Gaston v. Lamkin

• Decision Date: 20 March 1893
• Citation: 115 Mo. 20,21 S.W. 1100
• Parties: GASTON et al. v. LAMKIN et al.
• Court: Missouri Supreme Court

21 S.W. 1100

115 Mo. 20

GASTON et al. v. LAMKIN et al.

Supreme Court of Missouri.

March 20, 1893.

COUNTIES — COURTHOUSE — ELECTION TO AUTHORIZE INDEBTEDNESS.

1. Under Rev. St. 1889, § 852, which provides that whenever it shall become necessary for any county to incur any indebtedness for building a courthouse or jail in excess of the total income and revenue of the county provided by law, it shall be lawful for voters, not less than 100, to petition the county court reciting this fact, and requesting it to call an election to authorize the incurring of said debt and the levying of taxes. Held, that the jurisdiction of the county court to order an election is not predicated on its conviction of the necessity of incurring an indebtedness, but upon the fact that more than 100 qualified voters and taxpayers of the county, convinced of such necessity, by a proper petition filed in the court, ask that the question be submitted to the qualified voters of the county; and hence the failure of the court to recite, in its order for holding the election, that the incurring of such indebtedness is necessary, is not a fatal defect, going to the jurisdiction of the court.

2. The fact that the records of the county court do not show a finding by that court that the 20 days' notice of election required by Rev. St. 1889, § 853, had been given, does not affect the validity of the election, since oral evidence is admissible to prove the giving of the notice. State v. Dugan, (Mo. Sup.) 19 S. W. Rep. 195, followed.

3. Section 855, first adopted in 1879, which requires the election to authorize the indebtedness to be conducted "as elections for state and county officers," does not mean that such election must be held in conformity with the general election law of the time of the adoption of the section, but with that at the time the election is held; and such an election held after the adoption of the Australian ballot law, (Act April 4, 1891,) conducted in total disregard of its requirements, is void, though the election may have been held in conformity with the general election law as it stood in 1879.

In banc. Appeal from circuit court, Greene county; W. D. Hubbard, Judge.

Action by H. G. Gaston and others against A. A. Lamkin and others, judges and clerk of the county court, to set aside an order of the court levying special taxes, and to restrain their collection. From a judgment in defendants' favor, plaintiffs appeal. Reversed.

Geo. Hubbert, M. E. Benton, Ed. C. Crow, and W. H. Curry, for appellants. Galen Spencer and Saml. McReynolds, for respondents.

BRACE, J.

