State ex rel. City of Memphis v. Hackman

CourtUnited States State Supreme Court of Missouri
Citation202 S.W. 7,273 Mo. 670
PartiesTHE STATE ex rel. CITY OF MEMPHIS v. GEORGE E. HACKMAN, State Auditor
Decision Date12 March 1918

Writ granted.

Hudson V. Smoot and Charles & Rutherford for relator.

(1) Even if it be found that the ordinance calling the election was not properly adopted, or was not signed by the mayor, or both, yet it was sufficient as an order to "order" a special election to vote upon the proposition of issuing bonds. Sec. 9545, R. S. 1909; State ex rel. v Allen, 178 Mo. 573. (2) It is not necessary that the ordinance calling the election nor the notice of election should specify the rate in interest nor the terms of the bonds, nor the paper in which the notice is to be published nor the number of days the notice is to be given. Sec. 9545 R. S. 1909; State ex rel. v. Gordon, 217 Mo. 117; Catron v. Lafayette Co., 106 Mo. 669; Bauch v Cabool, 165 Mo.App. 494; Leach v. McDonald, 231 Mo. 586. (3) (a) Where the notice of a special election to vote on a proposition to issue bonds advises the voters that the election will be held at the usual voting places, this is a sufficient designation of the polling places. State ex rel. v. Gordon, 242 Mo. 621; Bauch v. Cabool, 165 Mo.App. 494; O'Laughlin v. Kirkwood, 107 Mo.App. 302; Hurd v. Fairbury, 128 N.W. 639; State ex rel. v. Ross, 160 Mo.App. 693. (b) Where an ordinance specified that all special elections should be held at one place to be designated, and a special election to vote on a proposition to issue bonds was held in each of the four wards of the city, held, that in the absence of fraud, this did not invalidate the election. State ex rel. v. Allen, 178 Mo. 576; State ex rel. v. Westport, 116 Mo. 582. (c) Conversely, holding an election in only one of several wards in a city did not, in the absence of fraud, invalidate the election. Light & M. Co. v. Lebanon, 163 Mo. 246. (4) The ballots used by the electors were a substantial compliance with Sec. 9546, R. S. 1909, which is all that is required. State ex rel. v. Staugger, 197 S.W. 251; State ex inf. v. Clardy, 267 Mo. 384; State ex rel. v. Jones, 266 Mo. 199; Evans v. McFarland, 186 Mo. 709; Russell v. Gray, 164 Mo. 95. (5) Elections in cities of the fourth class are required to be held under the provisions of Art. 2, Chap. 43, R. S. 1909. Sec. 9302, R. S. 1909; State ex rel. v. McMillan, 108 Mo. 160. (6) In the absence of express statutory declaration that an election is void if not held in strict compliance with the provisions of the statute as to the method of conducting the election, such provisions are universally held to be directory. Sanders v. Lacks, 142 Mo. 255, 263. Almost any irregularities in the manner of holding elections, unattended by fraud, will not vitiate the election. Skelton v. Ulen, 217 Mo. 393. (a) Provisions of a statute as to the time of opening and closing of the polls are so far directory that an irregularity in this respect which does not deprive a legal voter of his vote or admit a disqualified person to vote will not vitiate the election. Swepton v. Barton, 39 Ark. 557; People v. Prewitt, 124 Cal. 7; Packwood v. Brownell, 121 Cal. 478; Cleland v. Porter, 74 Ill. 76; Clark v. Leathers, 9 Ky. R. 558; Fry v. Booth, 19 Ohio St. 25; State v. Smith, 4 Wash. 661; Pickett v. Russell, 42 Fla. 116. (b) A slight change in the place of holding the election will not invalidate it. 15 Cyc. 344; People v. Brown, 189 Ill. 624; Dale v. Irwin, 78 Ill. 180; Simons v. People, 119 Ill. 617; Chicago v. People, 80 Ill. 496; Preston v. Culbertson, 58 Cal. 209; Lafayette, etc., R. Co. v. Geiger, 34 Ind. 185; Farrington v. Turner, 53 Mich. 27; Ex parte Williams, 35 Tex. Cr. 553; State v. Calhoun, 61 Miss. 558; People v. Carson, 155 N.Y.S. 491. (c) Because persons assume to act as judges of election without regular appointment, or election, this will not invalidate an election. 15 Cyc. 312; Sanders v. Lacks, 142 Mo. 255; Keller v. Chapman, 34 Cal. 640; Sprague v. Noeway, 31 Cal. 174; Hunnicut v. State, 74 Tex. 239. (d) Failure of judges of election to be sworn is not a fatal irregularity. Sanders v. Lacks, 142 Mo. 255; Whipley v. McCune, 12 Cal. 357; State v. County Com., 22 Fla. 34; State v. Alachua Co., 17 Fla. 16; People v. Willard, 29 Ill. 423; Ackman v. Haneck, 147 Ill. 519; Taylor v. Taylor, 10 Minn. 107; Heyfron v. Maloney, 9 Mont. 497; Wells v. Taylor, 5 Mont. 202; 15 Cyc. 313. (7) Although the result of an election should be certified to the council by the judges of the election (Sec. 9547, R. S. 1909), nevertheless if the result of the election was ascertained in any fair and honest manner, it will be upheld, especially when no fraud is claimed or proven. Bauch v. Cabool, 165 Mo.App. 499; State ex rel. v. Gordon, 217 Mo. 117; O'Laughlin v. Kirkwood, 107 Mo.App. 319. (8) Failure to provide for levy of tax to pay principal and interest of bonds will not invalidate them or prevent their being registered. State ex rel. v. Gordon, 217 Mo. 118; State ex rel. v. Walker, 193 Mo. 708. (9) The rule is that where the authority to issue bonds exists, the antedating of them will not render them invalid, providing in other respects there has been a compliance with the conditions prescribed by law and with the authority conferring the power, and when the officers executing them were such officers at the time the bonds bear date. Prettyman v. Supervisors, 19 Ill. 414; Morrell v. Smith Co., 33 S.W. 906; Moller v. Galveston, 57 S.W. 1121; Yesler v. Seattle, 1 Wash. St. 322; Flagg et al. v. Palmyra, 33 Mo. 451; State v. Moore, 46 Neb. 592; School Dist. v. Bank, 19 Neb. 89. (10) There is nothing in the record from which it may be even inferred that the voters of the city desire to rescind their action in assenting to the issuance of the bonds in question. State ex rel. v. Gordon, 217 Mo. 122; State ex rel. v. Gordon, 251 Mo. 325; Chickaming Twp., 106 U.S. 663; Moller v. Galveston, 57 S.W. 1121.

