State v. Allen

• Decision Date: 09 December 1903
• Citation: 77 S.W. 868,178 Mo. 555
• Parties: STATE ex rel. TOWN OF CANTON et al. v. ALLEN, State Auditor.
• Court: Missouri Supreme Court

77 S.W. 868

178 Mo. 555

STATE ex rel. TOWN OF CANTON et al. v. ALLEN, State Auditor.

Supreme Court of Missouri.

December 9, 1903.

MUNICIPAL CORPORATIONS—CHARTER—ELECTRIC LIGHT PLANT—PUBLIC AND PRIVATE LIGHTING—SPECIAL ELECTION—RESOLUTION —ORDINANCE—PROPOSITION TO VOTERS—AMBIGUITY —CONSTITUTIONAL LAW—STATUTES.

1. Under Rev. St. 1899, § 6276 (Laws 1873, p. 210), providing that the legislative authority of cities of a certain class shall "order" an election to be held for the purpose of testing the sense of the qualified voters on propositions to become indebted, or to increase the debt thereof, an order or resolution passed with the same formalities as an ordinance is by the city's charter required to be passed is sufficient for the purpose.

2. A resolution of a city council ordering an election for the purpose of testing the sense of the qualified voters on a proposition to increase the debt of the city, requiring 15 days' previous notice of the election, is complied with by publication of the notice on the 4th, 11th, and 18th of the same month in a weekly newspaper; 19 days having elapsed from the time of the first insertion and the election.

3. The proposition submitted for the purpose of testing the sense of the qualified voters of a city was to increase the debt by issuing bonds for the purpose of constructing, maintaining, and operating or purchasing an electric light plant to supply the city and all persons therein with light; thereby authorizing the town to increase its debt by issuing bonds. Held, that an objection that this was equivalent to two propositions—one, to increase the debt by issuing bonds for the purpose of constructing, maintaining, and operating an electric light plant, and the other, to increase the debt by issuing bonds for the purpose of purchasing an electric light plant already in the town—and that the two propositions, being submitted together, made it impossible for any voter, by his vote, to say which of the two propositions he favored or opposed, is without merit.

4. A resolution of a city council providing for a special election to test the sense of the qualified voters thereof on a proposition to increase the city's debt designated a voting place in each of the four wards of the city. There was an ordinance then in force requiring all special elections to be held in one place, to be designated by the mayor. Held a mere irregularity, which would not invalidate the election, or discredit the bonds issuable as the result of such election.

5. A city ordinance ordering the issuance of bonds, and providing that the bonds are to be issued and the taxes levied and collected for the purpose of enabling the city to erect, maintain, and operate or purchase an electric plant for furnishing light to all persons and corporations residing and doing business therein, is not in contravention of Const. art. 10, § 1, providing that the taxing power may be exercised by municipal corporations for corporate purposes; nor section 3, limiting the levying and collection of taxes for public purposes only; nor section 10, empowering the General Assembly to vest in cities the power to assess and collect taxes for municipal purposes.

6. Act March 23, 1897 (Laws 1897, p. 49), entitled "An act to enable cities, towns and villages operating under special charters and containing ten thousand inhabitants or less to issue bonds for" various specified purposes, and also for the purpose of constructing or purchasing waterworks and electric light plants, is not in contravention of Const. art. 4, § 28, providing that no bill, except general and free public school appropriation bills, shall contain "more than one subject, which shall be clearly expressed in the title."

7. Rev. St. 1899, § 6275, granting power to cities to purchase or erect and maintain electric plants for public and private lighting, is not violative of Const. art. 2, § 20, forbidding the taking of private property for private use.

8. Rev. St. 1899, § 6275, granting power to cities to purchase or erect and maintain electric plants for public and private lighting, is not violative of Const. art. 10, § 3, requiring taxes to be uniform.

9. Rev. St. 1899, § 6275, granting power to cities to purchase or erect and maintain electric plants for public and private lighting, is not violative of Const. U. S. art. 1, § 10, nor Const. Mo. art. 2, § 15, forbidding the passage of any law impairing the obligation of contracts, though an ordinance authorizing the issue of bonds for such purpose is passed while private persons, to whom had been granted an exclusive franchise, were operating a plant for that purpose, and the franchise had several years to run.

