Bauch v. City of Cabool
| Decision Date | 03 June 1912 |
| Parties | JOHN H. BAUCH et al., Respondents, v. THE CITY OF CABOOL et al., Appellants |
| Court | Missouri Court of Appeals |
Motion For Rehearing Denied, July 9, 1912.
Appeal from Texas Circuit Court.--Hon. L. B. Woodside, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Dooley & Hiett and W. E. Barton for appellants.
(1) Order calling the election sufficient, the statute only requires the board to make an order. State ex rel. v Allen, 178 Mo. 555; State v. Armstrong, 140 Mo.App. 721; R. S. 1909, sec. 9545. (2) Notice of election was given by mayor's proclamation, which was sufficient. State ex rel. v. Gordon, 217 Mo. 110; Oloughlin v. Kirkwood, 107 Mo.App. 302; Ex parte Leach, 149 Mo.App. 326; State v. Dugan, 110 Mo. 146. (3) The designation at the usual voting places in the city of Cabool Missouri, is a sufficient designation of a voting place. Evans v. McFarland, 186 Mo. 709; State ex rel v. Allen, 178 Mo. 555; 10 Cyc. 626; Patton v. Watkins, 90 A. S. R. 76. (4) In order to annul the result of an election it must be shown that some mandatory statute has been violated, or that the election was conducted in such an irregular manner that the true sentiment of the voters was not expressed by it. Skelton v. Ulen, 217 Mo. 383; Bowers v. Smith, 111 Mo. 45; Ex parte Leach, 149 Mo.App. 329. (5) One publication of the mayor's proclamation giving notice of election was sufficient. Southworth v. Glasgow, 232 Mo. 108. (6) It was not necessary for the board of aldermen to designate the paper in which the notice of election was published. The board had a right to and did delegate the selection of the newspaper to the mayor. Ex parte Leach, 149 Mo. 329. (7) Merchant's property should be considered in computing the taxible property of the city of Cabool for the basis on which a levy of five per cent could be made for the purpose of issuing the waterworks bond. R. S. 1909, sec. 11623. (8) Where the statute did not provide that the legal voters should be taxpayers it has been held that to determine whether proposition carried or not the officers should look only to the election returns, and accept the testimony of the ballot box as conclusive on the subject. Carroll County v. Smith, 111 U.S. 556, 28 L.Ed. 517; Cass County v. Johnson, 95 U.S. 260, 24 L.Ed. 416; Lawrence v. Ingersol, 6 L.R.A. 308; Bryan v. Stephenson, 35 L.R.A. 572; In re Denny, 51 L.R.A. 725; State ex rel. v. Mayor, 37 Mo. 270. (9) When the board of aldermen were by the Legislature given the power in some manner to determine whether two-thirds of the legal voters of the city had given their assent to the issue of the waterworks bond, the Legislature conferred on the board of aldermen a judicial and not merely a ministerial power. A power requiring evidence of some kind to determine and discretion in deciding and its decision in the matter in the absence of fraud is beyond the control of the courts. State er rel. v. Steers, 44 Mo. 223; State er rel v. Garesche, 3 Mo.App. 544; 10 Cyc. 803; State ex rel. v. Gregory, 83 Mo. 123; State ex rel. v. State Board of Health, 103 Mo. 222; State ex rel. v. Oliver, 116 Mo. 188; State ex rel. v. St. Louis, 158 Mo. 505; Paving Co. v. French, 158 Mo. 534; Prior v. Buehler Co., 170 Mo. 451. (10) The well settled presumption of the regularity of official action and that all things required to be done by the board of aldermen in determining whether two-thirds of the legal voters of Cabool voted for the issue of bonds was done and done rightly, applies to the action of the board of aldermen in passing the ordinance, finding that two-thirds of the legal voters of the city of Cabool had so voted. In re Bothwell, 44 Mo.App. 222; State ex rel. v. St. Louis, 174 Mo. 136; State ex rel. v. St. Louis, 169 Mo. 31; Paving Co. v. Handlan, 150 Mo.App. 246; Cox v. Mignerry Co., 126 Mo.App. 679; Quinn v. Schneider, 118 Mo.App. 39. (11) A party attacking a municipal ordinance on the ground that it was not passed as required by law must allege and the burden is on him to prove such to be a fact. Cox v. Mignerry Co., 126 Mo.App. 682. (12) Section 9547, Revised Statutes 1909, does not require the proper officers of a city or town to pass an ordinance finding that two-thirds of the legal voters of a city voted at the election at the time they canvassed the vote, and though it did, such provision is not mandatory and the failure to observe it would not defeat the ordinance. St. Louis v. Foster, 52 Mo. 513; Water Co. v. Aurora, 129 Mo. 140; State ex rel. v. Gordon, 217 Mo. 103.
Lamar, Lamar & Lamar for respondents.
(1) The board of aldermen alone had the power to call an election and to designate a paper or medium in 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 the election void. 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 agency designated by law and by none other. 15 Cyc., 322; 1 Dillon on Mun. Corp. (4 Ed.), sec. 96; State v. Gatlin, 143 Mo.App. 605; State v. Baldwin, 109 Mo.App. 578; Martin v. Bennett, 139 Mo.App. 244; Blickensderfer v. Hanna, 231 Mo. 109. (2) Section 9302 provides, "The polling places for an election in cities of the fourth class shall be selected and specified by the respective boards of aldermen of such city by resolution, ordinance or otherwise." This is mandatory and a duty which the board of aldermen cannot delegate. Martin v. Bennett, 139 Mo.App. 237; Thornburg v. School District, 175 Mo. 12. (3) 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. 28 Cyc., 1575; 1 Dillon on Mun. Corp. (4 Ed.), secs. 89, 509; 38 Cyc., 647; Carthage v. Light Co., 97 Mo.App. 20; Knapp v. Kansas City, 45 Mo.App. 485; Kansas City v. Lorber, 64 Mo.App. 608; Carpenter v. Lathrop, 51 Mo. 492. (4) The Constitution or statutory language, "two-thirds of the legal voters of a city or a county, etc., has been repeatedly construed by the courts in this state and is now firmly established beyond question to mean two-thirds of all those who are entitled to vote and not merely two-thirds of those who did vote at an election. School District v. Oellien, 209 Mo. 464; State ex rel. v. White, 162 Mo. 539; State ex rel. v. Kansas City, 233 Mo. 192; State ex rel. v. Francis, 95 Mo. 51; State ex rel. v. Frances, 144 U.S. 210, 36 L.Ed. 407; State ex rel. v. Brasfield, 67 Mo. 339; State ex rel. v. Harris, 96 Mo. 38; State ex rel. v. Sutterfield, 54 Mo. 391; Dunn v. Lott, 58 S.W. 375; Hedrick v. Culberson, 56 S.W. 616; Harsman v. Bates, 2 Otto, 569. (5) Merchants' stocks of goods are not to be included in this valuation. They are in the nature of a license tax. R. S. 1909, sec. 11618; State ex rel. v. Allen, 116 Mo. 23; Thornburg v. School District, 172 Mo. 31.
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, 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 water works 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:
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 thirty-seven 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 thirty-seven 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 3rd 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...
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