State ex rel. City of Clarence v. Drain

• Decision Date: 17 July 1934
• Docket Number: 33474
• Citation: 73 S.W.2d 804,335 Mo. 741
• Parties: State of Missouri at the relation of the City of Clarence, a Municipal Corporation, W. H. Hudson, Mayor of said City and John H. Cox, Everett Bohannon, S. H. Rickey and Harry Naylor, Constituting the Board of Aldermen of said City of Clarence, Relators, v. Vernon L. Drain, Judge of the Second Judicial Circuit and Judge of the Circuit Court of Shelby County, and Samuel Long and J. M. McQuary
• Court: Missouri Supreme Court

73 S.W.2d 804

335 Mo. 741

State of Missouri at the relation of the City of Clarence, a Municipal Corporation, W. H. Hudson, Mayor of said City and John H. Cox, Everett Bohannon, S. H. Rickey and Harry Naylor, Constituting the Board of Aldermen of said City of Clarence, Relators, v. Vernon L. Drain, Judge of the Second Judicial Circuit and Judge of the Circuit Court of Shelby County, and Samuel Long and J. M. McQuary

No. 33474

Supreme Court of Missouri

July 17, 1934

Rehearing Denied July 17, 1934.

Provisional rule made absolute.

William L. Hamrick, Hulse & Hulse and Mahan, Mahan & Fuller for relators.

(1) The petition filed by the respondents, Samuel Long and J. M McQuary, in the Circuit Court of Shelby County, Missouri does not state any facts sufficient to form the basis for any injunctive relief, and it is apparent upon the face of said petition that said circuit court has no jurisdiction of the subject matter thereof, which it has assumed and prohibition is the proper remedy. 22 R. C. L. 5, sec. 4; 50 C. J. 654, sec. 3; State ex rel. v. Bright, 224 Mo. 514; State ex rel. Smith v. Williams, 310 Mo. 267, 275 S.W. 534; State ex rel. Page v. Terte, 25 S.W.2d 459, 324 Mo. 925; State ex rel. K. C. Pub. Serv. Co. v. Latshaw, 30 S.W.2d 105, 325 Mo. 909; State ex rel. Wahl v. Speer, 284 Mo. 45, 223 S.W. 655; Boney v. Sims, 304 Mo. 369, 263 S.W. 412; Long v. School Dist. No. 7, Kingsville, Johnson County, 53 S.W.2d 867; Const. Mo., Secs. 12 and 12a, Art. X; State ex rel. Ray County v. Hackmann, 295 Mo. 417; State ex rel. v. Denton, 128 Mo.App. 304; State ex rel. v. Allen, 45 Mo.App. 557; State ex rel. v. Eby, 170 Mo. 497; State ex rel. Fenn v. McQuillin, 256 Mo. 693, 165 S.W. 716; Kalbfell v. Wood, 193 Mo. 675; State ex rel. v. Denton, 229 Mo. 187, 129 S.W. 709, 138 Am. St. Rep. 417; State ex rel. Larew v. Sale, 188 Mo. 493; St. L., Kennett & So. Railroad Co. v. Wear, 135 Mo. 257. (2) The city officials of the city of Clarence, including the mayor and board of aldermen, were duly elected and qualified, and if not duly elected and qualified, such officials, as alleged in the petition of respondents, Samuel Long and J. M. McQuary, were serving and acting in their several official capacities, and were de facto officers, and their official acts cannot be impeached collaterally. Harbough v. Winsor, 38 Mo. 327; State v. Douglass, 50 Mo. 296; Wilson v. Kimmel, 109 Mo. 264; Hill v. Kresge Co., 202 Mo.App. 388. (3) There is no statutory provision in Missouri for the contest of a municipal election, such as the one involved in this case. State ex rel. Wahl v. Speer, 284 Mo. 45, 223 S.W. 655; Boney v. Sims, 304 Mo. 369, 263 S.W. 412; Long v. School Dist. No. 7, Kingsville, Johnson County, 53 S.W.2d 867.

Rendlen, White & Rendlen and H. A. Wright for respondents.

