State v. Hackman

• Decision Date: 05 March 1918
• Docket Number: No. 20433.,20433.
• Citation: 273 Mo. 670,202 S.W. 7
• Parties: STATE ex rel. CITY OF MEMPHIS v. HACKMAN, State Auditor.
• Court: Missouri Supreme Court

202 S.W. 7

273 Mo. 670

STATE ex rel. CITY OF MEMPHIS v. HACKMAN, State Auditor.

No. 20433.

Supreme Court of Missouri. In Banc.

March 5, 1918.

Rehearing Denied March 12, 1918.

Mandamus by the state of Missouri, on relation of the city of Memphis, against George E. Hackman, State Auditor. Peremptory writ ordered to issue.

See, also, 196 S. W. 1113.

Hudson V. Smoot, of Memphis, and Charles & Rutherford, of St. Louis, for relator. Frank W. McAllister, Atty. Gen., and John T. Gcse and S. P. Howell, Asst. Attys. Gen. (J. M. Jayne, of Memphis, of counsel), for respondent.

WALKER, J.

Mandamus is sought to compel respondent to register $25,000 of the bonds of relator. The alternative writ was waived, and return made to the petition as and for the writ.

On February 7, 1916, relator, a city of the fourth class, adopted an ordinance providing for the calling of a special election for February 28, 1916, to enable the qualified voters of said city to vote on a proposition which if carried would authorize the issuance of $25,000 of bonds to defray the expenses of erecting a municipal electric lighting plant. The ordinance in question is as follows:

"Be it ordained by the board of aldermen of the city of Memphis, Missouri, as follows: "Section 1. That a proposition to incur an indebtedness and issue bonds therefor by said city of Memphis, Missouri, to the amount of twenty-five thousand dollars ($25,000.00), for the purpose of erecting an electric lighting plant for said city to be owned and operated by said city, be submitted to the qualified voters of said city; that an election be held at the usual voting places in each ward of said city on the 28th day of February, 1916, to vote on said proposition; that notice of such election be given as required by section 9545 of the Revised Statutes of 1909; and that tickets or ballots be prepared and printed to be used at such election which shall be in the following form:

"For incurring indebtedness. Yes. For incurring indebtedness. No.

"The former of which shall be taken as a vote assenting to the creation of such debt and the latter as dissenting therefrom.

"Sec. 2. That said ordinance shall be in full force and effect from and after its passage and approval."

The notice of the election conforms to the requirements of the ordinance. After publication of the same, as required by the statute (section 9545, R. S. 1909), and the ordinances of February 7, 1916, and March 25, 1912, the election was held, and upon a canvass of the votes it appeared that 468 votes had been cast at said election, of which 315 were in favor of the incurring of the indebtedness and the consequent issuance of the bonds, and 153 were against same. Upon ascertaining the result of said election, the board of aldermen on February 29, 1916, adopted an ordinance declaring the result of said election in the words following:

"Be it ordained by the board of aldermen of the city of Memphis, Missouri, as follows:

"Section 1. That it is hereby declared that the called election for the purpose authorized has been held in accordance with the provisions of section 9545, Revised Statutes 1909, and that more than two-thirds of the legal voters voting at said election voted for the proposition of incurring the indebtedness and issuing bonds to the amount of $25,000.00 for the purpose of building and erecting an electric light plant in said city, to be owned and operated by said city, to wit: That at said election 408 votes were cast; 315 of said votes were cast in favor of incurring said indebtedness, and 153 votes were cast against the incurring of said indebtedness; the number of votes for the incurring of such indebtedness also being more than two-thirds of the qualified voters of said city voting at such election.

"Passed and approved February 29, 1916," etc.

