Arkansas-Missouri Power Corp. v. City of Potosi

• Decision Date: 09 September 1946
• Docket Number: 39718
• Citation: 196 S.W.2d 152,355 Mo. 356
• Parties: Arkansas-Missouri Power Corporation, a Corporation, and Fred Hornsey, Robert Hale, Howard A. Wolf, P. T. Maxwell, George Carr, J. S. Higgins, and C. R. Crow, Appellants, v. City of Potosi, Missouri, a Municipal Corporation, G. F. Cresswell, Mayor of the City of Potosi, Missouri, Abraham Najim, Bruce Miles, H. S. Hartzell and Harry Branaugh, Members of the Board of Aldermen of the City of Potosi, Missouri, Letcher J. Higginbotham, City Clerk of the City of Potosi, Missouri, and Baum-Bernheimer Company, a Corporation
• Court: Missouri Supreme Court

196 S.W.2d 152

355 Mo. 356

Arkansas-Missouri Power Corporation, a Corporation, and Fred Hornsey, Robert Hale, Howard A. Wolf, P. T. Maxwell, George Carr, J. S. Higgins, and C. R. Crow, Appellants, v. City of Potosi, Missouri, a Municipal Corporation, G. F. Cresswell, Mayor of the City of Potosi, Missouri, Abraham Najim, Bruce Miles, H. S. Hartzell and Harry Branaugh, Members of the Board of Aldermen of the City of Potosi, Missouri, Letcher J. Higginbotham, City Clerk of the City of Potosi, Missouri, and Baum-Bernheimer Company, a Corporation

No. 39718

Supreme Court of Missouri

September 9, 1946

Appeal from St. Francois Circuit Court; Hon. Norwin D Houser, Judge.

Affirmed.

Patterson Chastain & Smith and Samuel Richeson for appellants.

(1) The indebtedness created by the bonds which the City proposed to issue was invalid because it was not authorized by two-thirds of the voters voting at an election held for that purpose. Constitution of 1875, Art. X, Sec. 12; Sec. 7180, R.S. 1939. (2) The purported election of October 17, 1944, was invalid because it was not held by persons authorized either in law or in fact to hold such election. Sec. 7369, R.S. 1939. (3) It was not held at the places provided by the ordinance and notice of election. Sec. 7369, R.S. 1939. (4) The certificate of the result of the election was not signed by persons authorized to execute such certificate. Sec. 7099, 7369 7371, R.S. 1939. (5) The purported election was held under many gross irregularities. (6) The court has jurisdiction in equity to restrain the issuance of the unauthorized bonds. Mo. Elec. Power Co. v. Mountain Grove, 176 S.W.2d 612; Baum v. St. Louis, 343 Mo. 738; Thornburgh v. School District, 175 Mo. 12; Gaston v. Lamkin, 115 Mo. 21; Sec. 3306, R.S. 1939.

S. G. Nipper, M. C. Matthes and J. W. Thurman for respondents.

(1) Petition or bill in equity must be considered as a whole to determine its character and general scope; and in considering plaintiffs' amended bill in equity it is clear that appellants are attacking the validity of a bond election because of irregularities in the conduct of the election, and are not attacking the validity of a bond issue. State ex rel. K.C. Mo. River Nav. Co. v. Den, 279 S.W. 65; Goode v. Central Coal & Coke Co., 151 S.W. 508; Phillips v. Thompson, 35 S.W.2d 382. (2) The validity of a bond election cannot be attacked by a proceeding in equity, and since it is apparent from a consideration of plaintiffs' amended petition, as a whole, that plaintiffs are attacking the validity of the bond election on account of alleged irregularities and fraud, the motion to dismiss said petition was properly sustained. Boney v. Sims, 263 S.W. 412; State ex rel. Ray County v. Hackman, 245 S.W. 554; State ex rel. Wahl v. Speer, 223 S.W. 655; Long v. Consolidated School District No. 7, 53 S.W.2d 867; State ex rel. v. Drain, 73 S.W.2d 804; State ex rel. v. Waltner, 100 S.W.2d 272. (3) Upon consideration of plaintiff's amended petition as a whole, as it must be, it is clear that said petition merely alleges irregularities in the conduct of the bond election, and that such irregularities invalidated the results of said election. It is well established that such irregularities do not invalidate results of a bond election. State ex rel. v. Hackman, 202 S.W. 7; State ex rel. v. Smith, 115 S.W.2d 816; Long v. Consolidated School District No. 7, 53 S.W.2d 867. (4) In this case the only construction to be placed on appellants' amended petition, is that the persons who conducted the election, were de facto judges and clerks thereof. Acts of a de facto officer, although his title may be had, are valid so far as they concern public or rights of third persons who have an interest in things done, and their acts cannot be impeached collaterally. State ex rel. City v. Drain, 73 S.W.2d 804; Dalton v. Fabius Drainage Dist., 184 S.W.2d 776.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

This is a suit in equity to enjoin the issuance registration, and purchase of $ 60,000 of general obligation bonds of the City of Potosi, Missouri, the object of said bond issue being the erection or purchase of an electric light plant. A motion by defendants to dismiss plaintiffs' petition was sustained and plaintiffs, in due course, appealed.

