Kellams v. Compton
| Decision Date | 08 December 1947 |
| Docket Number | 40293 |
| Citation | 206 S.W.2d 498 |
| Parties | Walter W. Kellams, David H. Bibbens, John McDonald, M. S. Richardson, I. A. Dreher, P. L. Morris, Mrs. H. Lamport, Fred E. Werner, Appellants, v. W. D. Compton, D. B. Burns, John A. Rhodes, Robert Black, S. Clay Davidson, Joe E. Rock, Center School District No. 58, Jackson County, Missouri, Alvin D. Hatten, Collector of Revenue, Jackson County, Missouri, Respondents |
| Court | Missouri Supreme Court |
From the Circuit Court of Jackson County, Civil Appeal, Judge James W. Broaddus
Affirmed
In this suit in equity taxpayers and patrons of Center School District No. 58 of Jackson County seek to restrain the Board of Directors of the district from expending the proceeds of a $378,000 bond issue, dated September 1, 1946. They also ask to have the bonds declared void, the County Collector enjoined from levying or collecting any taxes by reason of the bonds and to require the surrender and cancellation of the bonds and the repayment of the value of the bonds to the present holders and purchasers. The theory of the appellants' action is that the bonds are invalid because (1) upon the fact of the election returns and canvass by the Board of Directors the bond issue failed to obtain the required two-thirds majority of the total votes cast at the bond election, and (2) the proposition submitted in the election was illegal for "doubleness" in that it combined several unrelated projects. Upon the filing of a motion to dismiss together with supporting affidavits, the trial court dismissed the appellants' petition and entered judgment for the defendants.
as to the first point, the appellants' position is that after canvassing the returns the board certified and declared that 1739 ballots had been case in the election, 1147 for the loan, and therefore the bond issue did not receive the requisite two-thirds vote, 1160 votes. Mo. R. S. A., Sec 10328; Const. Mo., Art. 6, Sec. 26(b). The certificate and declaration is as follows:
"Total votes case: 1739 Ballots
'For the Loan': 1147 Ballots
Void Ballots: 23" The appellants point to the rule that courts may not recount the votes in a bond election, the return of the judges and clerks as to the result being final (State ex rel. City of Clarence v. Drain, 335 Mo 741, 73 S.W. 2d 804) and insist, the judges and clerks having certified that the total number of votes case was 1739, only 1147 votes in favor of the proposition, that upon the face of the returns the bonds did not receive the necessary two-thirds majority vote. It is argued, the board having certified the total vote to be 1739, that it could not subsequently ignore or cast out the twenty-three "void votes" and declare the bonds to have been authorized by the election. It is further argued, under the allegations of the petition, that the twenty-three votes were case by qualified electors, that their intention was determinable from the ballots and therefore the board was in duty bound to count the twenty-three ballots. Yowell v. Mace, 221 Mo.App 85, 290 S.W. 96.
Obviously the latter suggestion is contrary to the appellants' contention that the return is conclusive. If it is conclusive the appellants could not attack it in this proceeding by alleging at the twenty-three votes were cast by qualified voters and that their intentions were discernible from an inspection of the ballots which were not a part of the petition or of this record. State ex rel. Jackson County v. Waltner, 340 Mo. 137, 145, 100 S.W. 2d 272, 276. As a matter of fact, as we view it, the board did not certify that "1739 votes were cast on the proposition."$ The board certified, as was the fact, "Total votes cast 1739 Ballots; 'For the Loan': 1147 Ballots' 'Against the Loan': 569 Ballots; Void Ballots: 23." In other words the board plainly certified that 1716 ballots were "cast on the proposition," 1147 "for the loan" and 569 "against the loan." That was the proposition submitted to the voters. On the fact of it the board did not certify that the twenty-three voted either for or against the proposition even though it also certified as was the fact that a total of 1739 votes were cast, counting the twenty-three.
In any event it has been definitively determined that "two-thirds of the qualified electors * * * voting thereon," (Const. Mo., Art. 6, Sec. 26(b)) and "two-thirds of the votes cast on the proposition" (Mo. R. S. A., Sec. 10328) means "two-thirds of those who actually vote for or against the given proposition, whether such two-thirds be two-thirds or not of all the voters taking part in the election otherwise * * * ." State ex rel. Kansas City v. Orear, 277 Mo. 303, 312, 210 S.W. 392, 394. "Votes cast on the proposition" and "voting thereon" are to be construed in their ordinary and usual sense and they mean "'expressing the will, mind or preference; casting, or giving a vote.'" They do not include votes or ballots that do not cast a vote on the proposition. Illegal or void votes may not be counted, either for or against the proposition submitted, even though they may have been received, placed in the ballot box and constitute some of the total number of ballots. Franklin v. Hume Consolidated School Dist., 271 Mo. 585, 197 S.W. 345; State ex rel. Consolidated School Dist. v. Smith, 341 Mo. 807, 109 S.W. 2d 857.
It is insisted that the present case is distinguishable from the Smith case in that here, unlike in the Smith case, the judges of the election did tabulate the total vote cast and did consider the twenty-three votes, thereby precluding an inquiry by the courts into the total. In the Smith case the certification was "That for the Bonds had 394 votes; That Against, had 197; Votes Void 6." If the six void votes were to be considered in the tabulations on the proposition the bonds failed to receive the necessary two-thirds majority vote. There, as in this case, there was no way of knowing why the six votes were void. It was presumed that they were illegal and could not therefore be considered. It was held that "two-thirds majority" meant "of the legal votes cast showing a preference either in the affirmative or negative for the proposition voted on." In this respect the case is certainly controlling here as there were but 1716 votes showing a preference on the proposition, 1147 "for the loan" and 569 "against the loan." Consequently the bond issue did receive the necessary statutory and constitutional two-thirds majority. State ex rel. Consolidated School Dist. v. Smith, supra.
The argument that the bonds are void because the proposition submitted to the voters was "double," contained several projects and therefore constituted a fraud upon the voters is based upon the official notice of the election:
"To authorize the Board of Directors of Center School District No. 58, of Jackson County, Missouri, to incur indebtedness of said District in the amount of Three Hundred Seventy-eight Thousand...
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