State ex rel. City of Marshall v. Hackman
| Decision Date | 17 May 1918 |
| Citation | 203 S.W. 960,274 Mo. 551 |
| Parties | THE STATE ex rel. CITY OF MARSHALL v. GEORGE E. HACKMAN, State Auditor |
| Court | Missouri Supreme Court |
Writ granted.
Richard L. Goode, William T. Bellamy and Virgil V. Huff for relator.
(1) The city of Marshall has been given direct statutory power, to erect or acquire by purchase, and maintain and operate an electric light plant. The power is conferred on the city council of any city, town or village in the State. R. S 1909, sec. 9904. And it is conferred by another statute on cities of the third class and those under special charters and with less than thirty thousand inhabitants. R. S. 1909 sec. 9914. And by still another section, the power is conferred by fair implication on any city in the State, which has not more than thirty thousand nor less than two thousand inhabitants. R. S. 1909, sec. 9664. See also Section 9238 which empowers cities of the third class to provide for street lighting by contract, etc. (2) To enable cities to carry out the power thus conferred, authority to contract a debt by the issue of municipal bonds to be discharged by taxation, is likewise conferred. R. S. secs. 9544-9548, 9914 9664. These statutes authorize cities to exceed the limitations on municipal indebtedness provided for in Section 12, Article 10, of the Constitution; but the city of Marshall does not need to exceed the original limitation in the Constitution. Its total debts, including this issue of bonds, will not exceed that limitation. (3) The election upon the question of issuing the bonds was lawfully held on June 26th, and was not required to be held on the first Tuesday in April, the day fixed by statute for the election of city officers. R. S. 1909, sec. 9545. (4) The statutes that are in pari materia upon the question of by whom the votes cast at special elections, upon the proposition to incur a municipal debt, shall be counted, canvassed and the result ascertained and declared, plainly entrust these tasks to the city council, and not to the city clerk, assisted by two justices of the peace or two county court judges, after analogy to the work of county clerks in ascertaining general election results under Secs. 5911, 5912, R. S. 1909. See Sections 9545, 9546, R. S. 1909, relating to special bond elections and Section 9145 relating to elections in third class cities. Those statutes provide specially for the returns of a bond election to be sent to, and the result ascertained by, the city council, just as Section 6145 et seq. provides specially for those matters in general elections in cities of more than one hundred thousand inhabitants. It is a rule of statutory construction that enactments specifically regulating a particular matter, are controlling as against general enactments. In the following cases the statement of facts and the opinions show the same method was observed as in the case at bar to ascertain and declare the result of the election (i. e. by the city council.) Such has been the unchallenged custom. State ex rel. v. Wilder, 200 Mo. 97; State ex rel. v. Gordon, 217 Mo. 103; State ex rel. v. Finley, 74 Mo.App. 213. (5) The law in respect of secrecy of the ballot was substantially observed. Whatever irregularities occurred in this regard were confined to the ward poll and were due to the inadvertence of some of the voters, not to the city of Marshall, nor the election officials. Booths were provided but some voters chose not to use them. No general or fraudulent disregard of the policy of the law, such as would justify annulling the election, occurred. Skelton v. Ulen, 217 Mo. 383; Hall v. Schoeneke, 128 Mo. 661; Mills v. Meen, 193 Mo.App. 306; Patton v. Walkins, 131 Ala. 387, 80 Am. St. 43; Morgan v. Van Deventer, 12 Wash. 377, 50 Am. St. 90; Conaty v. Gordon, 75 Conn. 46; Perry v. Hackney, 11 N.D. 148. (6) If one or two of the substitute judges were appointed irregularly (that is without the consent of the voters present), which we deny, this circumstance would not vitiate the election even in the precincts where it occurred. They were de facto officers at any rate, and their authority is not questionable collaterally. State v. Swearingen, 128 Mo.App. 614; Sanders v. Lacks, 142 Mo. 255; Trust Co. v. Morganfield, 96 Ky. 563; Well v. Taylor, 5 Mont. 202; People v. Cook, 8 N.Y. 67, 59 Am. Dec. 451; McCraw v. Harrelson, 44 Tenn. 34; State v. Brien, 38 N.W. 368; Kirkpatrick v. Viekers, 24 Kan. 368. (7) Presence of outsiders in polling places while some of the ballots were counted is no ground for setting aside the election; see Skelton v. Ulen, 217 Mo. 383; Roberts v. Calver, 98 N.C. 380. Fraudulent irregularities not shown to affect result, do not annul vote unless a statute so declares. 