State v. Wilder

• Decision Date: 02 April 1908
• Citation: 211 Mo. 305,109 S.W. 574
• Parties: STATE ex rel. CITY OF CENTRALIA v. WILDER, State Auditor.
• Court: Missouri Supreme Court

109 S.W. 574

211 Mo. 305

STATE ex rel. CITY OF CENTRALIA v. WILDER, State Auditor.

Supreme Court of Missouri.

April 2, 1908.

1. MUNICIPAL CORPORATION — ORDINANCES— VALIDITY—ENACTMENT—MUNICIPAL CENSUS.

A domestic census of a city of the fourth class is a nullity, under Rev. St. 1899, § 6300 (Ann. St. 1906, p. 3147), providing that the taking of a census shall be provided for by ordinance, where it does not appear that the ordinance was ever presented to or approved by the mayor or by any other official authorized to sign it, or that the bill passed by the council was passed over the mayor's veto, or that the bill was presented to the mayor and became an ordinance because of his nonaction, since under sections 5955 and 5956 (page 3009) the bill could only become an ordinance in one of those ways.

2. SAME.

The doctrine that statutory requirements, relating to mere form in the passage of ordinances, are directory only, unless the statute expressly or impliedly declares the ordinance void if the prescribed form be not pursued, does not cover irregularities in the failure of the record to show that the bill was either presented to or approved by the mayor, or passed over his objection or presented to him and became an ordinance by his nonaction, those being the only ways under the statute in which the bill could become an ordinance, since, where a mayor is made an integral part of the lawmaking body, his concurrence is essential to the validity of an ordinance.

3. SAME — SIGNATURE BY MAYOR — SUFFICIENCY.

Under Rev. St. 1899, § 5955 (Ann. St. 1906, p. 3009), providing for the signature, by the mayor, of ordinances of cities of the fourth class, a mayor's signature to the council journal reciting the passage of an ordinance is insufficient to show his approval of the ordinance.

4. CENSUS — MUNICIPAL CENSUS — RETURN — SUFFICIENCY.

A city's council minutes, showing that the report of a special census enumerator was received, that a committee to audit the account was appointed, and the adoption of a motion that the committee's report "be received of 2,040 names and 19 names were rejected as a warrant for 40.40" be drawn in the enumerator's favor, insufficiently show the census returns.

5. MUNICIPAL CORPORATIONS—SMALL CITIE— CONSTRUCTION OF OFFICIAL ACTS—BOND ISSUES.

Official acts of the plain, average citizens, composing the board of aldermen of cities of the fourth class, are not to be viewed hypercritically. They are entitled to every reasonable intendment to sustain them; but, when the Supreme Court is asked to sustain a $40,000 bond issue, in a small city already indebted more than

$18,000, every step leading up to the issue will be viewed with solicitude and jealousy.

6. MANDAMUS—WRIT DISCRETIONARY.

Mandamus does not lie as of course, but only in the court's sound discretion.

7. MUNICIPAL CORPORATIONS—BOND ISSUES— CENSUS.

That after a municipal census a city acted on the theory that it had 2,000 inhabitants in issuing dramshop licenses does not prevent a court from holding the census insufficient to sustain a bond issue, under a constitutional provision limiting authority to issue bonds to cities of 2,000 population or more.

In Banc. Mandamus proceeding by the state of Missouri, on the relation of the city of Centralia, against William W. Wilder, State Auditor. Alternative writ quashed, and peremptory writ denied.

E. C. Anderson and E. W. Hinton, for relator. The Attorney General and N. T. Gentry, for respondent.

LAMM, J.

This is an original proceeding, here by mandamus, to compel the State Auditor to register 40 waterworks bonds of the city of Centralia, "5-20's," each of the denomination of $1,000, the series numbered 1 to 40, inclusive, and bearing date June 1, 1907, payable to bearer, with interest payable semiannually at 5 per cent., evidenced by coupons attached. An alternative writ went, and respondent filed his return. It stands admitted by the pleadings that Centralia is a city of the fourth class. It is alleged in the writ, and denied by the return, that Centralia has a population of 2,000 or more. It is conceded that the assessed valuation of taxable property in said city, in the year 1905, as equalized in 1906, was $692,000; that its prior bonded indebtedness is $18,750; that the bonds in question were presented to the State Auditor for registration, and he refused to register them. Such issues were raised by the pleadings that an order was passed appointing Chas. J. Walker special commissioner, to take testimony and report to this court. Thereat our commissioner took testimony, and made report, finding the issues for relator, and, as the basis of it, files and submits here the evidence. The Attorney General filed exceptions to that report; and the cause was finally submitted on the admissions made, the facts found by the commissioner, and the exceptions thereto.