10. Rev. St. 1899, § 6275, granting power to cities to purchase or erect and maintain electric plants for public and private lighting, and authorizing the exercise of the right of eminent domain, is not violative of Const. art. 2, § 20, forbidding the taking of private property with or without compensation, unless by consent of the owner, except for private ways of necessity, drains, and ditches.

11. Rev. St. 1899, § 6275, granting power to cities to purchase or erect and maintain electric plants for public and private lighting, and authorizing the acquisition of property for the purpose by purchase or the exercise of the right of eminent domain, is not violative of Const. art. 2, § 21, forbidding the taking of private property for public use without just compensation.

12. Rev. St. 1899, § 6275, granting power to cities to purchase or erect and maintain electric plants for public and private lighting, is not violative of Const. art. 2, § 30, providing that no person shall be deprived of property without due process of law.

In Banc. Mandamus by the state, on the relation of the town of Canton and others, against Albert G. Allen, state auditor. Writ granted.

Arthur Hilbert and W. M. Hilbert, for relator. E. C. Crow, Atty. Gen., Sam B. Jeffries, and R. W. Ray, for respondent.

BURGESS, J.

On the 15th day of June, 1903, the relators filed in this court their petition for a writ of mandamus directed to Albert O. Allen, state auditor of Missouri, commanding him to make or cause an examination to be made in order to ascertain whether the law was complied with in the issuance of certain bonds to the amount of $10,000, issued by said city, for the purpose of constructing, maintaining, operating, or purchasing an electric plant to supply the town of Canton, and all persons and parties therein, with light, and if upon such examination it be found the law has been complied with in the issuing of said bonds, to register the same, and to certify by indorsement thereon that all the provisions of the laws of the state authorizing their issue have been complied with. The defendant Allen waived the issuance of the writ, and made his return thereto.

The relators, in their petition, stated that the town of Canton now is, and was at the time of all the transactions therein mentioned, a municipal corporation containing less than 10,000 inhabitants, organized under a special charter—an act of the General Assembly of the state of Missouri approved March 19, 1973 (Laws 1873, p. 208); that F. W. Benbow is mayor of said town, and his co-relators are members of the board of trustees of said town; that the defendant, Albert O. Allen, is the auditor of the state, and as such, when bonds are voted and issued by municipal corporations for the purpose of constructing, maintaining, and operating or purchasing an electric plant to supply such city or town, and all persons and parties therein, with light, it was and is his duty, when the bonds are presented to him, with the proper proof that the law has been complied with in the issue of such bonds, to register them in a book or books provided for that purpose, and to certify by indorsement on such bond or bonds that all the conditions of the law authorizing their issue have been complied with.

"Your relators further state that, in pursuance with the authority given them by the laws of the state of Missouri, desiring to test the sense of the qualified voters of the town of Canton on a proposition to increase the indebtedness of the town by issuing ten thousand dollars in bonds for the purpose of constructing, maintaining, operating, or purchasing an electric plant to supply the town of Canton, and all persons and parties therein, with light, they caused fifteen days' previous notice to be given by publication in a newspaper printed and published in the town of Canton of an election to be held on the 23d day of September, 1902, for the purpose of testing the sense of the qualified voters of the town of Canton on a proposition to increase the bonded indebtedness of the town of Canton by issuing ten thousand dollars in bonds for the purpose of constructing, maintaining, and operating or purchasing an electric plant to supply the town of Canton, and all persons and parties therein, with light, which said order of notice was made on September 2, 1902, by the board of trustees, and approved by the mayor, a copy of said order is as follows: `It is hereby ordered by the board of trustees of the town of Canton, state of Missouri that a special election be held in the several wards in the town of Canton, county and state aforesaid, on the 2d day of September, A. D. 1902, to wit: First Ward, T. J. Maggard & Son's office; Second Ward, at the Canton House sample room; Third Ward, at the sheriff's office in courthouse; Fourth Ward, at Thomas W. Furlong's office; Fifth Ward, at Starr & Zahn's Lumber Company office—for the purpose of testing the sense of the qualified voters of said town of Canton upon a proposition to increase the debt of the town of Canton by issuing bonds of said town to the amount of ten thousand dollars for the purpose of constructing, maintaining, and operating or purchasing an electric light plant to supply said town of Canton, and all persons and parties therein,...