State ex rel. St. Joseph Light & Power Co. v. Parks
| Decision Date | 03 October 1966 |
| Docket Number | No. 24398,24398 |
| Citation | 409 S.W.2d 199 |
| Court | Missouri Court of Appeals |
| Parties | STATE ex rel. ST. JOSEPH LIGHT & POWER COMPANY, Relator, v. Darrell PARKS, Mayor of Easton, Missouri et al., Respondents. |
Floyd M. Sprague, Charles S. Wilcox, Sprague, Wilcox & Houts, St. Joseph, for relator.
Vernon N. Kneib, St. Joseph, for respondents.
Relator, St. Joseph Light and Power Company, brings mandamus against the mayor, all four aldermen and the city clerk of the City of Easton, Missouri, and against six individuals who acted as judges and clerks of a special election held in the City of Easton on August 11, 1964. By the writ of mandamus, relator seeks to change the official records of the city to show that a proposition to grant it a franchise was passed at such special election. The Circuit Court of Buchanan County, Missouri, by its final judgment limited the commands of its peremptory writ of mandamus to the city clerk, ordering her to record in the journal of the proceedings of the board of aldermen, the final passage of Ordinance 108 (granting a franchise to relator) on July 6, 1964, by a vote of three to one and declaring Ordinance 110, passed September 14, 1964 to be null and void and directing the city clerk to expunge it from the records and to enter in the journal of the proceedings of the board of aldermen that Ordinance 108 'carried by the affirmative vote of a majority of the qualified voters of the City of Easton voting at said special election of August 11, 1964.'
Before the events here in question transpired, the City of Easton was a 4th class city, which owned and operated its own electrical distribution system. It purchased electric energy at wholesale from the relator, and sold it at retail to the residents of Easton, through its distribution system. For a considerable period of time, the light company had desired to terminate this arrangement and secure a franchise from the city authorizing it to sell directly at retail to the residents of the city. In the early part of 1964, Ronald Beery, an area engineer for relator, made arrangements to appear before the city council and present the light company's proposal. On two occasions he met with the city council and explained the proposal, which was that the company would purchase the city's distribution system for $6,500.00, and the contract for the sale of electric energy to the city at wholesale, as embodied in Ordinance No. 60--1, passed September 22, 1960, would be cancelled and the company would be granted a twenty year franchise to operate the distribution system and sell electric energy at retail in the city.
The mayor and members of the board of aldermen testified that they understood that this was to be one proposal to be set forth in one ordinance; that the sale of the distribution system and the granting of the franchise were interdependant and that one would not be accomplished without the other. Mr. Beery appeared at a regular city council meeting on July 6, 1964, with two ordinances, which he had prepared and which are designated herein as Ordinance No. 108 and Ordinance No. 109. He explained that Ordinance 108, providing for the franchise, required approval of the voters by only a simple majority, whereas Ordinance No. 109, providing for the sale of the distribution system, required approval by two-thirds of the voters voting thereon, and, for this reason, it was necessary to use two ordinances rather than one.
There are conflicts between the testimony of Beery, on the one hand, and the city officials, on the other, as to exactly what happened at this meeting but in the view we take of the case, they need not be set out in detail. The ordinances were thoroughly discussed and it appeared that three of the aldermen, Heinrichs, Miller and Owens favored submitting the matter to a vote of the people and alderman Coffey was opposed. Such a motion was made and seconded. Beery testified there was a vote by a show of hands with three favorable votes and Coffey not voting. The city officials testified there was no vote, but, as was usual they all knew how everyone else stood and they did decide that they would have an election. At the close of the meeting the mayor signed both ordinances in the presence of all of the aldermen and gave them to Beery.
Mrs. Miller (the wife of Alderman Miller) was the city clerk. She was not present at this council meeting. It appears that until shortly before this meeting, the city of Easton had not kept any written journal of its proceedings as required by Section 79.150 (). Not long prior to this date, Mrs. Miller had become city clerk, and she had adopted the practice of writing up the minutes of the meetings in the journal from what her husband (Alderman Miller) told her transpired at the council meetings when he came home from such meetings. The council never read or approved the minutes of its previous meetings as shown in the journal.