Among the questions made by the Attorney General are the following: (a) That Centralia does not have a population of 2,000 inhabitants; (b) that, the bonds in question being waterworks bonds, the Auditor is not required by statute to register them; (c) that the election held in the city of Centralia on February 26, 1907, authorizing the bonds, was irregular and void in certain particulars pointed out; (d) that the ordinance, providing for the levy and collection of an annual tax for the purpose of paying the interest as it falls due and to create a sinking fund for the payment of the principal, was insufficient, irregular, and void in particulars pointed out; (e) that the ordinances of said city, providing for the election and declaring the result, are invalid in other particulars pointed out; (f) and that the ordinance providing for the execution of said bonds, their registration and sale, was not passed and approved until June 13, 1907, whereas the bonds and coupons were executed on June 1, 1907, hence are invalid on that score. Other facts will appear in the opinion.

1. The first question made lies at the door of the case, viz.: Could Centralia issue the bonds in question? Attending to that question, it is conceded by briefs and oral arguments of learned counsel that, if Centralia did not have 2,000 inhabitants or more at the times in hand, then the city had no power to issue the bonds presented for registration. This concession proceeds on the theory that the bonds could not be issued, except under the authority of section 12a of article 10 of the Constitution; said section (12a) having been adopted as an amendment to the Constitution in the general election on November 4, 1902 (Laws 1905, pp. 324, 325; Laws 1901, pp. 268, 269 [Ann. St. 1906, p. 291]). That amendment, ex vi termini, is limited to a city containing not more than 30,000 nor less than 2,000 inhabitants. The commissioner reports his finding, on that issue of fact, as follows: "The federal census of 1900 shows Centralia contained a population of 1,722. In 1901 the city council passed an ordinance, appointing a census taker to take the census of the city, and the records show that the population of the city, at that date, was 2,020. The city of Centralia has conducted its affairs since that date as a city containing more than 2,000 inhabitants. Shortly after the election, held in 1907, on the water bond proposition, the city council ordered a census to be taken, and the returns show a population of 1,983. This census was rejected by the city council for `obvious inaccuracies.' I find that, at the date of this election, in February, 1907, and at the date said bonds were issued, on the 13th day of June, 1907, the city of Centralia contained more than 2,000 inhabitants." The Attorney General excepts to that finding, for that (he says) it is unsupported by proof.

Attending to the testimony, upon which the commissioner based his finding, it was put in in August, 1907. Mr. Price was put upon the witness stand at the hearing, and testified he was and had been since April, 1907, city clerk of Centralia. He produced two books at the hearing—one, the journal of the council, the other, an "ordinance book"—and testified the "ordinance book" contained ordinances passed; that they did not appear in the journal, but were merely there identified by title or number. He read into the record several ordinances, passed in 1907, pertaining to the election and bond issue. It was not shown how long the method of bookkeeping indicated to wit, the separation of the ordinances proper from the council proceedings, had been in vogue. However that may be, no ordinance relating to the census of 1901 was read into the record from the ordinance book, nor is it claimed one could be found there. But from the journal several pages were read into the record, and constitute the evidence upon which the commissioner based his finding of fact touching the census. For example, from page 75 of the journal, under date of January 21, 1901, there was read into the record the following minutes:

"Call Meeting.

"January 21, 1901, Mayor McCallister called the board of aldermen to order at 8 p. m. as per call. R. L. Hope, W. L. Horn, O. B. Wilson, I. J. Head, aldermen, answered present. The following business was had:

"First. Call read to the board of aldermen of the city of Centralia, Mo., and clerk:

"`Gentlemen, you are hereby requested to meet at the City Hall at 8 p. m., Monday, January 21, 1901, for the purpose of considering the taking of the census, and, if you consider it in the affirmative, to appoint a suitable person for that purpose. Respectfully, William A. McCallister, Mayor.

"`Served the within notice by reading the same to the members of the board of aldermen and city clerk. Dated January 21, 1901. Harrison Brown, Marshal.'

"Ordinance passed and read.

"Ordinance for taking census: Be it ordained by the board of aldermen of the city of Centralia, Mo., as follows: That a census be taken of the city of Centralia, Mo., to ascertain the number of inhabitants thereof. Moved and...