State ex rel. Litson v. McGowan
| Decision Date | 16 March 1897 |
| Parties | State ex rel. Litson v. McGowan |
| Court | Missouri Supreme Court |
Peremptory writ denied.
W. M Bowker for relator.
(1) If a majority of the voters of the county voting for and against township organization vote for it, then township organization is adopted. R. S. 1889, sec. 8427; Rousey v. Wood, 63 Mo.App. 460. (2) Township organization can only be submitted to the voters at a general election. R. S. 1889 sec. 8424; section 8, article 9, Constitution. (3) Township organization can be determined only by a majority vote of the voters -- by voting at a general election on the question of township organization. Section 8, article 9, Constitution. (4) The use of the term "majority" of voters of a county or school district, or a body of voters, or a city must assent to a proposition in order to adopt it, means a majority of those acting on the proposition. State v Mayor, 37 Mo. 270; State v. Binder, 38 Mo. 451; Richardson v. McReynolds, 114 Mo. 641; Russie v. Brazzell, 128 Mo. 93; State ex rel. v. Ellis, 130 Mo. 90. (5) The term majority of legal voters of county and the term majority of legal voters of county voting on the proposition mean the same thing when applied to some propositions to be determined by voting. State v. Ellis, 130 Mo. 90. (6) The township organization law has been before the court and held good on other questions in the following cases: State v. McGovney, 92 Mo. 428; State ex rel. v. Railroad, 123 Mo. 72.
S. A. Wright for respondent.
(1) In determining the sufficiency of plaintiff's petition, the only question we desire to raise is the constitutionality of section 8427 of the Revised Statutes of 1889. Section 8, article 9, of the Constitution, uses this language: "The General Assembly may provide by general law for township organization, under which any county may organize whenever a majority of the legal voters of such county voting at any general election shall so determine." Section 8427 of the Revised Statutes of 1889, says: "If a majority of the legal voters of the county, voting at such general election for and against township organization, vote for such organization, then it shall be adopted in such county." The Constitution plainly requires a majority of all the votes cast at such general election to be in favor of township organization in order that it may be adopted. If the statute requires less, it is in conflict with the Constitution and not binding. It might be construed, perhaps, to require the same vote as the Constitution. I presume it will not be claimed by anyone, that if the number of votes cast for the proposition was not as many as the Constitution requires, then it was defeated. The plaintiff's petition states seven thousand, four hundred and twenty-eight votes were cast in the county for presidential electors; for township organization three thousand, six hundred and eighty-four -- thirty less than a majority. (2) The Constitution of 1865 requires the assent of two thirds majority of all the legal voters in a township to subscribe to the stock of a corporation, and this court has repeatedly held, that it did not mean two thirds of those voting, but two thirds of all the legal voters in such township, and that any statute requiring a less number was inoperative and void. State ex rel. v. Sutterfield, 54 Mo. 391; State ex rel. v. Bransfield, 67 Mo. 331; State ex rel. v. Harris, 96 Mo. 29; State v. Winkelmeir, 35 Mo. 103; State ex rel. Wear v. Francis, 95 Mo. 44. (3) The Constitution says: "Whenever a majority of the legal voters of such county voting at any general election shall so determine." Determine what? Decide in favor of township organization. The language is not obscure, but if it were necessary to supply, a fair and reasonable rendering would read: "Whenever a majority of the legal voters of such county, voting at any general election, shall so determine by voting in favor of such adoption." (4) This principle was enunciated in State v. Winkelmeir, 35 Mo. 103. The General Assembly had enacted that the corporate authorities of the different cities of the county of St. Louis shall have the power whenever "a majority of the legal voters of the respective cities in the county authorize them so to do, to grant certain privileges." At a city election, for the election of city officers, there was more than thirteen thousand votes cast, but only five thousand and thirty-five voted in favor of the grant of the privileges, and two thousand and one against. The court held that five thousand was not a majority of thirteen thousand, and therefore it was unnecessary to pass upon the other question arising in the case. State ex rel. Wear v. Francis, 95 Mo. 44. (5) It might be added that the convention itself which created the Constitution of 1875, in providing a means of abandoning township organization (section 9, article 9) used language that may be fairly referred to in interpreting and construing the meaning of section 8. In section 9, it says: "If a majority of all the votes cast upon that question shall be against township organization it shall cease in said county." (6) Unlike the cases of State v. Mayor, 37 Mo. 270, and State v. Binder, 38 Mo. 451, the case at bar is relieved from all doubt and uncertainty in ascertaining the number of votes necessary to carry the proposition. The Constitution fixes it in such a manner that it is always ascertainable. The plaintiff's petition recites the vote and shows that it is thirty less than the number required by the Constitution.
OPINION
In Banc.
Mandamus.
This is a proceeding to obtain a writ of mandamus to the defendant, as clerk of the county court in Vernon county. Relator is Mr. Litson, a resident taxpayer and voter of that county, who insists that the proposal for township organization (submitted at the last general election to the voters of the county) was adopted. Defendant has refused to issue notices for the first township elections, appointed by statute for the last Tuesday in March following the adoption of township organization. The object of this action is to compel him to proceed officially in that matter, as prescribed by section 8428 (R. S. 1889).
Defendant waived the issue of an alternative writ and demurred to the petition. The facts are all admitted.
At the general election of 1896 in Vernon county the following votes were recorded:
While the township proposition received a majority of the votes cast thereon, it was not approved by a majority of all the legal voters voting at that election. The canvassing board of the county, however, declared the proposition adopted. In so doing they, no doubt, intended to follow section 8427 as their guide. That section declares the vote required to adopt the proposition to be "a majority of the legal voters of the county voting at said election for and against township organization." The defendant contends that the words we have marked by italics are in conflict with the organic law of the State, if construed (as they have been by the canvassing board) to mean that a number short of a majority of all the votes cast on any issue at the election will suffice to adopt the township proposition. Relator on the other hand, claims that section 8427 is entirely constitutional, and that the proposition was adopted because approved by a majority of those who voted on that particular question.
The parts of the Constitution bearing pointedly on this subject are found in the ninth article as follows:
etc.
etc.
The sole question before the court is the true meaning of the clause, "whenever a majority of the legal voters of such county, voting at any general election, shall so determine."
The words "so determine" we consider to mean "determine to organize under the general law for township organization." But the majority required to so determine must be a majority of the legal voters of such county, voting at any general election, just as the Constitution declares.
The organic law is subject to the same general rules of construction as other laws, due regard being had to the broader objects and...
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