After formally pleading the facts as above set forth, with allegations as to the official character of the respondent and his duty under the law in such cases, relator in its petition filed herein avers that, the premises considered, it was and is authorized and empowered to issue said bonds for the purpose aforesaid and to have them registered by respondent. It further alleges as reasons why the writ should issue herein:

That afterwards, in the 24th day of March, 1916, there was adopted by the board of aldermen of said city an ordinance which in terms provided for the issuance of $25,000 electric light bonds of the city, and the levy and collection of an annual tax to pay the principal and interest thereon, and which said ordinance recited all of the prior proceedings had by said board relative to the issuance of said bonds, the rate of interest on same, and their maturities, denominations, and date, and prescribing the form of bond and the coupons to be attached thereto, and authorizing the execution of the bonds by the signatures of the mayor and the city clerk indorsed thereon, and the execution of the coupons by the facsimile signature of the clerk of said board. That after the adoption and approval of the ordinance of March 24, 1916, relator contracted with a broker for the sale of said bonds at par, plus a premium of $290, and accrued interest from date of bonds to date of delivery to said purchaser. That on April 7, 1916, the Memphis Electric Light, Heat & Power Company, a corporation, filed its bill in equity in the circuit court of said county against this relator and its board of aldermen and mayor, seeking to restrain the issuance of said bonds, that it then having a plant in said city, had a contract with relator to furnish it and its inhabitants with electric light at' a reasonable price, and was ready and willing so to do; and, further, that relator had obligated itself to purchase its plant; and praying that relator be enjoined from constructing a plant in said city until relators comply with their said contract. That upon application of said Memphis Electric Light, Heat & Power Company, plaintiff in said suit, the venue was changed to the circuit court of Marion county, where, after some delay occasioned by the plaintiff, a trial was had resulting in the dismissal of its bill, and from this judgment plaintiff appealed to the Supreme Court, where said judgment was on July 14, 1917, affirmed. 196 S. W. 1113. That, by reason of the aforesaid suit, relator was prevented from consummating its contract for the sale of said bonds. That afterwards, on July 27, 1917, said Memphis Electric Light, Heat & Power Company filed a second bill in equity in the circuit court of Scotland county, Mo., seeking to restrain the issuance of said bonds, alleging the adoption of the ordinances hereinbefore pleaded, and that the notice of the election was not the same as the notice ordered to be given, and that the ballots furnished and cast were not in the form required by section 9546, R. S. Mo. 1909, and making in addition thereto numerous other averments as to the irregularity of said election, its consequent illegality, and the lack of authority of relator to issue the bonds here in controversy. (These allegations are not set out at length, because they are in substance, if not in form, all incorporated in respondent's return herein.) Relator further avers that said Memphis Electric Light, Heat & Power Company has protested to respondent, the State Auditor, against registering any bonds of the relator authorized by said election for the foregoing reasons, as alleged in its second bill in equity, and respondent now refuses to register such bonds for said reasons, and because said last-named suit is now pending in the circuit court of Scotland county.

Relator states, in addition, that on September 10, 1917, there was adopted by the relator an ordinance again declaring the result of said election, and further providing for the issuance of its bonds to the amount of $25,000 for the purpose aforesaid, which bonds were to be dated as of September 1, 1917, to bear interest at the rate of 6 per centum per annum, payable semiannually on the 1st days of March and September of each year, and that to that end interest coupons shall be attached to said bonds, and be of the denomination of $1,000 each, numbered from 1 to 25, both inclusive, payable to bearer, and to mature as set forth in relator's petition. This ordinance repealed all prior ordinances or parts of ordinances in conflict therewith. That in obedience to and in pursuance of said ordinance of September 10, 1917, the bonds of said city were prepared and executed and presented to respondent for registration, together with the sum of $25 in payment of the fees due therefor, but that respondent refused, and still refuses, to register said bonds for the reasons stated in said Memphis Electric Light, Heat & Power Company's second bill in equity. That, because of the pending litigation aforesaid, relator has been unable to sell its bonds subject to registration by respondent, and will not be able to sell same until this court has adjudicated the validity of the ordinances herein set out, the regularity of the election, and the legality of said bonds. That the total assessed valuation after equalization of all of the taxable property in said relator city, based upon ownership as of June 1, 1913, for taxes payable in 1914, was the sum of $876,469.54. That the total outstanding indebtedness of relator (the city of Memphis) of every kind, character, and description, exclusive of this proposed bond issue of $25,000, was, on the 28th day of February, 1916, the sum of $10,000. That relator is without remedy in the premises, save and except by the writ of mandamus. Wherefore this relator prays the court to issue and direct to respondent its alternative writ of mandamus, requiring and commanding him to accept the sum of $25 as and for his fee for registering said bonds, which relator now here tenders in court, and to require and command him to register the aforesaid bonds.

Respondent for his return, after formal...