State v. Hackmann

• Decision Date: 20 November 1922
• Docket Number: No. 24117.,24117.
• Citation: 295 Mo. 417,245 S.W. 554
• Parties: STATE ex rel. RAY COUNTY et al. v. HACKMANN, State Auditor.
• Court: Missouri Supreme Court

245 S.W. 554

295 Mo. 417

STATE ex rel. RAY COUNTY et al. v. HACKMANN, State Auditor.

No. 24117.

Supreme Court of Missouri, in Banc.

November 20, 1922.

Original proceeding in mandamus by the State, on the relation of Ray County and others, against George E. Heckmann, State Auditor, to require him to register road bonds. Writ issued.

George W. Lavelock, George Crowley, and Eugene Farris, all of Richmond, and Charles & Rutherford, of St. Louis, for relators.

Lawson & Hale, of Liberty, amici curiæ.

DAVID E. BLAIR, J.

This is an original proceeding in mandamus, whereby relators seek to require the state auditor to register one of a series of bonds issued by Ray county for the stated purpose of grading, constructing, paving, or macadamizing paved, graveled, macadamized, or rock roads and necessary bridges and culverts in said county, as provided in section 10745, R. S. 1919.

Respondent waived the formal issuance of our alternative writ and has filed his demurrer to the petition, which, by stipulation of parties, is taken as and for the writ. Said demurrer goes solely to the sufficiency of the petition, in that it does not state facts sufficient to entitle relators to the relief sought. The facts well pleaded in the petition are therefore taken as admitted.

Relators Patton, Bowman, and Carroll are judges of the Ray county court. Respondent is auditor of the state of Missouri. The boundary line between Ray county and Lafayette county is the middle of the main channel of the Missouri river. The county courts of Ray county, upon petition in form not questioned here, called a special election to vote upon a proposal to issue $192,000 of the bonds of said county. The purpose, stated in the petition, the order of the county court, and the notice, followed the language used in section 10745. A statement signed by individual members of the county court and entered of record by them is set out in the petition, from which it appears that prior to the election they solemnly declared it to be their intention to use the funds provided from the sale of such bonds, if authorized at such election, for the payment of Ray county's quota of the cost of a highway bridge across the Missouri river at Lexington and for no other purpose. The election was held, and more than two-thirds of the votes were cast in favor of the proposition to issue such bonds. The county court made an order on September 6, 1922, authorizing the issuance of $192,000 of the road and bridge bonds of the county. It is not contended that this issue, added to existing indebtedness, exceeds the limit on indebtedness fixed by the Constitution.

On September 30, 1922, G. H. Pigg and a number of other persons describing themselves as taxpayers filed a petition in the circuit court of Ray county reciting the proceedings of the county court in reference to the aforesaid bond issue and the election to authorize the same, and praying that said election be declared illegal and void and for a determination by said court that said proposition did not "receive the required two-thirds majority, and further praying that the judges of the county court (who are relators here) and the county clerk and county treasurer be restrained and enjoined from executing, issuing, and delivering said bands. A similar suit was filed by Arch M. Riffe and others, praying for an injunction against the county judges and county clerk and the county treasurer of said county to prevent the use of the proceeds of the bonds voted at said election in the construction of the bridge aforesaid.

It is alleged in relators' petition that one of said bonds was presented to the auditor for registration, and that he refused such registration solely on the ground of the pendency of the two suits above referred to, challenging the validity of said bond issue. Counsel for plaintiffs in said injunction suits has filed brief as amicus curiæ opposing the relief sought by relator.

The want of jurisdiction of the Ray county circuit court to declare the election illegal on the ground that persons were permitted to vote thereat who were not legal voters, and that fraud was committed at the polls by election officials in the casting up and counting of the votes, has been fully settled by the decision of this court in banc in the case of State ex rel. Wahl v. Speer, 284 45, 223 S. W. 655. No provision for contesting the election to vote upon a proposition to create a county indebtedness has been provided by law. In so far, therefore, as the petitions in the injunction suits attack the right of relators to issue said bonds because of anything which happened at the election itself or the counting or casting up of votes and certifying the result thereof, they afford no reason justifying the respondent in his refusal to register said bonds. Counsel who filed said injunction suits have apparently abandoned this ground of attack upon the bonds, since the question is not discussed in the brief filed here.

