State v. Gordon

CourtMissouri Supreme Court
Writing for the CourtBrown
Citation233 Mo. 383,135 S.W. 929
Decision Date21 March 1911
PartiesSTATE ex rel. CITY OF CHILLICOTHE v. GORDON, State Auditor.
135 S.W. 929
233 Mo. 383
STATE ex rel. CITY OF CHILLICOTHE
v.
GORDON, State Auditor.
Supreme Court of Missouri.
March 21, 1911.

1. MANDAMUS (§ 163)—DEMURRER—ABANDONMENT.

A defendant in mandamus abandons his demurrer to the petition by filing a return to the alternative writ.

2. MANDAMUS (§ 164)—ALTERNATIVE WRIT—RETURN—ADMISSIONS—WAIVER.

In mandamus to compel respondent, as State Auditor, to register and certify a city bond issue, respondent's admission in his return to the alternative writ that there was an assessment for a given year in a certain sum was not waived by relator's attempt to prove a larger assessment.

3. STATUTES (§ 120)—TITLE AND SUBJECT OF ACT—CONSTITUTIONAL PROVISIONS.

Since the title of Laws 1897, p. 49, enabling cities, etc., to issue bonds for the purpose of constructing or purchasing electric light plants, etc., purports to specifically enumerate all the powers intended to be granted, but does not contain the words "to maintain and operate," such powers are by necessary implication excluded, and hence so much of section 3 of said act (now Rev. St. 1909, § 9594) as purports to grant power to issue bonds to maintain and operate an electric light plant conflicts with Const. art. 4, § 28, requiring the subject of each bill to be clearly expressed in its title.

4. STATUTES (§ 152)—REPEAL.

That Laws 1897, p. 49, contained an emergency clause reciting that there existed no laws authorizing cities to issue bonds as therein provided, constituted merely an expression of belief in the nonexistence of any similar statute, and there being nothing indicating a legislative intent to repeal other laws on the same subject, if any existed, it did not have that effect.

5. STATUTES (§ 120)—TITLE AND SUBJECT OF ACT.

Laws 1891, p. 67 (now Rev. St. 1909, § 9904), conferring power on cities to erect, maintain, and operate electric light plants, was amended by Laws 1897, p. 56, entitled "An act to amend an act entitled `An Act to amend R. S. 1889, c. 31, art. 1, entitled "Cities and towns, miscellaneous provisions and general powers," by adding a new section thereof to be numbered 1946a,' etc." Held, that the title to the amendatory act was sufficient to legalize the grant of power to erect, maintain, and operate an electric light plant; that power being expressly conferred by the act of 1891, and a reference to that act in the title of the amendatory act constituting a sufficient title for the latter.

6. MUNICIPAL CORPORATIONS (§ 917)—ORDINANCES —"CONSTRUCT"—"ERECT."

Where a statute authorized a city to issue bonds to erect an electric light plant, the use of the word "construct," instead of "erect," in city

[135 S.W. 930]

ordinances providing for the issuance of bonds was immaterial; the word "erect" meaning "to construct."

In Banc. Mandamus by the State, on the relation of the City of Chillicothe, against John P. Gordon, State Auditor. Peremptory writ awarded.

This is an original proceeding by mandamus to compel the respondent, as State Auditor, to register and certify a $50,000 bond issued by the city of Chillicothe, Mo.

From the evidence taken before Hon. Homer Hall, special commissioner, and the admissions of the parties, we find that Chillicothe is a city organized under a special charter; has a population of 8,000; an assessed valuation for the year 1908 of $1,520,000; and an outstanding bonded indebtedness of $15,000. On December 23, 1909, said city submitted to its qualified voters a proposition to increase its indebtedness by the issue of $50,000 of additional bonds, for the purpose of "constructing, maintaining, and operating an electric light plant"; and more than two-thirds of the votes cast at the election to determine said proposition were in favor of said bond issue. The special commissioner found that the bonds were legally issued, and recommended that a peremptory writ of mandamus issue to compel respondent to certify and register same. [1] Defendant filed a demurrer to plaintiff's petition, but abandoned same before it was passed upon by this court, by filing his return to the alternative writ. State ex rel. McEntee v. Bright, 224 Mo., loc. cit. 524, 123 S. W. 1057, 135 Am. St. Rep. 552. Respondent, in his...

