The State ex rel. Ray County v. Hackmann
| Decision Date | 20 November 1922 |
| Citation | 245 S.W. 554,295 Mo. 417 |
| Parties | THE STATE ex rel. RAY COUNTY and W. R. PATTON et al., Judges of County Court, v. GEORGE E. HACKMANN, State Auditor |
| Court | Missouri Supreme Court |
Peremptory writ awarded.
George W. Lavelock, George Crowley, Eugene Farris and Charles & Rutherford for relators.
(1) By an act of the First Extraordinary Session of the Fifty-first General Assembly, approved August 4, 1921, Laws First Extra Session, page 133, all of Art. II. Chap. 98, R. S. 1919, was repealed, except Sections 10896 to 10905 and Section 10907. These sections only remain in force and effect until to and including December 31, 1922. It is under their provisions that the State Highway Department can and is willing to assist Lafayette and Ray Counties in building a bridge across the Missouri River at Lexington, and locating a high-type hard-surface road from a point on the highway between St Louis and Kansas City through Higginsville, Lexington Richmond and on north to Hamilton, and there connecting with the state highway from Hannibal to St. Joseph. If Ray County can sell its bonds voted, in time to make the avails thereof available for the purpose of paying, in conjunction with Lafayette County, one-half of the cost of said bridge, then the said road can be secured, otherwise it will be lost to said cities. The plans and specifications for the erection of the bridge at Lexington have been prepared and approved, and the cost thereof estimated at approximately $ 900,000. The proceeds of the sale of the $ 192,000 of bonds of Ray County are to go to paying that part of the cost of building of said bridge chargeable to Ray County, as provided by Sec. 10691, R. S. 1919. (2) Unless the proceeds of the sale of said bonds can be used for this purpose they will not be used. That they can be used for this purpose is evidenced by the language of Section 12 of Article X of the Constitution. State ex rel. Boonville v. Hackmann, 240 S.W. 135. (3) We have pleaded the suits pending in the circuit court so that the case may be determined upon a demurrer to relator's application, and to show to the court that the circuit court is without jurisdiction to hear and determine them. (4) The injunction suits pending in the circuit court are in effect election contests, and the court is without jurisdiction to determine them, for election contests are "purely creations of the statute." State ex rel. v. Hackmann, 274 Mo. 565. There is no statute providing for contesting such an election. State ex rel. Wahl v. Speer, 284 Mo. 60. (5) The election order recites the petition and finds it in proper form, and orders the election to be held and fixes the day and orders notice given in all of the newspapers published in the county. The order is sufficient. Sec. 10745, R. S. 1919. The order calling the election was published in all of the newspapers published in the county and was sufficient. Sec. 10745, R. S. 1919.
Lawson & Hale amici curiae.
(1) Statutes providing procedure to be followed in issuing county bonds are to be strictly construed. 15 C. J. 615; State ex rel. v. Martin, 83 Mo.App. 55. (2) The order calling the special election to vote the bonds in question, and the notice thereof, published by the Clerk of the County Court, were insufficient, because they failed to state the purpose for which the bonds were to be voted, and the amount of bonds to be issued. Sec. 10745, R. S. 1919; State ex rel. v. Hackmann, 270 Mo. 658; 15 C. J. 618; State ex rel. v. Martin, 83 Mo.App. 55; McPike v. Pen, 51 Mo. 63; Thornburg v. School Dist., 175 Mo. 12, 27; Railway Co. v. Apperson, 97 Mo. 300. (3) Proceeds of bonds voted for one purpose cannot be diverted to and used for another purpose. These bonds were voted under Article V, Chapter 98, Revised Statutes 1919, to build roads, and are about to be used for building a Missouri River bridge under Section 10691, Article IV, Chapter 98. Railway Company v. Apperson, 97 Mo. 300; Ogden v. Daviess Co., 102 U.S. 634, 26 L.Ed. 263. (4) There is no provision in our statutes to vote bonds to build the bridge proposed to be built by the Ray County Court. Section 10691 does not provide for issuing bonds in any event. Section 10698 provides for bonds to build a bridge, where, under a special statute, a city on one side of a river and a county on the other side, agree to build a joint bridge. Section 10699 also provides for a special benefit district. Those sections were passed because, as it declared in the emergency clause thereto, we had no power as the law then stood to vote bonds for such purposes. Laws 1919, pp. 638, 646. (5) If this proceeding had been instituted under Section 10691 it would not have been initiated by a petition of 200 or more tax-paying citizens, asking an election to grade, pave, etc., roads, as it was, but by the county court finding and declaring the proposed bridge to be "necessary," and proceeding thereon accordingly. Jefferson County v. St. Louis County, 113 Mo. 619, 631; 9 C. J. 436; Crow v. Oxford Twp., 119 U.S. 215, 30 L.Ed. 388. (6) All bridges constructed under the provisions of Section 10691 must be planned and the construction thereof supervised by the county highway engineer or engineers, only. And no power is there given to vote bonds. Secs. 10687, 10691, R. S. 1919; Ogden v. Daviess County, 102 U.S. 634, 26 L.Ed. 263. (7) Secs. 10697 to 10702, R. S. 1919, comprise the law for building bridges over a navigable stream and are complete within themselves. The Legislature so designated this law. The caption is: "Highway Over Navigable Streams," Laws 1919, pp. 638 to 646. This is a new law, to meet a special need, which was enacted under an emergency clause. The compilers placed this law under Article IV of Chapter 98, while the proceedings in this case are under Article V, Chapter 98, and it is so stated in the proceedings. If the Legislature did not go far enough, it must act again. The court cannot legislate. (8) Construction of the proposed bridge across the Missouri River, unauthorized by a special act of Congress, and without the consent of the Secretary of War and of the Chief of Engineers, is a clear violation of law, and this court will not lend its assistance thereto. Sec. 9971, U. S. Compiled Statutes 1916; Gulf & Ry. Co. v. Meadows, 120 S.W. 521. (9) The bonds issued by Ray County state on their face (see application of relators) that they are issued "for the purpose of grading, constructing, paving and maintaining paved, gravelled, macadamized or rock roads and necessary bridges and culverts therein, and pursuant to and in full compliance with the Constitution and laws of Missouri, including among others, Article V, Chapter 98, Revised Statutes 1919." The notice of special election recites the same purpose, "as authorized by Article V, Chapter 98, Revised Statutes 1919" (see relators' application), and the order for the election says "as authorized by Article V, Chapter 98, Revised Statutes of Missouri, 1919" (see relators' application). There is no authority in such law to vote bonds for a bridge over a navigable stream, and such bonds are void. Ogden v. Daviess County, 102 U.S. 634, 26 L.Ed. 263; Art. X, sec. 20, Mo. Constitution.
OPINION
In Banc.
Mandamus.
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, Revised Statutes 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 Court 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...
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