After the council meeting of July 6, 1964, Mr. Beery accompanied Mr. Miller to his home, where he secured the signature of Mrs. Miller, the city clerk, on both ordinances. Beery dictated the minutes of the council meeting to Mrs. Miller, who wrote them up in the journal the next morning. Beery says the clerk requested assistance; Mrs. Miller says Beery insisted on dictating the minutes so they would be exactly right. Beery testified that the minutes, as they appeared in evidence from the journal, were as he dictated them, except they did not show the vote of the aldermen on the ordinances. Mrs. Miller insisted that the minutes appeared in the journal exactly as Beery dictated them; that he did not tell her how anyone voted. She testified that 'they say' there was no call for a vote at the meeting and that is why she did not record a vote in the minutes.
On the basis of the foregoing evidence the trial court found that Ordinance 108 had been voted on and approved by the council by a vote of three to one, and made its alternative writ of mandamus peremptory commanding the city clerk to record in the journal of the board of aldermen of the city of Easton the final passage of such ordinance by a vote of 'aye' by Aldermen Heinrichs, Owens and Miller and a vote of 'nay' by Alderman Coffey.
An election was held in the city of Easton on August 11, 1964, pursuant to the call therefor contained in Ordinances No. 108 and No. 109. At this election there were two ballots, one for each ordinance. Voting was had in the two regular wards of the city, being the east and west wards. The west ward voted at the fire station, which was also the city hall. The judges and clerks of the election in this ward testified that when the polls closed, they left the poll book, tally sheet and all other election materials and the ballot box on the table in the fire station in the presence of and pursuant to the instructions of Alderman Coffey. The polling place for the east ward was in a private home. The mayor picked up the ballot box, poll book and tally sheet from this ward and took them to the fire station, where he placed them on the table with the material from the west ward.
It had been previously arranged that a meeting of the mayor and board of aldermen would take place at 7:30 P.M., August 11, 1964, immediately after the close of the polls, for the purpose of declaring the result of the election. Mr. Beery was present at this meeting. He testified that the mayor and all aldermen, except Heinrichs, were also present. Alderman Owens testified that he was not present at this meeting and the other city officials corroborated this.
Beery testified that at the meeting he asked the mayor for the result of the election. The mayor checked the ordinances to see which required a two-thirds majority and which only required a simple majority and then gave Beery the result of the election in both wards on both ordinances. Beery had theretofore prepared on ordinance declaring the result of the election, and he wrote the results of such election, as they were given to him by the mayor on the proposed Ordinance 110. Beery testified that these results as to Ordinance 108 were: in the east ward, 25 yes and 15 no, in the west ward, 32 yes and 31 no, making a total vote on Ordinance 108 of 57 yes and 46 no. He also testified that the total vote as given to him by the mayor on Ordinance 109 was: yes 60, no 43. Beery testified that the mayor had these figures on a piece of paper or tablet, but that he could not see exactly what it was. Beery asked the mayor and board of alderment to adopt his purported Ordinance 110 declaring the result of the election on Ordinance 108 to be that the ordinance granting the franchise to the company had passed. No one would make such a motion; the aldermen saying that since Alderman Heinrichs had made the original motion they would wait until he returned from vacation to make this motion. Beery stated that the mayor told him he would not sign any legal paper, but that he would write the results of the election in long hand on a piece of paper and sign it. This offer was declined by Beery. It was then agreed that the council would meet again on August 17, 1964, when Alderman Heinrichs would be back. On August 16, 1964, Beery received a telephone call from the mayor advising him not to come to the meeting on August 17, but if he had any further business with the city, he was to contact the city's attorney. Beery testified that none of the election materials were at the fire station when he met with the city officials; that he did not see any ballots, tally sheets, poll books or ballot boxes on the table at the fire station during the meeting.
The mayor and Aldermen Miller and Coffey testified as to this meeting on the evening of August 11, 1964. The mayor testified that when h...
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...duties in canvassing votes or returns;" the duties included issuing certificates of election. In State ex re. St. Joseph Light & Power Co. v. Parks, 409 S.W.2d 199, 209 (Mo.App.1966), however, the court found mandamus inappropriate, but only because the election returns had been lost before......
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