Bauch v. City of Cabool

• Decision Date: 03 June 1912
• Citation: 165 Mo. App. 486,148 S.W. 1003
• Parties: BAUCH et al. v. CITY OF CABOOL et al.
• Court: Missouri Court of Appeals

148 S.W. 1003

165 Mo. App. 486

BAUCH et al. v. CITY OF CABOOL et al.

Springfield Court of Appeals. Missouri.

June 3, 1912.

Rehearing Denied July 9, 1912.

1. MUNICIPAL CORPORATIONS (§ 918) — BONDS—ELECTIONS—CALL—VALIDITY.

An order of the board of aldermen directing the mayor to call a bond election is not objectionable as delegating to him the power to call the election; the order stating the date of the election, and the purpose for which it was to be held.

2. MUNICIPAL CORPORATIONS (§ 918) — BONDS—ELECTION—VALIDITY.

Under Rev. St. 1909, § 9545, which requires the notice for a municipal bond election to be given not less than 15 days before the election by publication in some newspaper published in the city, it is no objection that a council in ordering an election failed to designate the newspaper where the notice was given as prescribed by the section.

3. EVIDENCE (§ 83) — PRESUMPTIONS — PERFORMANCE OF OFFICIAL DUTY.

Performance of official duty being presumed, it will be presumed that the polling places for a municipal bond election were selected and specified, as required by Rev. St. 1909, § 9302.

4. MUNICIPAL CORPORATIONS (§ 918) — BONDS — ELECTIONS — NOTICE — PUBLICATION —SUFFICIENCY.

Under Rev. St. 1909, § 9545, which requires a municipal bond election notice to be published in a newspaper not less than 15 days before the election, one publication is sufficient.

5. MUNICIPAL CORPORATIONS (§ 915)—DEBT LIMITS—ASCERTAINMENT.

In determining whether a proposed municipal bond issue exceeds the constitutional limitation of five per cent. of the assessed valuation of the taxable property of the city, assessment of mercantile personalty provided for by Rev. St. 1909, § 11623, is properly included in the assessed valuation.

6. MUNICIPAL CORPORATIONS (§ 1000) — BOND ELECTIONS — VALIDITY — BURDEN OF PROOF.

Where, in an action to enjoin issuance of municipal bonds, plaintiff's allegation that the requisite number of electors did not vote in favor of the bonds is put in issue by a general denial, the burden is on plaintiff to establish the allegation.

7. EVIDENCE (§ 83) — PRESUMPTIONS — PERFORMANCE OF OFFICIAL DUTY.

In the absence of testimony to the contrary, it will be presumed that a municipal election was canvassed and the result declared, as required by law.

8. MUNICIPAL CORPORATIONS (§ 918)—ELECTIONS —CANVAS—VALIDITY.

Under Rev. St. 1909, § 9302, which requires the manner of making municipal election returns to be prescribed by ordinance, a bond election is not vitiated because there was no such ordinance, if the council in any fair and honest manner canvassed and declared the result of the election, especially where no fraud is claimed.

9. MUNICIPAL CORPORATIONS (§ 867) — INDEBTEDNESS —CONSTITUTIONAL LIMIT.

Const. art. 10, § 12, which permits cities to become indebted to an amount exceeding the income and revenue for the current year, when two-thirds of the electors voting at an election to be held for that purpose authorize such indebtedness, does not require a two-thirds vote of all the qualified electors of the city, but only two-thirds of those voting.

10. MUNICIPAL CORPORATIONS (§ 867)—INDEBTEDNESS —CONSTITUTIONAL LAW.

Const. art. 10, § 12, which provides that a city shall not become indebted beyond its current revenue, unless two-thirds of the electors voting at an election held for that purpose assent, does not prevent the Legislature from requiring an additional vote to authorize such indebtedness.

11. MUNICIPAL CORPORATIONS (§ 918)—INDEBTEDNESS —ELECTIONS—VOTE REQUIRED.

Const. art. 10, § 12, prohibits increase of municipal indebtedness beyond the amount of current income, unless two-thirds of the voters of the city authorize such indebtedness. Rev. St. 1909, § 9383, authorizes fourth-class cities to issue bonds for waterworks, etc., if two-thirds of the legal voters of the city assent thereto, "in accordance with article VII, chapter 84, Revised Statutes, 1909." That chapter provides for incurrence of debt with the assent of two-thirds of the legal voters voting at an election held for that purpose. Held, that waterworks bonds must be authorized by two-thirds of the electors of the city, and not merely by two-thirds of those voting; the reference in section 9383 to chapter 84 relating to the manner of holding waterworks bonds elections, and not determining the vote required.

