Fahey v. Hackmann

• Decision Date: 07 January 1922
• Citation: 237 S.W. 752,291 Mo. 351
• Parties: MARGARET FAHEY v. GEORGE E. HACKMANN, State Auditor, Appellant
• Court: Missouri Supreme Court

237 S.W. 752

291 Mo. 351

MARGARET FAHEY v. GEORGE E. HACKMANN, State Auditor, Appellant

Supreme Court of Missouri

January 7, 1922

Appeal from Cole Circuit Court. -- Hon. J. G. Slate, Judge.

Reversed and remanded. (with directions).

Jesse W. Barrett, Attorney-General, Henry Davis, Assistant Attorney-General, and Stratton Shartel, Special Assistant Attorney-General, for appellant.

(1) The amendment submitted and voted on at the general election in November, 1920, was constitutionally submitted and ratified. The initiative petitions were sufficient in form and number of qualified signers in eleven congressional districts, and a copy of the proposed amendment was published as required by Article XV of the Constitution. State ex rel. v Winnett, 10 L. R. A. (N. S.) 149; Pearce v People. 53 Colo. 399; Green v. Weller. 32 Miss 650; West v. State, 50 Fla. 154; Worman v. Hogan, 78 Md. 152, 21 L. R. A. 716; Oakland Pav. Co. v. Tompkins, 72 Cal. 5; Taylor v. Commonwealth, 101 Va. 829; Constitutional Prohibitory Amendment, 24 Kan. 700; Hammond v. Clark, 136 Ga. 313. (2) Senate Joint and Concurrent Resolution No. 9, adopted by the second extraordinary session of the Fifty-first General Assembly, proposing an amendment to Sec. 44 of Art. IV of the Constitution, and ratified by the voters August 2, 1921, was duly adopted. Sec. 14, Art. 5, Mo. Constitution; Edwards v. Lesueur, 132 Mo. 410, 429. (3) The proclamation of the Governor convening in second extraordinary session the Fifty-first General Assembly recommending the enactment of legislation authorizing the issuance of not exceeding $ 15,000,000 of bonds of the State, for the payment of bonuses to soldiers and sailors, was ample authority for the passage by said General Assembly of the act approved November 11, 1921. State v. Rawlins, 232 Mo. 544; Ex parte Fleming v. Wenglen, 269 Mo. 366. (4) The act in question does not offend against Sec. 28, Art. IV, of the Constitution, either in the matter of more than one subject embraced therein, or in the matter of the title to the act clearly expressing therein the subject thereof. Coffev v. Carthage, 200 Mo. 616; Nally v. Home Ins. Co., 250 Mo. 452; State ex rel. v. Gordon, 261 Mo. 631; Booth v. Scott, 205 S.W. 633; State ex rel. v. Gordon, 268 Mo. 735. (5) The act is now in full force and effect. Secs. 36, 44b, Art. IV, Mo. Const.; State ex rel. v. Becker, 233 S.W. 641; State ex rel. v. Sullivan, 244 S.W. 327.

Charles & Rutherford for respondent.

(1) The plaintiff has legal capacity to institute and maintain this suit. Verdin v. City of St. Louis, 131 Mo. 27, 74; Steinbrenner v. City of St. Joseph, 226 S.W. 890. (2) Publication of a proposed amendment must be made within the time and in the manner prescribed. 2 Corpus Juris, p. 693; Pearce v. People, 53 Colo, 399; In re House Res. No. 10, 50 Colo. 71; Hammond v. Clark, 136 Ga. 313, 38 L. R. A. (N. S.) 77; McCreary v. Speer, 156 Ky. 783; Russell v. Croy, 164 Mo. 69; State v. Tooker, 15 Mont. 8, 25 L. R. A. 560; State v. Davis, 20 Nev. 220; Hildreth v. Taylor, 117 Ark. 465; State v. Alderson, 49 Mont. 387, Ann. Cas. 1916B. 39; Cudihee v. Phelps, 76 Wash. 314. (3) The alleged amendment to Article XV of the Constitution was not constitutionally submitted to nor ratified by the electors at the general election held November 2, 1920, because the proposed amendment was not published in a newspaper in Pettis County for four consecutive weeks next preceding November 2, 1920; but was published in said county for three weeks only next preceding said day. Russell v. Croy, 164 Mo. 89; State v. Jones, 168 Mo. 401; Gabbert v. Ry. Co., 171 Mo. 84, 97; Durfee v. Harper, 22 Mont. 354; Koehler v. Hill, 60 Iowa 543; McMillen v. Blattner, 67 Iowa 287; Bailey v. Brookhart, 113 Iowa 250; McCreary, Governor, v. Speer, 156 Ky. 783; State ex rel. v. Tooker, 25 L. R. A. (Mont.) 561; Hunt v. State, 22 Tex.App. 397; Collier v. Frierson, 24 Ala. 109; Mo. Const., Article XV. (4) The proposed amendment to the Constitution authorizing the issuance of $ 15,000,000 Soldier Bonus Bonds, is invalid for that it was submitted to the electorate at a special instead of a general election. Sec. 2, Art. XV, Mo. Const. (5) This act under consideration is void because it attempts to authorize the contracting of an indebtedness in excess of the limitations prescribed by the Constitution and for a purpose prohibited thereby. Sec. 44, Art. IV, Mo. Const. (6) This act in question is violative of Section 28, Article IV. of the Constitution for that the subject thereof is not clearly expressed in the title. State ex rel. v. Gordon, 268 Mo. 730; State ex rel. v. Gordon, 261 Mo. 640; State v. Horton, 255 Mo. 180. (7) This act in question contravenes Section 28, Article IV, of the Constitution in that Section 12 thereof declares certain acts to constitute a misdemeanor, thus making two different, separate and unrelated subjects. Gabbert v. Ry. Co., 171, Mo. 105. (8) And in that it provides for the issuance of bonds and also for the administration of the distribution of bonuses to soldiers and sailors. (9) Should the court be of the opinion that both of the proposed amendments have been constitutionally submitted and ratified, and that the act in question, approved November 11, 1921, was validly enacted, nevertheless the resolution adopted by the Board of Fund Commissioners on November 22, 1921, authorizing the issuance of $ 15,000,000 of bonds, is void and of no effect, and any bonds issued in pursuance thereof will be void, for that the said act was not then a law and will not become a law until February 16, 1922, and then only if sufficient referendum petitions have not been filed before that date to refer it. State ex rel. v. Becker, 233 S.W. 641; State ex rel. v. Sullivan, 224 S.W. 327.

