Fahey v. Hackmann, No. 23348.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWoodson
Citation237 S.W. 752,291 Mo. 351
PartiesFAHEY v. HACKMANN, State Auditor.
Docket NumberNo. 23348.
Decision Date07 January 1922
237 S.W. 752
291 Mo. 351
FAHEY
v.
HACKMANN, State Auditor.
No. 23348.
Supreme Court of Missouri, in Banc.
January 7, 1922.

[237 S.W. 753]

Appeal from Circuit Court, Cole County; J. G. Slate, Judge.

Suit by Margaret Fahey against George E. Heckmann, State Auditor. From a judgment for plaintiff on demurrer, defendant appeals. Reversed and remanded, with directions.

This is a bill in equity instituted in the circuit court of Cole county by the plaintiff against the defendant to enjoin him from is" suing 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 4 of the Constitution, as adopted in the year 1921 (see Laws 1921, p. 695), 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 Da as follows:

By her suit in equity instituted in the circuit court of Cole county, Mo., plaintiff, Margaret Fahey, a resident of the city of St. Louis, Mo., 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 E. Heckmann, 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 wellpleaded 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 2d 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 4, of the Constitution and chapter 47 of the Revised Statutes of Missouri 1919. To each of these petitions there was attached a true printed copy of the proposed amendment to the Constitution (see Laws 1921, p. 711), repealing article 15 thereof and adopting a new article in lieu thereof. These several petitions were signed by more than 5 per centum of the legal voters of each of 11 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,

[237 S.W. 754]

and the person offering the said petitions, detached the sheets containing the signatures and affidavits to said petitions, and caused them all to be attached to one or more of the printed copies of the proposed amendment, and, delivered the detached copies to the person offering them for filing.

For the purpose of this suit the only change in article 15 made by the proposed amendment that need be here noticed was that proposed amendments either by the General Assembly or initiative petition "shall be submitted to the electors of the state for their approval or rejection, by official ballot title as may be provided by law * * * at the next general election, or at a special election called for the Governor in his discretion prior to such general election, at which he may submit any one or more of such proposed amendments." The Secretary of State determined on an investigation that the said petitions were sufficient in form, and signed by a proper number of voters in 11 congressional districts. Thereafter, and within the time prescribed by law, the Secretary of State transmitted to the Attorney General a copy of said proposed amendment, and within 10 days thereafter the Attorney General provided and returned to the Secretary of State an official ballot title, as follows:

"Proposed by Initiative Petition Constitutional Amendment.

"Proposed amendment repealing article 15, Missouri Constitution, enacting a new article in lieu thereof, providing mode of revising and amending Constitution and for calling constitutional convention."

The Secretary of State, thereafter, at the time he was required by law so to do, certified the proposed amendment for publication prior to the general election to be held on November 2, 1920, and the same, as proposed, was published in a newspaper in each county in the state for four consecutive weeks next preceding November 2, 1920, save in Pettis county, when it was only published by the three weeks next preceding the election, to wit, on October 15th, 17th, 22d, 29th, and 31st. At the time provided by law for the Secretary of State to furnish to the several county clerks the names of the candidates for state and county offices, he furnished to each of said clerks a certified copy of the official ballot title and number of said proposed amendment, and the same were printed upon the ballots for said election, and a proper number thereof at a proper time furnished to the electors in each and every voting precinct in the state. Within 30 days after the election held on November 2, 1920, the Secretary of State received from the several county clerks abstracts of the returns of said election, and did, in the presence of the Governor, canvass the votes cast for and against the ratification of said proposed amendment, and as a result of said canvass it was ascertained that they had been cast for and against the ratification thereof a total of 712,352 votes, of which number 394,437 were cast for the ratification of the said proposed amendment, and 317,815 votes were cast against its ratification. At said election there were cast in the state, for President a total of 1,332,800 votes, of which number there were cast in Pettis county a total of 15,355 votes. For and against the ratification of said proposed amendment there were cast at said election in Pettis county 9,869 votes, of which number there were cast for the ratification thereof 6,003 votes, and 3,856 votes were cast against it.

On November 29, 1923, the then Governor of the state issued his proclamation as provided by section 6754, Revised Statutes of Missouri for 1909, declaring the said proposed amendment in full force and effect and a part of the Constitution of the state from and after the date last aforesaid. At 12 o'clock noon, on Wednesday the 5th day of January, 1921, the Fifty-First General Assembly of the state convened in regular biennial session, in the capitol building in the city of Jefferson City in Cole county, and remained in continuous session until 12 o'clock noon on March 21, 1921, at which time it adjourned sine die.

On the _____ day of January, 1921, the House of Representatives adopted rules for its government and procedure, among which was rule No. 87, requiring all joint and concurrent resolutions designed to submit to the electorate of the state for ratification or rejection proposed amendments to the Constitution of the state, to be read on three separate days and reported upon by a committee, and otherwise proceeded upon in like manner as a bill. By rule No. 89, adopted by said House, a standing rule might be dispensed with with the concurrence of a majority of the members present.

