State v. Hackmann

• Decision Date: 25 April 1918
• Docket Number: No. 19095.,19095.
• Citation: 203 S.W. 960,274 Mo. 551
• Parties: STATE ex rel. CITY OF MARSHALL v. HACKMANN. State Auditor.
• Court: Missouri Supreme Court

203 S.W. 960

274 Mo. 551

STATE ex rel. CITY OF MARSHALL v. HACKMANN. State Auditor.

No. 19095.

Supreme Court of Missouri. In Banc.

April 25, 1918.

Rehearing Denied May 17, 1918.

1. MANDAMUS—DISCRETION.

Issuance of mandamus does not rest in the unregulated discretion of the court, but it is as much error to refuse it when warranted by all the facts and circumstances as it would be to refuse a lawful remedy for any other infracted legal right.

2. MUNICIPAL CORPORATIONS—BONDS FOR PURCHASE OF ELECTRIC LIGHT PLANT.

The authority of cities of the third class to issue bonds for the purchase of electric light plants, given by Rev. St. 1909, § 9914 (re-enacted by Laws 1911, p. 352), and sections 9917, 9904, 9544, is not limited by Const. art. 10, § 12a, of which section 9664, Rev. St. 1909, is a practical rescript, as to increased debt limit for certain purposes, to cases where the indebtedness to be secured is for an amount beyond the 5 per cent. originally permitted to be incurred and within an additional 5 per cent.; but the constitutional provision was intended to give such cities the right to exercise the powers therein granted in any case where the indebtedness, whatever its amount, did not exceed the aggregate of 10 per cent. therein specified.

3. CONSTITUTIONAL LAW — CONSTRUTION.

Provisions of the Constitution, like statutes dealing with a single subject, must be interpreted according to the plain meaning of the language employed and the paramount purpose of its framers to provide a rational, congruous, and symmetrical chart of government.

4. MUNICIPAL CORPORATIONS — ELECTION TO DETERMINE ISSUE CF ELECTRIC LIGHT PLANT BONDS.

Rev. St. 1909, § 9545, providing that a municipality may order a special election to submit to voters the question of the issuance of electric light plant bonds, etc., section 9546, prescribing form of ballots, and section 9145, as to date of general election in cities of the third class, do not require that such special election be held in such cities on the date fixed for general elections; the provision as to such elections that they shall be held and the judges thereof appointed as in case of other electi ms referring to the manner and not time of holding them.

5. MANDAMUS — SCOPE OF INQUIRY —" REGISTRATION OF BONDS.

In view of Rev. St. 1909, § 1275, as to registration of municipal bonds and effect of registration, whether or not voters at election to determine the issuance of such bonds were disqualified by conviction of crime or nonresidency cannot be inquired into in a mandamus proceeding to compel registration of bonds.

6. MUNICIPAL CORPORATIONS—REGISTRATION OF BONDS.

Under such statute, upon presentation of municipal bonds to the state auditor and a prima facie showing made that they have been issued in compliance with law, it is his specific duty to register them as required by law.

Faris, J., dissenting.

Original proceeding for mandamus by the State of Missouri, on the relation of City of Marshall, against George E. Hackman, State Auditor. Alternative writ made permanent.

Richard L. Goode, of St. Louis, and William T. Bellamy and Virgil V. Huff, both of Marshall, for relator. Frank W. McAllister, Atty Gen., S. P. Howell, Asst. Atty. Gen., and Fordyce, Holliday & White, of St. Louis, for respondent.

BOND, J.

I. In this case it is stipulated that the petition for mandamus is to be treated as and for the alternative writ ordered by this court. The object of the suit is to compel the state auditor to register bonds of the city of Marshall for $75,000 which were authorized at a special election held on June 26, 1916, to raise funds wherewith to build or buy an electric light plant to serve the city and its inhabitants. The case was referred to a commissioner to take proof and report, which not having been made, a stipulation dispensing therewith and submitting the case on the evidence adduced before the commissioner was filed March 4, 1918, with leave to furnish briefs thereafter.