WOODSON, J. James T. Blair, C. J., and Graves, Elder and Walker, JJ., concur; David E. Blair, J., concurs in a separate opinion; Higbee, J., dissents in opinion filed.

OPINION

In Banc.

WOODSON, J.

-- This is a bill in equity instituted in the Circuit Court of Cole County by the plaintiff against the defendant to enjoin him from issuing and selling the $ 15,000,000 worth of bonds of the State of Missouri, to be known and designated as "STATE OF MISSOURI WORLD WAR SOLDIER BONUS BONDS," authorized by Section 44b of Article IV of the Constitution, as adopted in the year 1921, and an Act of the Legislature of Missouri approved November 11, 1921.

A demurrer was filed to the bill in the circuit court, which was by the court overruled, and the defendant declining to plead further a decree enjoining him from issuing the bonds was duly rendered and he duly appealed the cause to this court.

Counsel for the respondent says in his brief that the facts of the case are fully, truthfully and completely stated by counsel for the appellant in their statement of the case; consequently we shall adopt that statement as the statement of the court, which is as follows:

"By her suit in equity instituted in the Circuit Court of Cole County, Missouri, plaintiff, Margaret Fahey, a resident of the city of St. Louis, Missouri, and a taxpayer in said city and the owner of real estate in and situated therein assessed and legally assessable for state and county taxes, suing for herself and all others similarly situated who might desire to become parties plaintiff, seeks to restrain the defendant, George F. Hackmann, in his official capacity as State Auditor of the State of Missouri, from providing and lodging with the State Treasurer, ready for execution, certain state bonds, alleged to have been authorized by an act of the second extraordinary session of the Fifty-first General Assembly of the State of Missouri, approved November 11, 1921, and also seeks to restrain said defendant from registering the said bonds as therein provided, and from certifying to the several county clerks a rate of taxation to be levied upon the taxable property in their respective counties to pay the principal and interest of said bonds when due.

"Defendant demurred to plaintiff's bill on the grounds, that (a) plaintiff was without legal capacity to sue; (b) that the court was without jurisdiction to hear and determine the alleged cause of action; (c) that the bill did not state facts sufficient to constitute a cause of action, and (d) did not state facts warranting injunctive relief. The demurrer was overruled by the trial court, and defendant declining to plead further, judgment was rendered against him. Whereupon he prayed and was granted an appeal to the Supreme Court of Missouri. The demurrer interposed admits all the well pleaded facts set out in plaintiff's bill, of most of which the court will take judicial knowledge. From the bill the following facts are gathered:

"On July 2, 1920, more than four months before the second day of November, 1920, that day being the day appointed by law for holding a general election in the State there was filed in the office of the Secretary of State initiative petitions in the form and verified as provided by Section 57, Article IV, of the Constitution, and Chapter 47, Revised Statutes 1919. To each of these petitions there was attached a true printed copy of the proposed amendment to the Constitution repealing Article XV thereof and adopting a new article in lieu thereof. These several petitions were signed by more than five per centum of the legal voters of each of eleven Congressional districts in the State based upon the total vote cast therein for justice of the Supreme Court at the last preceding general election. At the time of filing the said initiative petitions the Secretary of State, in the presence of the then Governor and the person offering the said petitions, detached the sheets containing the signatures and affidavits to said...