18 Am. Dig., p. 319; 9 R. C. L. 197, and cases in note 17; 9 R. C. L. 1092, and cases in notes 11 and 12. (8) Practically nothing was proved as to the form in which the returns were sent in to the council by the election officers not being according to the statutes. Failure of the judges and clerks to certify the poll books, had such failure occurred (and it did not), would not have been fatal to the vote of a precinct. Laughlin v. Kirkwood, 107 Mo.App. 319, 320; State v. Siller, 24 Kan. 13. Irregularities of this kind are never cause for annulling an election or the vote of a precinct. Paine on Elections, secs. 581, 585, 595, 600; Noward v. Shields, 16 Ohio St. 184; Richardson v. Ramy, 1 El. 224; State v. Siller, 24 Kan. 13; Johnson v. Cole, L. H. R. 36. The statutes (Australian Ballot Law) were substantially observed in holding the election. Proper notice was given of the date and polling places, and whatever deviations from the law occurred, neither changed the result nor threw it into uncertainty, nor were due to any fraudulent purpose on the part of the city. Nor were there any deviations from the law of a kind that the statutes say shall render an election void. A few illegal votes were cast, but the simplest calculation shows these could not have changed the result. Some voters refused to observe secrecy in preparing their ballots, but every opportunity was afforded them to do so. No authority can be found which would set aside the result on account of these derelictions on the part of the voters. (9) It is not lawful in this case to investigate the legality of votes cast with reference to the residence or qualifications of voters, and this for two reasons: the issue is not within the scope of the pleadings, nor is such matter competent to be inquired of in a proceeding against the Auditor to compel registration of bonds, but only in an election contest. And if the statutes provide for no contest the decision of the election judges as to such question, as shown by the election returns, is final. That is, no inquiry can be had. State ex rel. v. Dillon, 87 Mo. 487; State ex rel. v. Francis, 88 Mo. 557; Kehr v. Columbia, 136 Mo.App. 322; State v. Gamma, 149 Mo.App. 694; State ex rel. v. Spencer, 164 Mo. 34. In collateral proceedings, evidence to contradict the returns is not competent. State ex rel. v. Dillon, 87 Mo. 487; State ex rel. v. Francis, 88 Mo. 557; State ex rel. v. Elkins, 130 Mo. 90. The functions of election judges in deciding upon the qualifications of voters and their right to vote are judicial in character, and for this reason also may not be collaterally attacked, except for fraud, not alleged in this cause. McGown v. Gardner, 186 Mo.App. 484; Blake v. Brothers, 79 Conn. 676, 11 L. R. A. (N. S.) 501.
Frank W. McAllister, Attorney-General, S. P. Howell, Assistant Attorney-General, and Fordyce, Holliday & White for respondent.
(1) The writ of mandamus is not a writ of right. Its issuance rests in the discretion of the court. State ex inf. v. Gas. Co. 254 Mo. 531; State ex rel. v. Wilder, 211 Mo. 319. (2) It was the duty of the State Auditor to determine whether all the conditions of the laws of the State had been complied with in the issuance of the bonds. Sec. 1275, R. S. 1909; Hoff v. County, 110 U.S. 53; State ex rel. v. Gordon, 251 Mo. 311; Thornburg v. School District, 175 Mo. 12; Evans v. McFarland, 185 Mo. 703; State ex rel. v. Gordon, 268 Mo. 326. (3) The conditions of the laws had not been complied with in the issuance of the bonds in question, for the election at which the people of Marshall were alleged to have voted in favor of the bonds was illegal and void because: (a) The election was not held on the day required by law. Secs. 9545, 9546, 9145, R. S. 1909; Ordinance No. 9 of the City of Marshall; Sec. 8057, R. S. 1909; State ex rel. v. Jenkins, 43 Mo. 265; State ex inf. v. Dabbs, 182 Mo. 366; State ex rel. v. Ellison, 271 Mo. 129. (b) The city of Marshall, a city of the third class, has no authority, under the law of the State, to issue and sell bonds for the purpose of purchasing an existing electric light plant. Sec. 9914, R. S. 1909, as amended Laws 1911, p. 352; Secs. 9238, 9545, R. S. 1909; State ex rel. v. Wilder, 200 Mo. 104; Hazelhurst v. Mayes, 96 Miss. 606. (c) The election was not conducted in accordance with the Australian Ballot Law, in that persons not qualified to vote, persons not residents of the city of Marshall, persons residing in a ward of the city other than that in which they voted, were all permitted to cast their ballots and the secrecy of the ballot was not protected. Chapter 43, R. S. 1909; Gaston v. Lamkin, 115 Mo. 20; State ex rel. v. Seibert, 116 Mo. 418; Miles v. Macon, 193 Mo.App. 306, 269 Mo. 151; Ordinance No. 9 of the City of Marshall, sec. 4; Sec. 5800, R. S. 1909; Hall v. Schoenecke, 128 Mo. 670; Lankford v. Gebhard, 130 Mo. 634. (4) The commissioner erred in refusing respondent's request that the ballots cast at the election be produced and examined. Sec. 3, Art. 8, Mo. Constitution; Secs. 5905, 5939, R. S. 1909; State ex rel. v....
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