Gaston v. Lamkin

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

21 S.W. 1100

115 Mo. 20

Gaston et al., Appellants, v. Lamkin et al

Supreme Court of Missouri

March 20, 1893

Appeal from Greene Circuit Court. -- Hon. W. D. Hubbard, Judge.

Reversed and remanded.

George Hubbard with M. E. Benton, E. C. Crow and W. H. Curry for appellants.

(1) The special tax, in excess of the limit of fifty cents on the $ 100 valuation for county purposes per year, is necessarily void, in the absence of any single empowering or jurisdictional fact under the law fixing the conditions of its levy and collection. Every such empowering or jurisdictional fact must affirmatively appear in detail on the face of the record in all such special statutory proceedings as this to acquire money or property for public use. Cooley on Taxation [2 Ed.] p. 339; Constitution, art 10, secs. 11, 12; Revised Statutes, 1889, secs. 852-6; Railroad v. Apperson, 97 Mo. 300; Railroad v Young, 96 Mo. 39, and cases cited; Colville v Judy, 73 Mo. 651; Warrensburg v. Miller, 77 Mo. 56; State ex rel. v. Scott, 96 Mo. 72. (2) Nunc pro tunc entries or amendments could not cure such omissions. Anderson v. Pemberton, 89 Mo. 61; Blize v. Castilo, 8 Mo.App. 322; Road in Reserve Township, 2 Grant's Pennsylvania Cases. 203; Stovall v. Emerson, 20 Mo.App. 322; Haggard v. Railroad, 63 Mo. 302. (3) Oral or extraneous evidence cannot be admitted to supply defects in the record of facts and so "eke out" a show of jurisdiction. Cunningham v. Railroad, 61 Mo. 33; Young v. Thompson, 14 Ill. 380; Nichols v. Bridgeport, 23 Conn. 189; Kellogg v. McLaughlin, 8 Ohio 116; Eaton v. St. Charles Co., 76 Mo. 492. Such holdings have not been upon the ground that the statute required the empowering facts to be recorded, but upon common law principle. Ellis v. Railroad, 51 Mo. 200; Whitley v. Platte Co., 73 Mo. 30. (4) The requirements of the law as to what is known as the "Australian system" were wholly disregarded and omitted as to the form and manner of issuing, preparing, indorsing and depositing ballots and conducting the election in question, for which reason it must be held void. (5) Whenever one general statute invokes for a new use or purpose the general rule in relation to another subject for uniformity in the same state, it must be taken to mean the rule as existing when its use is required, unless the contrary be expressed. And the reference in section 855 of our statute to the general election law must mean the law as to that subject in force when the special election is to be held. Kugler's Appeal, 55 Pa. St. 123; Jones v. Dexter, 8 Fla. 276; Harris v. White, 81 N.Y. 532; McKnight v. Crinnion, 22 Mo. 559; Attorney General v. Saggers, 1 Price Eng. Exch. 182, 193-4.

Galen Spencer and Samuel McReynolds for respondents.

(1) Every prerequisite and step required by the statute leading up to and including the order for the special election was observed by voters and the county court in their proceedings. Revised Statutes, 1889, sec. 852. (2) The notice for the special election contained all the requirements exacted by the statutes and was published as directed by law. Revised Statutes, 1889, sec. 853. As to proof of publication, etc., "It is the fact of publication, rather than the method of proving it, which is essential, and therefore it was competent to prove the fact by oral testimony of a witness." Nevada to use v. Morris, 43 Mo.App. 586; Williams v. Cammick, 61 American Decisions, 515 and notes. (3) In the case at bar the giving of the notice is proven by the introduction of the files of the newspapers containing the same, as well as by oral testimony, but it is objected that the form of notice is improper. The objection is not well taken. McCrary on Elections [3 Ed.] secs. 141, 142, 143, 144; State ex rel. v. Commissioners, 39 Kan. 293. (4) It was proper for the clerk to sign notice by order of county court. Lawson v. Railroad, 30 Wis. 597; Dishon v. Smith, 10 Iowa 212; Jordan v. Haynes, 36 Iowa 9. (5) The Australian system was not applicable to the special courthouse election. Section 855 of the Revised Statutes of 1889 directs how the elections for this special tax shall be conducted. This section was enacted in 1879. The Australian system was not in the legislative mind at that time, it being first enacted in 1889. The general election law of 1879, to-wit, chapter 60, article 1 of the Revised Statutes of 1889 is still in force for all elections not provided for by the Australian system, and was the election law applicable to the special election in question. "An act adopting by reference the whole or a portion of another statute, means the law as existing at the time of the adoption, and does not adopt any subsequent addition thereto or modification thereof." Endlich on Interpretation of Statutes, sec. 85, pp. 114-115; Presumption against needless change of law, same volume, sec. 113-115; United States v. Paul, 6 Pet. U.S. 141; Kindall v. United States, 12 Pet. 524; Knapp v. Brooklyn, 97 N.Y. 520; In re Main Street, 98 N.Y. 454; Darmstaeter v. Maloney, 45 Mich. 621; Sutherland on Statutory Construction, sec. 257. "All laws must be executed according to the sense and meaning which they imported at the time of their passage." Com. v. Railroad, 27 Pa. St. 339.

Brace J. Barclay, J., absent.

OPINION

In Banc.

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 twenty-ninth 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, chapter 21, Revised Statutes, 1889, in pursuance of an election held on the fourteenth of July, 1891, upon an order of the county court therefor made on the twenty-third of June, 1891, upon the petition of more than one hundred 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 23, 1891, Thirteenth Day of May Term.

"Now, at this day comes 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 fourteenth 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 the 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 $ 20,000 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 on each $ 100 valuation, for three years, in excess of the revenue provided for and limited by law for any one year, to pay for...