(1) Prohibition is an extraordinary remedy available only when the lower court is proceeding without jurisdiction or in excess of its jurisdiction. If the Circuit Court of Shelby County, Missouri (as respondents aver to be the fact), was acting within the limits of its jurisdiction, this court cannot control its discretion or coerce a particular judgment through the issuance of a writ of prohibition. The lower court has a right to hear and determine the matter before it; any error or incorrect ruling of law can be corrected on appeal but not by prohibition, which cannot be used for such purpose. State ex rel. Drainage Dist. No. 8 of Pemiscot County v. Duncan, 68 S.W.2d 684; State ex rel. Union Depot Ry. Co. v. Ry. Co., 100 Mo. 61. (2) For purposes of this proceeding, the facts pleaded in plaintiffs' petition in the trial court are taken as true. (3) Prohibition will not be substituted for a demurrer to the petition. This the relators seek to do in this prohibition proceeding. State ex rel. Hog-Haven Farms v. Percy, 41 S.W.2d 409. (a) Prohibition cannot be employed, as here attempted by relators, to perform the office of an appeal. State ex rel. Sexton v. Roehrig, 19 S.W.2d 627. (4) This is not an election contest. The proceeding sought to be prohibited is an injunction suit, which seeks to prevent the officers of the city of Clarence from issuing bonds, and imposing taxes upon its citizens to pay the same. The injunction suit avers there was no valid election; that the law providing for such election to be held or the bonds to be issued at all has not been complied with. There was not a substantial compliance with the law authorizing such bonds to be issued; that the election claimed to authorize the bonds was illegal and void and that the claimed authority to issue same was fraudulently and corruptly obtained. Gaston v. Lamkin, 115 Mo. 20; State ex rel. Tarkio v. Seibert, 116 Mo. 418; State v. Speer, 223 S.W. 663; State ex rel. Memphis v. Hackman, 273 Mo. 670, 202 S.W. 7; Bauch v. Cabool, 165 Mo.App. 486; State ex rel. Harrison v. Frazier, 98 Mo. 426; State ex rel. Brown v. McMillan, 108 Mo. 161; People v. Tool, 35 Colo. 225, 86 P. 231, 117 Am. St. Rep. 198, 6 L. R. A. (N. S.) 822; Meyers v. Walker, 264 S.W. 314, judgment affirmed Walker v. Meyers, 266 S.W. 499.

Tipton, J. All concur, except Atwood, J., who concurs in result.

OPINION

TIPTON

This is an original proceeding in prohibition filed in this court to prohibit the respondent, Vernon L. Drain, Judge of the Second Judicial Circuit, from entertaining and determining a suit filed in the Circuit Court of Shelby County, by Samuel Long and J. M. McQuary, two resident taxpayers of Clarence, Missouri, wherein they sought to enjoin the city of Clarence, Missouri, its mayor and its board of aldermen from issuing certain bonds voted at a special election held in that city on December 22, 1933. These bonds were to be issued for the construction of a sewer system and a waterworks system to be owned and operated by that city, and the plaintiffs further sought to enjoin the defendants in that action from providing for and levying taxes with which to pay these bonds, because the election authorizing the issuance of the bond was fraudulently conducted and did "not represent the fair honest will, vote and expression of the voters fairly and honestly arrived at or reported." The relators filed a demurrer to that petition which was overruled by the respondent judge.

In substance, the petition for injunction alleged that the plaintiffs were residents and taxpayers within and for the city of Clarence, and they brought that action upon their own behalf and all others similarly situated; that W. H. Hudson exercised the functions and powers of mayor and that the other defendants exercised the power and authority of the board of aldermen of that city; that the defendants are preparing to issue bonds for the purpose of establishing a sewer system and a waterworks system; that the defendants acting as the mayor and board of aldermen passed and adopted Ordinances Numbers 222 and 223 for the purpose of calling a special election on December 22, 1933, to test the sense of the qualified voters of the city upon the proposition to incur indebtedness and issue bonds for the purpose of constructing a sewer system and a waterworks system. The ordinance named certain persons as judges and clerks of such election.

The petition further alleged that the mayor and aldermen had not subscribed to the oath of office as provided by statute, and that the mayor and the aldermen were delinquent in payment of their taxes at the time of their purported election or appointment to office and were thereby disqualified from holding office and had no lawful power, right or authority to pass or adopt the aforesaid ordinances or do or perform the matters and things done and which they threaten to do; that the entire personnel of those assuming to be city officials as well as the judges and clerks of the election were partisan proponents for the issuance of the bonds, and that the city officials refused to name upon request at least one election official who was opposed to the bond issue.

The petition further alleged that many disqualified voters (naming them) were permitted to vote who voted in favor of the bonds, and many qualified voters (naming them) were not permitted to vote who would have voted against the bonds; that some persons voted twice in favor of the bonds; that the opponents to the bonds selected a representative to watch the counting of the ballots, but he was not allowed to do so; that persons in favor of the bonds, other than election officials were permitted to be present when the votes were counted; that the ballots were not correctly counted and that the said proposals did not carry by a two-thirds majority of the votes cast; that "an examination of the ballots cast in said election and a legal and lawful inquiry into its said ballots and the counting thereof will disclose the same and plaintiffs ask the same be done;" that the city council wrongfully appointed two challengers of election favorable to said proposals in each voting precinct; "that the election held as aforesaid was not openly, fairly or lawfully conducted or held."

The petition further alleges that the debt proposed by the city by the aforesaid proposals, works, structures and bonds to be issued in payment thereof would be in excess of the annual income and revenue of the city for any one year; that "the indebtedness to be contracted or created will exceed in the aggregate with the existing indebtedness of the city of Clarence, five per cent on the value of the taxable property therein ascertained by the assessment next before the last assessment thereof for state and county purposes previous to incurring such proposed and contemplated indebtedness. Wherefore, plaintiffs prayed that the mayor and board of aldermen be enjoined from proceeding with the execution, issuance, negotiation,...