Southworth v. Mayor, Councilmen & Citizens of Glasgow
| Decision Date | 31 December 1910 |
| Citation | 132 S.W. 1168,232 Mo. 108 |
| Parties | A. B. SOUTHWORTH et al., Appellants, v. MAYOR, COUNCILMEN AND CITIZENS OF GLASGOW et al |
| Court | Missouri Supreme Court |
Appeal from Howard Circuit Court. -- Hon. A. H. Waller, Judge.
Affirmed.
J. H Denny and E. W. Henry for appellants.
(1) Section 6276, R. S. 1899, provides that not less than fifteen days' previous notice shall be given by publication in some newspaper published in such city or town. There was only one publication of notice of the election in this case, which was published in a weekly paper. One publication of such notice was not sufficient. Stine v. Wilkson, 10 Mo 66. This decision has never been overruled or criticised. It is cited by the Supreme Court in Patterson v. Fagan, 38 Mo. 80, and in German Bank v. Stumpf, 73 Mo. 315. It is the general understanding and practice in the country where the statute requires fifteen days' previous notice by publication of an election to issue municipal bonds, that the notice -- if it be published in a weekly paper -- shall be inserted not less than fifteen days before the election and be continued in every issue up to the time of the election. This is the construction of the statute in question, and other similar statutes, by this court. State ex rel. v. Allen, 178 Mo. 555; Drainage District v. Campbell, 154 Mo. 151. Where a statute is construed by a judicial opinion, published and generally known, and afterwards is re-enacted, the judicial construction is embodied in the re-enactment. Northcutt v. Eager, 132 Mo. 265; Handlin v. Morgan County, 57 Mo. 114; Sanders v. Anchor Line, 97 Mo. 26; State ex rel. v. Withrow, 133 Mo. 501; Camp v. Railroad, 94 Mo.App. 272; Sedalia v. Gold, 91 Mo.App. 32. When in 1897 the Legislature enacted Sec. 6276, R. S. 1899, directing how notice of election to issue municipal bonds shall be given, and incorporated therein the words "not less than fifteen days' previous notice shall be given by publication in some newspaper published in such city or town," it intended to express the meaning previously put upon them. It has been uniformly and consistently ruled that where judicial construction has put a certain meaning on the words of a statute and then the Legislature in a subsequent act in pari materia uses the same words, the presumption arises that the Legislature intended to express the meaning previously put upon them. State v. Hamey, 168 Mo. 167. The statute requiring a notice of special election to be given is mandatory, and if such requirement is not strictly followed, the election is void. State ex rel. v. Smith, 129 Mo.App. 49. (2) Section 3 of article 8 of the Missouri Constitution prohibits a recount of the ballots except in cases of contested elections, and section 9 of the same article provides that such contests shall be in courts of law. Constitution, art. 8, secs. 3 and 9; State ex rel. v. Francis, 88 Mo. 557; State ex rel. v. Board of Schools, 112 Mo. 213. The judges and clerks of election, and the canvassers, were designed to act independently of each other, and the latter were not intrusted with the power of revising and correcting the mistakes of the former. In every election a tribunal has been selected to revise the actions of all the officers concerned and to correct any mistakes or injustice which have been committed, and the canvassers do not constitute that tribunal. Mayo v. Freeland, 10 Mo. 629; Windes v. Nelson, 159 Mo. 76. In this case the mayor and city councilmen, after the votes had been counted, where there was no contest, and where no voter or citizen could be heard, opened the ballots and recounted them, and certified and cast up the result of the election on the count made by them. The mayor and councilmen were under no oath as were the judges and clerks of election, and in their unauthorized action were not amenable to any law, civil or criminal. The admission of ballots in evidence depends upon the primary proof that they have remained in the same condition in which they were cast; that they have remained in the custody of the officer charged with their keeping and that no opportunity has been afforded whereby they might have been changed or tampered with. Windes v. Nelson, 159 Mo. 68; McCrary on Election (2 Ed.), sec. 277; Ex parte Arnold, 128 Mo. 288; Coglan v. Beard, 67 Cal. 303; Ex parte Brown, 97 Cal. 83. (3) As to the proposed $ 4000 sewer bonds, it is apparent from the testimony that the proposed sewers will be either private or district sewers and not public sewers. No action had been taken or ordinance enacted to locate the proposed sewers. The mayor says they were meant for sanitary sewers to carry off slops, toilets, baths and such as that. That it would not be possible on $ 4000 to construct public sewers available to the entire city, but that it was to be left to the city council as to where the sewers would be placed. A public sewer is one that is open and available to the whole city, and not limited to any particular part of it. South Highland Co. v. Kansas City, 172 Mo. 523; Laws 1909, p. 329.