It is alleged in substance in one or both of the petitions in the injunction suits that no legal and sufficient order was made by the county court calling said election and that the notice was not sufficient in form. Among other things, section 10745, R. S. 1919, provides that—

"Said order and the notice of election shall state the amount of bonds to be issued and the date of the election, and that the proceeds of the bonds are to be used for the grading, construction, paving or maintaining of paved, graveled, macadamized or rock roads and necessary bridges and culverts in the county. The county clerk shall give notice of said election by causing the order providing for the election to be published once a week in four separate issues of each of two newspapers published in the county, the last insertion to be made prior to the date of said election."

The order made by the county court on August 11, 1922, is as follows:

"In the matter of a petition requesting the county court to order an election submitting a proposition to vote bonds to construct certain roads and bridges.

"Now on this day come taxpaying citizens of Ray county, Mo., to the number of 242, and file with the clerk of this court, and present to this court, their petition asking that the proposition be submitted to the qualified voters of the county of Ray, state of Missouri, to issue the bonds of said county to the amount of $192,000, for the purpose of grading, constructing, paving, or maintaining paved, graveled, macadamized, or rock roads, and necessary bridges and culverts in said county, as authorized by article 5. c. 98, Revised Statutes of Missouri 1919, and also request that this court order a special election to be held in said county for said purpose within 45 days after making of such order, and to determine whether or not the bonds of said county shall be issued and sold to the amount aforesaid, and not in excess thereof, and the proceeds thereof used for the purpose aforesaid. The said petition coming on to be heard, the same is seen, considered, and examined, and the court finds that the said petition is signed by more than 200, to wit, 242, of the taxpaying citizens in the county of Ray, state of Missouri, and that said petition is in due and proper form.

"It is considered and ordered by the court that a special election be held in the said county on Friday, the 8th day of September, 1922, which day is within 45 days from this date, that said election shall be held in the same manner that general elections are held, and no person shall be permitted to vote at such election that would not be qualified to vote at a general election were such an election held on that day.

"It is further ordered that said election shall he held at the polling places in the voting precincts in said county, to wit, Richmond No. 1, Richmond No. 2, Richmond No. 3, Richmond No. 4, Rayville, Henrietta, Sunshine, Camden, Orrick, Elkhorn, New Garden, Vibbard, Lawson, Elmira, Knoxville, Taitsville, Millville, Georgeville, Tinney's Grove, Russellville, Rockingham, Hardin, and Morton.

"It is further ordered that the clerk of this county court shall give notice of said election by causing a certified copy of this order to be published once a week in four separate issues of the following named newspapers, to wit: Richmond News, Richmond Conservator, Richmond Missourian, Hardin News, Lawson Review, and Orrick Times."

The recitals in the second paragraph of the purported order entered of record state the substance of the petition therein referred to and set forth all the things required by section 10745 to be in said order, except the date of the election. The county court found the petition to be in due and proper form. The third paragraph of said purported order considered, and ordered that "a special election be held" and fixed the date therefor as Friday, September 8, 1922, a date within 45 days of the date of the order, as required by said section. As we gather it from the petitions filed in the Ray circuit court and from, the brief of amicus curiæ the contention is that the recitals in the second paragraph of the purported order are not to be considered as part of the order proper, and that the county court should have specified, following the words "considered and ordered" in the third paragraph, that the purpose of the proposed bond issue, which was being voted upon at such special election, was as set forth in the second paragraph, and that the proceeds of such bond issue were to be used for such purpose only.

Section 10746 requires that the proceeds of such bonds shall be paid to the county treasurer and used for the purposes set forth in section 10745, and for no other purpose. Clearly the special election provided for in paragraph 3 could not possibly have been understood by any person entitled to vote at said election as being called for any other purpose than the purpose stated in paragraph 2, and that the proceeds of the bond issue were to be used for...