State ex rel. City of Berkeley v. Holmes, 41316.

• Decision Date: 11 April 1949
• Docket Number: No. 41316.,41316.
• Citation: 219 S.W.2d 650
• Parties: STATE OF MISSOURI at the Relation of the City of Berkeley, Relator, v. W.H. HOLMES, State Auditor of Missouri, Respondent.
• Court: Missouri Supreme Court

219 S.W.2d 650 STATE OF MISSOURI at the Relation of the City of Berkeley, Relator,
v.
W.H. HOLMES, State Auditor of Missouri, Respondent. No. 41316. Supreme Court of Missouri. Court en Banc, April 11, 1949.

Mandamus.

WRIT QUASHED.

Calhoun & Boisseau for relator.

(1) Mandamus is the proper remedy to compel the state auditor to register the bonds of the relator. State ex rel. City of Jefferson v. Hackman, 287 Mo. 156, 229 S.W. 1082; State ex rel. Webster Groves Sanitary Sewer Dist. v. Smith, 337 Mo. 855, 87 S.W. (2d) 147. (2) Substantial compliance with the statutory provision as to publication of a notice of election is all that is required in the absence of a showing that some electors were deprived of their right to vote because of the irregularity of the publication and that their votes would have changed the result of the election. 20 C.J. 99, sec. 84; McCrary on Elections, 4th Ed., sec. 177; 5 McQuillin on Municipal Corporations, p. 1406; Hill v. Skinner, 86 S.E. 351; State ex rel. Mullen v. Doherty, 16 Wash. 382, 47 Pac. 958; McDonald v. Cochise County, 292 Pac. 603; Seymour v. City of Tacoma, 33 Pac. 1059; Weisgerber v. Nez Perce County, 197 Pac. 562; Ratliff v. State, 191 Pac. 1038; Vickers v. Schultz, 81 Pac. (2d) 808; State v. Board of Liquidation, 122 So. 894; Gollar v. Louisville, 219 S.W. 421; Dishon v. Smith, 10 Iowa 212; City of Albuquerque v. Water Supply Company, 174 Pac. 217; Demaree v. Johnson, 50 N.E. 376; Sonoma County v. Sanborn, 36 Pac. (2d) 419; Sacramento County v. Stephens, 53 Pac. (2d) 197; Rands v. Clarke County, 139 Pac. 1090; Town of Grove v. Haskell, 104 Pac. 56; Hood v. City of Wheeling, 102 S.E. 259; Wightman v. Village of Tecumseh, 122 N.W. 122; Attorney General v. Campbell, 78 N.E. 133; Williams v. Glover, 259 S.W. 957; McLaughlin v. City of Prescott, 6 Pac. (2d) 50; City of Ardmore v. State, 104 Pac. 913. (3) Subsequent to the holding of an election statutory provisions for notice thereof are construed to be directory rather than mandatory, in the absence of statutory declaration to the contrary and in the absence of fraud. Cooley on Constitutional Limitations (7th Ed.), p. 113; Weisgerber v. Nez Perce County, 197 P. 562; Ratliff v. State, 191 P. 1038; Rands v. Clarke County, 139 P. 1090; Vickers v. Schultz, 81 P. (2d) 808; Sonoma County v. Sanborn, 36 P. (2d) 419; Sacramento County v. Stephens, 53 P. (2d) 197; Hill v. Skinner, 86 S.E. 351. (4) The courts have no jurisdiction to inquire into the validity of a bond election in the absence of a specific statute giving them such jurisdiction. State ex rel. v. Speer, 284 Mo. 45, 223 S.W. 655; Arkansas-Missouri Power Corp. v. City of Potosi, 196 S.W. (2d) 152; State ex rel. Jackson County v. Waltner, 100 S.W. (2d) 272.

J.E. Taylor, Attorney General, and George W. Crowley, Assistant Attorney General, for respondent.

