows that it does not contain all the evidence, and all the contents of exhibits before the trial court, the appellate court will not re-examine the facts, but will presume that the judgment was authorized thereby. Soderberg v. Pierce, 33 Mo.App. 60; State ex rel. Maplewood v. Southern Surety Co., 19 S.W.2d 691; Euler v. State Highway Comm., 55 S.W.2d 719, 62 S.W.2d 711. (2) The execution of municipal bonds may precede their sale and delivery, and the bonds are issued, not when they are executed, but when they are delivered, that is when the possession and control thereof passes from the municipality to the purchaser, or some person in whose hands they become a claim or charge against the municipality. R. S. 1939, secs. 3301, 3306, 7180; Folks v. Yost, 54 Mo.App. 55; State ex rel. Compton v. Walter, 23 S.W.2d 167; State ex rel. Building Comm. v. Smith, 74 S.W.2d 27; Scott v. Abbott, 160 F. 573; Corning v. Railroad Commrs., 102 F. 57; Perkins County v. Graff, 114 F. 441; New York Equitable Trust Co. v. Great Shoshone Power Co., 228 F. 516; Brownlee v. Town of Greenwich, 114 N.Y. 518, 22 N.E. 27; 11 C. J. S., sec. 21, p. 406; 33 C. J., sec. 18, p. 826; 44 C. J., sec. 4202, p. 1224; Moering v. Shields, 28 Cal.App. 512; Steinbuick v. Geary County, 100 Kan. 93; Germania Savs. Bank v. Village of Suspension Bridge, 26 N.Y.S. 98; Yesler v. City of Seattle, 25 P. 1014; Gage v. McCord, 51 P. 977; Austin v. Valle, 71 S.W. 414; Hidalgo Drain. Dist. v. Davidson, 120 S.W. 849. (3) The authority of the City of Sullivan to issue the bonds authorized by the special election is not lost or exhausted where there was reason for the delay and there was no intention on part of the city of abandoning the project. State v. Hackman, 202 S.W. 7; State ex rel. Carthage v. Gordon, 217 Mo. 103; Nall v. City of Elizabethtown, 254 S.W. 893; McNichols v. City & County of Denver, 74 P.2d 99; State ex rel. Boynton v. City of Topeka, 41 P.2d 260; Weathers v. Todd County, 271 Ky. 172, 111 S.W.2d 638; Stokes v. City of Montgomery, 82 So. 663; Covington v. McInnis, 142 S.E. 650; Jones v. Paving Co., 174 Mo.App. 393; Heman Const. Co. v. Lyon, 277 Mo. 628, 211 S.W. 68. (4) Under the Constitution and statutes of Missouri, the City of Sullivan has the right and power to issue bonds for the purpose of building a municipal electric plant and distribution system after authorization by a two-thirds vote of its electors. Mo. Const., Art. X, Secs. 12 and 12a; R. S. 1939, secs. 7180, 7368-7372, 7554, 7786-7796; Missouri Serv. Co. v. City of Stanberry, 108 S.W.2d 25; Missouri P. and L. Co. v. City of Pattonsburg, 125 S.W.2d 21; State ex rel. City of Marshall v. Hackman, 274 Mo. 551. (a) Where there is an express statutory grant of power and the method of exercising such grant is not prescribed, the city has implied authority to exercise the power granted in any reasonable and proper manner. R. S. 1939, secs. 7168, 7221; Taylor v. Dimmitt, 336 Mo. 330, 78 S.W.2d 841; State ex rel. City of Memphis v. Hackmann, 273 Mo. 670. (b) So long as the funds derived from the sale of the bonds are used for their authorized purpose, there can be no fraud or abuse of power. Missouri Serv. Co. v. City of Stanberry, 108 S.W.2d 25; Southworth v. Mayor of Glasgow, 232 Mo. 108; Palmer v. City of Liberal, 334 Mo. 266, 64 S.W.2d 265; State ex rel. Kellet v. Johnson, 330 Mo. 452, 50 S.W.2d 121. (c) Equity will not interfere with the exercise of discretionary powers of a municipal corporation or its officers, in the absence of fraud, malice or bad faith. City v. Knox, 6 Mo.App. 591; Kansas City v. Trieb, 76 Mo.App. 478; Morse v. Westport, 136 Mo. 276; Heman v. Schulte, 166 Mo. 409, 189 U.S. 507; St. Louis v. Ry. Co., 178 S.W. 78; McMurray v. Kansas City, 283 Mo. 479; In re Kansas City Ordinance No. 39946, 252 S.W. 404; Komen v. St. Louis, 289 S.W. 838; Russo v. Miller, 3 S.W.2d 266; Kansas City v. K. C. Terminal, 25 S.W.2d 1055; Kirksville ex rel. v. Harrington, 35 S.W.2d 614; Beals v. Garden City, 50 S.W.2d 179; Seifert v. Poplar Bluff, 112 S.W.2d 93; 43 C. J., secs. 289, 316, pp. 271, 303; 44 C. J., secs. 4551, 4555, 4572, 4577, pp. 1376, 1379, 1394, 1395, 1405; McQuillin on Mun. Corps. (2 Ed.), sec. 390. (d) The registration statute, Revised Statutes 1939, section 3306, providing a remedy by injunction, refers only to regularity of the proceedings underlying the bonds and to the constitutional limitations upon such indebtedness, and not to the interruption of the financial arrangements of the city. State ex rel. v. Waltner, 100 S.W.2d 273. After cancellation and public destruction of the bonds dated February 1, 1932, it was the duty of the State Auditor to register the bonds dated April 15, 1940, executed in lieu thereof. R. S. 1939, sec. 13046; State ex rel. v. Hackmann, 273 Mo. 670.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION
DALTON

Action in equity to enjoin the State Auditor from registering, pursuant to Art. 6, Chap. 16, R. S. 1939, Mo Stat. Ann., p. 760 et seq., Sec. 2914 et seq., $ 80,000 of Electric Light Bonds of the City of Sullivan, dated April 15, 1940. A preliminary injunction was granted ex parte and pla...

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