State ex rel. and to Use of Smith v. Sevier

• Decision Date: 21 March 1936
• Docket Number: 34079
• Citation: 92 S.W.2d 102
• Parties: STATE ex rel. and to Use of SMITH, Auditor, v. SEVIER, Judge, et al
• Court: Missouri Supreme Court

92 S.W.2d 102

STATE ex rel. and to Use of SMITH, Auditor, v. SEVIER, Judge, et al

No. 34079

Supreme Court of Missouri, Second Division

March 21, 1936

Roy McKittrick and Covell Hewitt, both of Jefferson City, H. K West, of Brookfield, and C.A.Johnson, of Linneus, for relator.

Lewis H. Cook, of Jefferson City, Paul D. Kitt, of Chillicothe, and Sparrow, Patterson, Chastain & Graves, of Kansas City, for respondents.

OPINION

BOHLING, Commissioner.

Relator Forrest Smith, as state auditor of the state of Missouri invokes the extraordinary remedy of prohibition to prohibit Nike Sevier, judge of the Fourteenth judicial circuit, from entertaining and asserting jurisdiction of a suit, styled E. B. Allen v. Forrest Smith, State Auditor, instituted in the circuit court of Cole county, Mo., by said E. B. Allen as an assessed, taxpaying citizen of the city of Laclede, Mo., on behalf of himself and others similarly situated, to enjoin relator, as auditor aforesaid, from registering a certain $ 12,000 bond issue of said city of Laclede, a city of the fourth class, issued for the alleged purpose of constructing, purchasing, operating, and maintaining a municipal electric light plant in said city.

Relator's application for our provisional rule in prohibition sets forth the proceedings had in the circuit court of Cole county, Mo.; embracing, among other things, a copy of the petition in said injunction proceeding.

Respondents Sevier and Allen filed separate demurrers to relator's petition for prohibition. See, as to respondent Allen's status, State ex rel. v. Bader, 336 Mo. 259, 78 S.W.2d 835 (1), and cases cited. The demurrer of respondent Sevier presents the issue of the sufficiency of said petition for prohibition to entitle relator to the relief prayed.

Relator contends the allegations in the petition in said cause entitled Allen v. Smith are, with the exception hereinafter noted, mere statements of conclusions and, as such, are to be treated as no statement at all; and that, since the only allegations presenting issuable facts relate to the validity of said election authorizing said bond issue by said city, said proceeding is one in equity to contest the validity of the election approving said bond issue and is without the jurisdiction of a court of equity. We have held the averment of a legal conclusion is not the statement of an issuable fact and is to be treated as no statement at all [State ex rel. v. Lee, 288 Mo. 679, 698 (2), 233 S.W. 20, 25 (4); Ash v. Independence, 169 Mo. 77, 78, 68 S.W. 888]; and 'we have consistently held, upon a consideration of the common-law doctrine, the provisions of the Constitution of this state, and the absence of any legislative provisions for contest of an election of the character here involved [for the issuance of municipal bonds for the construction of a municipal bonds for the construction of a municipally owned and operated sewer system and waterworks system], that a court of equity is without jurisdiction to set aside the result of a bond election on the grounds that the election was fraudulently conducted' [State ex rel. v. Drain, 335 Mo. 741, 747, 73 S.W.2d 804, 807 (5), and cases cited].

Respondents, not questioning these principles of law, contend said petition in the injunction suit presents, in addition to any issues involving the results of said bond election, the following among other issues: (1) That there is no statutory provision authorizing the issuance of bonds for the operation and maintenance of an electric light plant [citing sections 7030, 7217, 7651, R.S. 1929 (Mo.St.Ann. §§ 7030, 7217, 7651, pp. 5753, 58...