It is conceded in the brief of respondent that the narrative of the evidence in relator's brief is, in the main, fair and correct. It is however, insisted that a peremptory writ should not issue. While many grounds for that contention are set forth in the return of respondents, only those urged in his brief and written argument need be ruled. In substance shad are: First, that the city of Marshall had no statutory authority to issue bonds to purchase an electric plant; second, that the special election authorizing the bonds was not held on the day required by law; third, that the election was illegal because not held in conformity with the requirements of the Australian ballot system. R. S. 1909, §§ 5889-5923, inclusive, and section 9921.

The foregoing are the only objections to the registration of the bonds relied on in the brief. They will be considered in order. Before doing this, however, it is well to note a preliminary point urged in the brief of respondent, that the writ invoked is not one of right, but is one which is rested in the discretion of the court. As to this contention, it need only be said that the true principle is that mandamus is a civil remedy provided by law in certain cases, from which it necessarily follows that it is as much error to refuse it when warranted by all the facts and circumstances held in judgment as it would be to refuse a lawful remedy for any other infracted legal right. Such a refusal in either case would be an abuse of judicial power and discretion, and would be correctable if an appeal or writ of error would lie. The specific redress provided by law for a violation of civil rights is ex debito justitiæ, and is not left to the unreviewable discretion of any court or judicial officer; for that would be repugnant to the spirit and philosophy of the law and genius of free government, neither of which could tolerate autocracy of administration in any sphere of service. In forms of government of which ours is the most advanced protagonist, the sole repository of supreme power is the law of the land, which decides only after a hearing and trial and must decree even-handed justice to every human being. Such a state could not exist if its legal or governmental polity were vested in the unregulated discretion of any agent. In a free country a judge may apply, he cannot make, the law.

II. Recurring to the vital questions in the case, the relator is a city of the third class and is invested with express" statutory authority "to erect or acquire by purchase or otherwise * * * electric light and power plants * * * to provide for the erection or the extension of the same by the issue of bonds therefor and any such city * * * which may own * * * or which may hereafter acquire by purchase * * * any of the plants, systems or works mentioned in this section, is hereby authorized and empowered to establish * * * a board of public works" to take charge of and exercise control over such public utilities. R. S. 1909, §§ 9914, 9917; later re-enacted in substance, Laws 1911, p. 352.

In addition to the express power given to cities specified in the section (R. S. 1909, § 9914; Laws 1911, p. 352), the power to erect or buy electric light plants is given to all cities of the state by a distinct provision of the statutory law (see R. S. 1909, § 9904). To exercise these specific and general powers, statutory and constitutional provisions have been enacted and adopted which, by interrelation, cover the entire subject and prescribe the method by and the extent to which the municipalities shall become indebted. When read in pari materia these sections plainly show that the cities, towns, and villages of the state may incur indebtedness for purchasing as well as for constructing electric plants. For example: Section 9544 of the present revision authorizes them to become indebted for charter purposes, or when authorized so to do "by any general law of the state," etc. And section 9904, by a general law of the state, empowers them "to acquire by purchase" electric plants. Hence it is clear that the two sections of the statutes dovetail with each other and afford full statutory power on the part of relator to contract the indebtedness in question, either to build or to buy an electric plant. Again, section 9664 is a practical rescript of section 12a of article 10 of the Constitution (State ex rel. v. Wilder, 200 Mo. loc. cit. 105, 98 S. W. 465), and was intended to enlarge the power granted (in section 12, article 10, of the Constitution) municipalities to acquire electric plants and all other public utilities. This amendatory provision of the Constitution provides for increasing the limit of indebtedness authorized by the original provision to an additional 5 per cent. of the assessed value of the taxable property of the cities above the previous 5 per cent. permitted in the former provision of the Constitution. The latter provision of the Constitution further amends the former by providing that the indebtedness thus permitted to be increased shall be usable "for the purpose of purchasing or constructing electric or other light plants."

It would be a narrow, if not absurd, view of this amendment to hold that it did not intend to authorize the creation of an indebtedness for purchasing such a plant, unless the city in order to do so would have to avail itself of the 5 per cent. additional taxation which the amendment gave it...