12. MUNICIPAL CORPORATIONS (§ 1000)—INDEBTEDNESS — ELECTION TO AUTHORIZE — SUFFICIENCY OF VOTE.

Under Rev. St. 1909, § 9383, which requires the assent of two-thirds of the electors of a fourth-class city before waterworks bonds can be issued, where there is no registration of the electors, any legitimate evidence is admissible to determine who were qualified voters at the time of the election in a suit to prevent issuance of bonds.

13. MUNICIPAL CORPORATIONS (§ 1000)—INDEBTEDNESS — ELECTION TO AUTHORIZE — PRESUMPTIONS.

In the absence of proof to the contrary, all the electors of a city are presumed to have voted at an election to authorize incurrence of a municipal indebtedness.

14. MUNICIPAL CORPORATIONS (§ 1000) — BOND ELECTIONS—SUFFICIENCY OF VOTE.

That at a municipal election held 14 months previously 164 electors voted does not show that two-thirds of the electors of a city failed to vote to authorize issuance of bonds at an election whereat 102 votes were cast for and 37 against the bonds.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Action by John H. Bauch and others against the City of Cabool and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Dooley & Hiett and W. E. Barton, all of Houston, for appellants. Lamar, Lamar & Lamar, of Houston, for respondents.

GRAY, J.

In May, 1911, a petition was presented to the board of aldermen of the city of Cabool (a city of the fourth class), asking the board to call an election to vote on a proposition to issue bonds to obtain money to be used in constructing waterworks in said city. The board made the following order on the petition: "Whereupon it is by the board ordered that the mayor be, and is hereby, directed to call by proclamation an election to be held on the sixth day of June, 1911, to vote for or against the issue of eighteen bonds, each for the sum of $500.00, due twenty years after date, bearing interest at the rate of six per cent. per annum, payable annually, and the proceeds to be applied to the building and putting in operation a system of waterworks for the use of the city." At the same time the board named the judges for the election. Pursuant to the order, the mayor issued a proclamation notifying the voters that a special election would be held "at the usual places of voting in the city of Cabool, Mo., on the 6th day of June, 1911, for the following purposes: First. To vote for or against the proposition to issue bonds in the sum of $9,000.00 due 20 years from date and bearing 6 per cent. interest per annum, for money to erect and put in operation a system of waterworks for the city of Cabool. Second. To elect a city marshal to serve the unexpired term of R. L. Martin, resigned. By order of board of Aldermen. J. W. Patton, Mayor. Attest: J. W. Mires, City Clerk." This proclamation was published but once, and that on the 18th day of May, 1911, in a weekly newspaper published in the city. The election was held, resulting in 102 votes in favor of the proposition, and 37 against it. The number of votes polled was only a few less than polled at the previous general election in the city. The board of aldermen met two days after the election and proceeded to inspect the returns, and found that 102 votes were cast in favor of the proposition, and 37 against it, and declared that more than two-thirds of the votes cast were in favor of issuing the bonds. This meeting was an adjourned meeting, and on the 3d day of July, 1911, at a regular meeting, Ordinance No. 50 was passed, reciting: "Whereas, this board of aldermen did on the 16th day of May, 1911, make an order for a special election to be held on the 6th day of June, 1911, by the qualified voters of the city of Cabool, Missouri, for the purpose of voting on the question of issuing bonds and building waterworks in said city of Cabool, and whereas, at the adjourned meeting of said board held on the 8th day of June, 1911, for the purpose of counting the votes cast at said election, it was found that more than two-thirds of said voters were in favor of the issue of bonds for the establishment of waterworks." It appears that a copy of this ordinance was sent to the purchaser of the bonds, who was not satisfied with its recital regarding the number of votes cast for the bonds, and returned it with a new ordinance, No. 51, for the board to pass, and which was duly passed at a regular meeting on the 4th day of September, 1911. Section 1 of this ordinance reads: "That at the special election held in the city of Cabool, Missouri, on the 6th day of June, 1911, more than two-thirds of the legal voters of the said city voted in favor of the issuance of bonds of said city in the amount of nine thousand dollars for the purpose of erecting waterworks to be owned by said city." And then follows the statement that, in pursuance to the said vote of the legal voters of the city, the bonds are directed to be issued and negotiated. Before the bonds had been delivered, this suit was instituted by 12 taxpaying citizens of the city, against the city, mayor, and board of aldermen, to restrain the issuing and delivering of the bonds. The cause was tried at the November term, 1911, of the Texas county circuit court, resulting in a judgment in favor of the plaintiffs, and enjoining the defendants from selling or negotiating the bonds. From the judgment defendants appealed to this court.

It is first claimed the election was illegal because the board of aldermen alone had the power to call it and to designate the paper in which notice thereof should be given,...