Frank W. McAllister, Attorney-General, John T. Gose and S. P. Howell, Assistant Attorneys-General, for respondent; J. M. Jayne of counsel.

(1) The powers of a municipal corporation will be strictly construed and if there be any reasonable doubt of the existence of the power it will be denied. 1 Dillon on Municipal Corporations (4 Ed.), secs. 89, 509; 38 Cyc. 647; Carthage v. Light Co., 97 Mo. 20; Kansas City v. Forber, 64 Mo.App. 608; Carpenter v. Lathrop, 50 Mo. 483. (2) The board of aldermen alone had the power to call an election and designate the paper by which notice thereof should be given. They cannot delegate this power to anyone else and their failure to call such election and to make such designation renders such election void. The board cannot authorize the clerk or any other person to make this notice and designate the paper or the manner by which notice thereof should be given. 15 Cyc. 322; 1 Dillon on Mun. Corp. (4 Ed.) sec. 96; State v. Gattin, 143 Mo.App. 605; State v. Botkin, 109 Mo.App. 578; Martin v. Bennett, 139 Mo.App. 244. (3) When the time and place of holding an election are not fixed by law, but the election is to be called and the time and place fixed by some authority named in the statute, it is essential to the validity of such election that it be called and the time and place of holding it be fixed by the very agent designated by law and by none other. Sec. 9302, R. S. 1909; Laws 1915, p. 360. The statute as amended was in force at the time the election complained of in this suit was held, and contained the following sentence: "The polling places for all elections in cities of the fourth class and the judges thereof shall be selected and specified by the respective boards of aldermen of such cities by resolution, ordinance or otherwise." An examination of the record in the case at bar makes no showing that the board of aldermen did, in fact, specify the place where the election should be held, nor is there any allegation presented by relator's petition showing that the requirement of the statute in his respect was in fact complied with. Martin v. Bennett, 139 Mo.App. 237; Thornberg v. School Dist., 175 Mo. 12. (4) The particular provision of the statute, Laws 1915, p. 360, reads: "The board of aldermen shall prescribe by ordinance the manner of making returns of such election." An examination of the record in this case fails to disclose that the terms of the statute were complied with. (5) The law in force at the time the election was held, required that the polls in such election shall be open at six o'clock in the morning and continue open until seven o'clock in the evening. Laws 1915, p. 281. The record in this case shows that the polls were not open at six o'clock in the morning and were not continued open until seven o'clock in the evening. By reason of this fact the election is illegal. (6) There is no evidence before this court that the ordinance calling this election on February 7, 1916, was ever read three times, or that it was ever voted upon by the board of aldermen and the ayes and nayes, entered on the journal, or that the mayor ever approved the same. Under the statute this is mandatory, and this ordinance passed calling said election in not complying with said sections, is void. Secs. 9369, 9370, R. S. 1909; Hook v. Bowden, 144 Mo.App. 331. (7) The form of the ballot set out in the ordinance calling an election to be held on February 28, 1916, does not comply with Sec. 9546, R. S. 1909. Said section 9546 provides the ballot shall be in the following form: "For Increase of Debt. Yes. For Increase of Debt. No." There is a difference between the ordinance and the statute and the notice that was published, on the question of form of ballot. (8) The poll books, ballot boxes and tally sheets were not delivered by the city clerk to the judges of the election, but the janitor of the courthouse...

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