(1) Strict compliance only with the statutory provisions defining the period of time necessary for the publication of a notice of a special election will satisfy the statute. Sec. 7369, R.S. 1939; The German Bank v. Stumpf, 73 Mo. 311; State ex rel. v. Allen, 178 Mo. 555, 77 S.W. 868; Ratliff v. Magee, 165 Mo. 461, 65 S.W. 713; Drainage Dist. v. Campbell, 154 Mo. 151, 55 S.W. 276; Southworth v. Mayor of Glasgow, 232 Mo. 108, 132 S.W. 1168; Young by Gdn. v. Downey, 150 Mo. 317, 51 S.W. 751; Munday v. Leeper, 120 Mo. 417, 25 S.W. 381; State ex rel. v. Hackman, 273 Mo. 670, 202 S.W. 7; State ex rel. v. Reid, 134 Mo. App. 582, 114 S.W. 1116; State ex rel. v. Tucker, 32 Mo. App. 620; Bean v. County Court, 33 Mo. App. 635; State v. Kaufman, 45 Mo. App. 656; State v. Kampman, 75 Mo. App. 188. (2) Failure to observe the provisions of the statute respecting the period of time for publication of notice of a special election to be held to vote bonds renders the election and all subsequent proceedings thereunder invalid, and they may be attacked subsequent to the election and until registered by the State Auditor. Sec. 3306, R.S. 1939; State ex rel. v. Gordon, 268 Mo. 321, 188 S.W. 88. (3) Substantial or approximate compliance with a statute requiring notice of a special election to vote bonds has been upheld by this court, as to preliminary steps leading up to the giving of such notice, but never as to that part of a statute fixing the period of time such notice must be published before the date of the election. State ex rel. Kansas City v. O'Rear, 277 Mo. 303, 210 S.W. 392; State ex inf. Atty. Gen. v. Bird, 295 Mo. 344, 244 S.W. 938; Southworth v. Mayor of Glasgow, 232 Mo. 108, 123 S.W. 1168. (4) The notice of a special election to vote municipal bonds must be the notice provided by the statute. Voluntary items of information, such as news items published in a newspaper that an ordinance had been passed by the board of aldermen of the municipality calling for a bond election, or such unauthorized informative matter from any source, or the printing and distribution of maps by city officials showing the street or road to be improved by proceeds of the bond issue, will not take the place of the statutory notice, or any insertion thereof. McPike v. Pen, 51 Mo. 63; Southworth v. Mayor of Glasgow, 232 Mo. 108, 123 S.W. 1168. (5) The text of point IV in relator's points and authorities states: "The courts have no jurisdiction to inquire into the validity of a bond election in the absence of a specific statute giving them such jurisdiction" citing, in support thereof, State ex rel. v. Speer, 284 Mo. 45, 223 S.W. 655; Arkansas-Missouri Power Corporation v. City of Potosi, 196 S.W. (2d) 152; State ex rel. Jackson County v. Waltner, 100 S.W. (2d) 272. These decisions hold only that courts of equity do not have jurisdiction to inquire into the legality of a bond election without statutory authority. State ex rel. v. Speer, 284 Mo. 45, 223 S.W. 655; Arkansas-Missouri Power Corp. v. City of Potosi, 355 Mo. 356, 196 S.W. (2d) 152; State ex rel. Jackson County v. Waltner, 340 Mo. 137, 100 S.W. (2d) 272.

HYDE, J.

Mandamus to compel the State Auditor to register bonds of the City of Berkeley, a fourth class city in St. Louis County, under Section 3306, R.S. 1939, Mo. Stat. Ann. The question for decision is whether the special election authorizing the bonds was invalid because of insufficient publication of notice.

[1] The notice of this election, held December 2, 1947, was published on November 13, 20 and 26, 1947, in a St. Louis County newspaper published in the nearby city of Ferguson, there being no newspaper in Berkeley. Thus the first publication was only nineteen days before the date of the election. Section 7369, R.S. 1939, Mo. Stat. Ann. (Amended Laws 1945, p. 1301) provides that for the purpose of testing the sense of the voters of such a city on a proposition to incur debt, the Council "shall order an election to be held of which they shall give notice signed by the City Clerk." It further provides that "such notice shall be advertised by publication once a week for three consecutive weeks...