Plaintiffs' first amended petition, on which the case was submitted, alleged that plaintiffs were resident tax-paying citizens of and owned real and personal property in said City; that said City was a city of the fourth class; that the individual defendants were officials of said City (the Mayor, Members of the Board of Aldermen, the City Clerk), and that said municipality and the corporate defendant, Baum-Bernheimer Company, had agreed in March, 1944, to sell and purchase, respectively, said bonds. The petition alleged that said City on September 4, 1944, passed Ordinance No. 219, which called for a special election to be held on October 17, 1944, to authorize the issuance of said bonds and, among other things, designated the polling places and appointed the judges and clerks for said election in each of the two wards of said City.

Plaintiffs' petition next alleged "that no election was ever held in said city pursuant to said Ordinance No. 219" and therefore said City and its officers "are wholly without authority to issue said bonds." However it did not stop there but, proceeding further and anticipating defenses, disclosed that an election was held in said City on October 17, 1944; that only one of the four judges and only two of the four clerks named in said Ordinance No. 219 functioned as judges and clerks, respectively, of said election, and that three unauthorized persons purporting to act as judges and two unauthorized persons purporting to act as clerks at said election joined in certifying to the city authorities "that they had held an election at the County Court Room for the First Ward and at the Elsey-Dickey Garage for the Second Ward, and that more than two-thirds of the qualified voters voting as said places voted in favor of said proposition"; that said certification is wholly void because said persons acted as judges and clerks without being named in said ordinance, they being without authority to so act.

Plaintiffs also alleged that said election was a nullity because it was not held at the places appointed by said ordinance in that the county court room at the Washington county courthouse was the polling place for the First ward of said City whereas the office of the Circuit Clerk of the Circuit Court in said courthouse had been appointed as the polling place for said ward; that the Elsey-Dickey garage on High street was the polling place for the Second ward of said City whereas the A. Najim garage, one block distant and across the street, had been appointed as the polling place for said ward; and that qualified voters had not voted on account of being unable to find the polling place.

Plaintiffs' petition contains other charges. They are not urged here, we understand, because they "cannot be made the basis of an election contest," quoting plaintiffs' brief. Such charges were briefly to the effect unqualified persons voted -- nonresidents and minors; the judges were guilty of misconduct; the voters were intimidated; that a secret ballot and ballot boxes were not provided; and that the polling places were not kept open until 7 p.m. The foregoing is sufficient for the issues presented.

Plaintiffs point to the allegation "that no election was ever held in said City pursuant to said Ordinance No. 219" and assert a cause of action for equitable jurisdiction was stated. A pleading is examined and considered as a whole in determining its sufficiency. State ex rel. v. Dew (Banc), 312 Mo. 300, 319, 279 S.W. 65, 71(3, 4); Phillips v. Thompson, 225 Mo.App. 859, 864, 35 S.W. 2d 382, 385(1); 41 Am. Jur. 337, Sec. 70. Plaintiffs' petition did not stop with the above allegation but proceeded to modify the same by stating plaintiffs' case on the facts. Defendants' motion to dismiss did not admit the truth of the quoted allegation. Plaintiffs recognize this as they stress here the failure of those named in the ordinance as judges to serve and voting in one of the precincts about a block away and across the street from the place designated in the ordinance as the real grounds for injunctive relief. Their brief states they would not be here had the judges named in the ordinance certified to the results and that the election was held at the designated places. In reality they attack the election for irregularities occurring during its progress.

Plaintiffs stress an observation in Missouri Electric Power Co. v City of Mountain Grove, 352 Mo. 262, 271, 176 S.W. 2d 612, 617 (13); as authorizing the instant suit; viz.: "But if, under the guise of an election which is really unauthorized by law, the property or person of a citizen is imperiled, equity will interfere." The statement, we think, is clear enough, conforms with the holdings in the cases cited, as well as the holdings of other cases in plaintiffs' brief; that is, interference by a court of equity is proper where the election would be a nullity and, consequently, useless. In Baum v. City of St. Louis, 343 Mo. 738, 123 S.W. 2d 48, a prerequisite to the passage of a valid ordinance was lacking; viz.: compliance with the charter requirement that the Board of Public Service of the...