Percival Birch and W. M. Williams for respondents.
(1) (a) The notice given of the special election fully complied with the statutory requirement. "Fifteen days' previous notice by publication" in a weekly newspaper published in said city was given. "The statute does not direct that the notice shall be published any specified number of times." It merely requires that fifteen days' previous notice shall be given of the election by publication in some newspaper published in such city. R. S. 1909, sec. 9595; Bank v. Stumpfe, 73 Mo. 314; State ex rel. v. Allen, 178 Mo. 574; State ex rel. v. Wilder, 200 Mo. 103; In re Wooldridge, 30 Mo.App. 619; Railroad v. Shipley, 19 A. 2; Bank v. Mayor, 18 A. 809; McGilvery v. Lewiston, 90 P. 348; Aldis v. Comrs., 49 N.E. 565; Smith v. Atlanta, 51 S. E. (Ga.) 741; Montford v. Allen, 36 S. E. (Ga.) 305; Royal Ins. Co. v. Comrs., 51 N. E. (Ill.) 558; Stone v. Chicago, 69 N. E. (Ill.) 974; In the Matter of Basford, 50 N.Y. 509; Erickson v. Cass County, 92 N.W. 841; Cleveland v. Calvert, 31 S. E. (S. C.) 871; 2 Paige and Jones on Taxation by Assessment, sec. 763. (b) Certainly no complaint can be made that the voters were misled for want of actual notice or that sufficient publicity in fact was not given. The testimony shows that, in addition to the frequent reference to the election by the press of the city, the mayor mailed notices of the election and circulars in regard to the city's affairs and the reasons for the issue of the bonds to each qualified voter. While this may not supply the notice required by the statute, it eliminates any possible ground of complaint because of a want of actual notice. (2) The election having been properly conducted by the judges and clerks appointed for that purpose and the ballots having been counted and the result duly certified by them at the close of the polls, the recount of the ballots by the mayor and board of councilmen, with the same result as that reached by the judges, will not invalidate the election or defeat the expressed will of the voters. Windes v. Nelson, 159 Mo. 51; 15 Cyc. 382; Atkinson v. Loben, 111 Cal. 419. The mayor and board of councilmen were empowered by the statute to prescribe regulations for conducting the election and the Australian ballot law is inapplicable. R. S. 1909, secs. 5921 and 9595. (3) The property of railroad, bridge, telegraph and telephone companies in the city of Glasgow was properly included in the value of the taxable property of said city in ascertaining the extent of its debt-creating power under the Constitution. R. S. 1909, sec. 11553; State ex rel. v. Railroad, 116 Mo. 24; Thornburg v. School District, 175 Mo. 28. Merchants' and manufacturers' stock and property is now assessed and the valuation equalized as other property and was properly included in the estimate. R. S. 1909, sec. 11623. There is no authority under the Constitution for excluding from the aggregate value of the property of the city in determining this question land not divided into lots, even though such lands should not be subject to city taxes. Sec. 12, art. 10, Constitution of 1875; Thornburg v. School District, 175 Mo. 28; Darlington v. Trust Co., 16 C. C. A. 35. No evidence was introduced and there is nothing in the record to show the value of any such real estate, and no basis is furnished upon which a deduction on that account can be made from the taxable value of the property in the city as "ascertained by the assessment next before the last assessment for State and county purposes previous to the incurring of such indebtedness," which is the rule prescribed by the Constitution for determining the debt-creating power of the city.
OPINION
In Banc.
Plaintiffs are resident taxpaying citizens of the city of Glasgow, Missouri, a city yet existing under an old special charter granted by the Legislature, and subsequently amended by subsequent acts of the same body. Defendants are the mayor and secretary of said city, the city of Glasgow in its corporate capacity, and the State Auditor.
The purpose of the suit is to restrain by writ of injunction the issuance and registration of $ 30,000 of municipal bonds for three separate municipal purposes alleged to have been voted by the voters of said city at a special election held on October 18, 1909. The petition assails the legality of these proposed bonds upon some six grounds, but as these are made the basis of the several assignments of error in this court they need not be stated here, but will be discussed in the opinion. The petition sets out the ordinance and pleads many facts which are admitted in the answer.
The answer, after some formal admissions as to the official...
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