This is an action against the judges and clerk of the county court, and the collector of the revenue, of Jasper county, in which the plaintiffs seek to set aside an order of said court levying special taxes, made at the May term of said court, on the 29th day of July, 1891, for the purpose of creating a fund to erect two courthouses in said county, and to restrain the collection of such taxes. The levy was ordered under the authority of article 3, c. 21, Rev. St. 1889, in pursuance of an election held on the 14th of July, 1891, upon an order of the county court therefor, made on the 23d of June, 1891, upon the petition of more than 100 qualified voters and taxpayers of said county, setting forth the amount of said fund asked to be raised, the objects and purposes for which, and the mode by which it was to be raised, as required by section 852 of said article. The order for the election was as follows: "Tuesday, June 23rd, 1891, 13th day of May term. Now, at this day come A. F. Lewis, John C. Bailey, R. G. Sloan, S. B. Griswold, and J. P. Newell et al., and present their petition signed by more than one hundred legal, qualified voters and taxpayers of Jasper county, setting forth that it has become necessary to incur an indebtedness for the purpose of building courthouses, in excess of the revenue of Jasper county provided for any one year, as limited by law; and that Carthage, the county seat of Jasper county, has voted $50,000 to be used, in conjunction with Jasper county, for the building of a courthouse, to be used jointly as a courthouse and city hall, said city to have four rooms in such building, the location of the same to be designated by the county court, to be used for city offices. And that the citizens of the city of Joplin, of said Jasper county, have agreed to furnish the county a site for the building of a courthouse, and make the county a good and valid title thereto, provided the county will build thereon a courthouse with necessary offices for the terms of the circuit court, holden at Joplin; and praying that an election be held for the purpose of submitting to the qualified voters of Jasper county, Missouri, a proposition to incur an indebtedness of seventy thousand dollars, ($70,000,) for the purpose of building such courthouses; fifty thousand dollars ($50,000) of which is to be used, with fifty thousand dollars ($50,000) furnished by the said city of Carthage, in building a courthouse in said city of Carthage, the county seat of said county, and twenty thousand dollars ($20,000) to be used in building a courthouse in the city of Joplin, upon said city furnishing a site upon which to build the same, satisfactory to the county court, and making to the county a good and sufficient title thereto, said indebtedness to be paid by the direct levy of taxes for that purpose in three equal installments during three years. And it appearing to the satisfaction of the court that said petition is signed by more than one hundred qualified voters and taxpayers of Jasper county, and that said petition fully sets forth the object and purpose for which said election is to be held; and that the indebtedness sought to be incurred is to be paid by the direct levy of taxes in three years; and the matter being by the court seen, heard, and fully understood, it is therefore ordered by the court that an election be held at the several voting precincts in Jasper county on Tuesday, the 14th day of July, 1891, for the purpose of voting on the proposition of incurring an indebtedness in said county of seventy thousand dollars ($70,000) for the building of courthouses, fifty thousand dollars ($50,000) of which is to be used, with fifty thousand dollars ($50,000) furnished by the city of Carthage, for the building of a courthouse and city hall jointly by said county and city of Carthage; the said city to have four rooms in said building, the location of the same to be designated by the county court, to be used for city offices; and the remaining twenty thousand dollars of said amount to be used in building a courthouse at Joplin, with necessary offices for the terms of the circuit court holden at said city, on a site furnished by the citizens of said city of Joplin, and a good and sufficient title to the same. Also to increase the tax levy of twenty-five cents (25c) on each one hundred dollars valuation, for three years, in excess of the revenue provided for and limited by law for any one year, to pay for the same. And that the form of the ballots used at said election be as follows, viz.: `In favor of an indebtedness of $70,000 for the purpose of building two courthouses, and of an increase, of the tax levy of twenty-five cents on the one hundred dollars valuation for three years, to pay for the same; Yes;' and `In favor of an indebtedness of $70,000 for the purpose of building two courthouses, and of an increase of the tax levy of twenty-five cents on the one hundred dollars valuation for three years to pay for the same; No.' And it is further ordered that the clerk of this court give twenty days' notice of said election, by publication in the Carthage Banner, at least twenty days prior to the said 14th day of July, A. D. 1891."

On the same day the court made a further order appointing judges of said special election to be held on the 14th of July, 1891, for each of the several voting precincts in the several townships of said county, and adjourned until the 21st day of July, 1891. Due notice was given of the election in pursuance of the order, and as required by section 853 of said statute. The election was held in the several precincts on the day named, the vote returned to the county clerk, and by her, and two justices of the peace associated with her for that purpose, counted, and the result certified to the county court, as required by section 855 of said statute, on the 17th of July, 1891. At the next sitting of the county court thereafter, to wit, on the 21st of July, 1891, the said court took up for consideration the returns of said election so certified to them, and by entry of record found "that there were cast in favor of the proposition 6,833 votes, and that there were cast against the proposition 3,095 votes, leaving a lawful two-thirds majority of the votes cast in favor of said proposition. Wherefore said proposition is by the court declared carried." And among other orders made in regard to the matter, which need not here be set out, the court on the same day made the following: "Whereas, the legally qualified voters of Jasper county, Missouri, in pursuance of an order of the court calling for a special election, in compliance with a petition of not less than one hundred taxpaying citizens of said Jasper county, did on Tuesday, the 14th day of July, 1891, by a two-thirds majority, vote, elect, and decide to create an indebtedness of seventy thousand dollars for the purpose of building two courthouses, and for an increase of the tax levy of twenty-five cents on the one hundred dollars valuation, for three years, to pay the same; said tax to be levied upon all the taxable property, real, personal, merchandise, railroad and telegraph companies, and all licenses made taxable by law, within the limits of said Jasper county, and it appearing to the satisfaction of the court that there exists a necessity for the assessment, levy, and collection of a...