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19 practice notes
  • Hammett v. Kansas City, No. 38363.
    • United States
    • United States State Supreme Court of Missouri
    • May 4, 1943
    ...S.W. 576; State ex rel. St. Louis County v. Gordon, 268 Mo. 713, 188 S.W. 160; State ex rel. City of Chillicothe v. Gordon, 237 Mo. 383, 135 S.W. 929; State v. Fulks, 207 Mo. 26, 105 S.W. 733; State ex rel. Steele v. Baker, 129 Mo. 482, 39 S.W. 924; Kansas City v. Payne, 71 Mo. 159; State e......
  • State ex rel. Penal Institutions v. Becker, No. 31674.
    • United States
    • United States State Supreme Court of Missouri
    • March 15, 1932
    ...thereto requires specific mention of such purpose in the title of the act. State ex rel. v. Gideon, 277 Mo. 356; State ex rel. v. Gordon, 233 Mo. 383; Vice v. Kirksville, 280 Mo. 348. (6) If a section is to be amended the title should give notice of the amendment, and if a new section is to......
  • State v. Hedrick, No. 23106.
    • United States
    • United States State Supreme Court of Missouri
    • April 3, 1922
    ...107 Mo. 1, loc. cit. 30, 17 S. W. 646, 14 L. R. A. 846; 1 Story, Constitution, § 451; State ex rel. City of Chillicothe v. Gordon, 233 Mo. 383, 387, 135 S. W. 929; State v. Crites, 241 S.W. 428 277 Mo. 194, 209 S. W. 863; Woodward Hardware Co. v. Fischer, 269 Mo. 271, 190 S. W. 576; Berry v......
  • State ex rel. Transport Mfg. Co. v. Bates, No. 41456.
    • United States
    • United States State Supreme Court of Missouri
    • November 14, 1949
    ...634, 71 S.W. 1011; State ex rel. v. Wiethaup, 231 Mo. 449, 133 S.W. 329; State v. Rawlings, 232 Mo. 544, 134 S.W. 530; State v. Gordon, 233 Mo. 383, 135 S.W. 929; State v. Hurley, 258 Mo. 275, 167 S.W. 965; State v. Sloan, 258 Mo. 305, 167 S.W. 500; State v. McEniry, 269 Mo. 228, 190 S.W. 2......
  • Request a trial to view additional results
19 cases
  • Hammett v. Kansas City, No. 38363.
    • United States
    • United States State Supreme Court of Missouri
    • May 4, 1943
    ...S.W. 576; State ex rel. St. Louis County v. Gordon, 268 Mo. 713, 188 S.W. 160; State ex rel. City of Chillicothe v. Gordon, 237 Mo. 383, 135 S.W. 929; State v. Fulks, 207 Mo. 26, 105 S.W. 733; State ex rel. Steele v. Baker, 129 Mo. 482, 39 S.W. 924; Kansas City v. Payne, 71 Mo. 159; State e......
  • State ex rel. Penal Institutions v. Becker, No. 31674.
    • United States
    • United States State Supreme Court of Missouri
    • March 15, 1932
    ...thereto requires specific mention of such purpose in the title of the act. State ex rel. v. Gideon, 277 Mo. 356; State ex rel. v. Gordon, 233 Mo. 383; Vice v. Kirksville, 280 Mo. 348. (6) If a section is to be amended the title should give notice of the amendment, and if a new section is to......
  • State v. Hedrick, No. 23106.
    • United States
    • United States State Supreme Court of Missouri
    • April 3, 1922
    ...107 Mo. 1, loc. cit. 30, 17 S. W. 646, 14 L. R. A. 846; 1 Story, Constitution, § 451; State ex rel. City of Chillicothe v. Gordon, 233 Mo. 383, 387, 135 S. W. 929; State v. Crites, 241 S.W. 428 277 Mo. 194, 209 S. W. 863; Woodward Hardware Co. v. Fischer, 269 Mo. 271, 190 S. W. 576; Berry v......
  • State ex rel. Transport Mfg. Co. v. Bates, No. 41456.
    • United States
    • United States State Supreme Court of Missouri
    • November 14, 1949
    ...634, 71 S.W. 1011; State ex rel. v. Wiethaup, 231 Mo. 449, 133 S.W. 329; State v. Rawlings, 232 Mo. 544, 134 S.W. 530; State v. Gordon, 233 Mo. 383, 135 S.W. 929; State v. Hurley, 258 Mo. 275, 167 S.W. 965; State v. Sloan, 258 Mo. 305, 167 S.W. 500; State v. McEniry, 269 Mo. 228, 190 S.W. 2......
  • Request a trial to view additional results

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