State ex rel. City of Berkeley v. Holmes

• Decision Date: 11 April 1949
• Docket Number: 41316
• Citation: 219 S.W.2d 650,358 Mo. 1237
• 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

358 Mo. 1237

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

April 11, 1949

Original Proceeding in 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 P. 958; McDonald v. Cochise County, 292 P. 603; Seymour v. City of Tacoma, 33 P. 1059; Weisgerber v. Nez Perce County, 197 P. 562; Ratliff v. State, 191 P. 1038; Vickers v. Schultz, 81 P.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 P. 217; Demaree v. Johnson, 50 N.E. 376; Sonoma County v. Sanborn, 36 P.2d 419; Sacramento County v. Stephens, 53 P.2d 197; Rands v. Clarke County, 139 P. 1090; Town of Grove v. Haskell, 104 P. 56; Hood v. City of Wheeling, 102 S.E. 259; Wightman v. Willage 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 P.2d 50; City of Ardmore v. State, 104 P. 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.

OPINION

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.

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 in a newspaper published in the City" or if there be none "then in a newspaper published in the county wherein is situate such city;" and that "the first publication of the notice shall be made at least twenty-one days before, and the last shall be within two weeks of the date of the election." The State Auditor contends that the election was invalid because of failure to comply with this statute since the first notice was published less than twenty-one days before the date of the election.

Relator claims a substantial compliance, which it says was sufficient to validate the election, because in addition to the notice published three times in November there was also a news item published in the same Ferguson paper on October 23, 1947, giving the information contained in the November notice; and because actual notice of the election was given in the following manner: "Prior to the election maps were printed showing the road to be improved with the proceeds of the bonds proposed to be issued, and a copy of the map, upon which appeared the date of the election, was delivered to each residence in the City, to the householder or a member of his family, by an alderman of the City." There were 488 votes cast in the special election of December 2, 1947 and more than the required two-thirds of those voting voted for the increase of debt, namely, 342 votes for the bonds and 145 against them. The average of all previous special elections held in the city was 242 votes. The average of all previous elections, general and special, was 394 votes; and the average of all previous general elections was 462 votes. The largest vote previously cast in a special election was 593, in June 1947, and in a previous general election, 702 in 1940.

Relator relies on cases such as Weisgerber v. Nez Perce County (Idaho) 197 P. 562 and Hill v. Skinner, (N.C.) 86 S.E. 351. [See also Sonoma County v. Sanborn, (Cal.) 36 P.2d 419; Gollar v. Louisville, (Ky.) 219 S.W. 421; City of Ardmore v. State, (Okla.) 104 P. 913; Rands v. Clarke County, (Wash.) 139 P. 1090.] The rule for which relator contends is stated in the Weisgerber case (a bond election case) as follows: "Statutory directions as to the time and manner of giving notice of elections are mandatory upon the officers charged with the duty of calling the election, and will be upheld strictly in a direct action instituted before an election; but after an election has been held, such statutory requirements are directory, unless it appears that the failure to give notice for the full time specified by the statute has prevented electors from giving a full and free expression of their will at the election, or unless the statute contains a further provision, the necessary effect of which is that failure to give notice for the statutory time will render the election void." The Court cited many c...