State v. Gordon

• Decision Date: 21 March 1911
• Citation: 233 Mo. 383,135 S.W. 929
• Parties: STATE ex rel. CITY OF CHILLICOTHE v. GORDON, State Auditor.
• Court: Missouri Supreme Court

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

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 return and also in his exceptions to the commissioner's finding of facts and conclusions of law, attacks the validity of the bonds on numerous grounds; but in his brief and oral argument before this court relies solely upon the alleged invalidity of the assessment by the relator city for the year 1908, and the unconstitutionality of the law under which he alleges these bonds were issued.

Frank W. Ashby, O. L. Smith, and Lewis A. Chapman, for relator. Frank Sheetz & Son and Lathrop, Morrow, Fox & Moore, for respondent.

BROWN, J. (after stating the facts as above).

Respondent's contention that there was no legal assessment of property in the city of Chillicothe for the year 1908 on which to base the bonds relator seeks to have registered is without merit, because by his return he admits that there was an assessment for that year in the sum of $1,520,000. The recital in respondent's return that there was an assessment of the property in relator city for the year 1908 is not an allegation of new matter by way of defense to this action, and is not put in issue by relator's reply, and therefore it stands admitted by the pleadings. [2] Relator's attempt to prove a larger assessment than $1,520,000 did not waive respondent's admissions in his return to the alternative writ. The bonds outstanding, together with the proposed issue, aggregating only $65,000, amount to less than 5 per cent. of the taxable property of said city, and are...