On January ____, 1921, the Senate adopted rules for its government and procedure, among which were rules numbered 65 and 66. By rule No. 65 it was required that all resolutions proposing amendments to the Constitution should be treated in all respects, in the introduction and form of proceedings on them in a similar manner to bills; and by rule No. 66 a standing rule of the Senate might be suspended, by a majority vote of the Senators-elect or by a vote of two-thirds of the Senators present. On March 14, 1921, there was introduced into the Senate by Senator Howard Gray, Senate Joint and Concurrent Resolution No. 9, which was then and there read the first time. Thereafter, on the day aforesaid, on motion made, seconded, and carried, the rules of the Senate were suspended, and the resolution read a third time and placed upon its passage. All of the Senators present, they being more than a majority of the Senators-elect, voted for its adoption, and their names and how they voted were entered upon the Senate Journal. Thereupon, on the day last named, the title to the resolution was agreed to by the Senate, and a second motion to reconsider the vote by which the...

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20 practice notes
  • State ex Inf. Attorney-General v. Curtis, No. 28264.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...of the public peace, health or safety. Sec. 36, Art. 4, Constitution; State ex rel. Westhues v. Sullivan, 283 Mo. 546; Fahey v. Hackmann, 291 Mo. 351. (4) The act violates Section 28 of Article 4 of the Constitution, in that it contains more than one subject and the provisions of the act ar......
  • State ex rel. v. City of St. Louis, No. 28373.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...clause in ordinance 36051 were held invalid sufficient time has elapsed since its passage that it is now in force. Fahey v. Hackman, 291 Mo. 351; Ex parte Corvey, 287 S.W. 879. (c) Proceedings of the Board of Public Service are valid even if begun before the effective date of the ordinance.......
  • Opinion of the Justices, In re, No. 113
    • United States
    • Supreme Court of Alabama
    • July 21, 1950
    ...also in harmony with our own authorities last above cited. 'The cases of Manos v. State, 98 Tex.Cr.R. 87, 263 S.W. 310; Fahey v. Hackmann, 291 Mo. 351, 237 S.W. 752; State ex rel. State Building Comm. v. Smith, 335 Mo. 840, 74 S.W.2d 27, and State [ex rel. Hall] v. Cline, 118 Neb. 150, 224 ......
  • State ex rel. Board of Fund Com'rs v. Holman, No. 45678
    • United States
    • United States State Supreme Court of Missouri
    • December 10, 1956
    ...particularly where the departure affected Page 495 only a very trivial number of eligible voters.' Respondent refers to Fahey v. Hackmann, 291 Mo. 351, 237 S.W. 752, 760 (improper publication in one county) and State ex rel. State Building Commission v. Smith, 335 Mo. 840, 74 S.W.2d 27, 29(......
  • Request a trial to view additional results
20 cases
  • State ex Inf. Attorney-General v. Curtis, No. 28264.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...of the public peace, health or safety. Sec. 36, Art. 4, Constitution; State ex rel. Westhues v. Sullivan, 283 Mo. 546; Fahey v. Hackmann, 291 Mo. 351. (4) The act violates Section 28 of Article 4 of the Constitution, in that it contains more than one subject and the provisions of the act ar......
  • State ex rel. v. City of St. Louis, No. 28373.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...clause in ordinance 36051 were held invalid sufficient time has elapsed since its passage that it is now in force. Fahey v. Hackman, 291 Mo. 351; Ex parte Corvey, 287 S.W. 879. (c) Proceedings of the Board of Public Service are valid even if begun before the effective date of the ordinance.......
  • Opinion of the Justices, In re, No. 113
    • United States
    • Supreme Court of Alabama
    • July 21, 1950
    ...also in harmony with our own authorities last above cited. 'The cases of Manos v. State, 98 Tex.Cr.R. 87, 263 S.W. 310; Fahey v. Hackmann, 291 Mo. 351, 237 S.W. 752; State ex rel. State Building Comm. v. Smith, 335 Mo. 840, 74 S.W.2d 27, and State [ex rel. Hall] v. Cline, 118 Neb. 150, 224 ......
  • State ex rel. Board of Fund Com'rs v. Holman, No. 45678
    • United States
    • United States State Supreme Court of Missouri
    • December 10, 1956
    ...particularly where the departure affected Page 495 only a very trivial number of eligible voters.' Respondent refers to Fahey v. Hackmann, 291 Mo. 351, 237 S.W. 752, 760 (improper publication in one county) and State ex rel. State Building Commission v. Smith, 335 Mo. 840, 74 S.W.2d 27, 29(......
  • Request a trial to view additional results

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