The State ex rel. Wahl v. Speer

• Decision Date: 13 July 1920
• Citation: The State ex rel. Wahl v. Speer, 223 S.W. 655, 284 Mo. 45 (Mo. 1920)
• Parties: THE STATE ex rel. JAMES S. WAHL et al. v. EVERTON SPEER et al., Judges of County Court
• Court: Missouri Supreme Court

223 S.W. 655

284 Mo. 45

THE STATE ex rel. JAMES S. WAHL et al. v. EVERTON SPEER et al., Judges of County Court

Supreme Court of Missouri

July 13, 1920

Writ issued.

Shepard & Oliver and Ward & Reeves for relators.

(1) Respondents' contention is that the election is illegal and void because not held in conformity with the Australian Ballot Law. Where a failure to provide for absolute secrecy according to that law, could not reasonably have had any obstructive or unfair influence on said election since the ballots were short and small, and where no charge of fraud or illegal votes or differences in the election thereby, such failure to follow the Australian Ballot Law does not make the election illegal or void. Brueninger v. Hill, 210 S.W. 70; State ex rel. v. Hackman, 273 Mo. 695; State ex rel. v. Hackman, 274 Mo. 563; Bine v Jackson County, 266 Mo. 240; Laws 1913, p. 125. (2) The contention that there were four propositions voted on in one election is without foundation. There was but one proposition, viz., to create an indebtedness of $ 150,000, to erect and equip a courthouse and buy additional site, if necessary, therefor. Where there are two or more things to be considered, and all relate to, and together collectively connect and combine in the accomplishment of one purpose then they may all be submitted at an election at one time for they in fact constitute, and are, but one proposition. State ex rel. v. Allen, 183 Mo. 283; State ex rel. v. Allen, 178 Mo. 555; State ex rel. v. Wilder, 200 Mo. 97; State ex rel. v. Gordon, 231 Mo. 566; State ex rel. v. Gordon, 223 Mo. 1. (3) The last contention is that this suit can not be maintained because certain citizens of Pemiscot County have now pending an injunction suit in the Circuit Court to prevent the county court from selling the bonds and levying the taxes in question. (a) As a matter of law an injunction suit pending in the Circuit Court does not prevent the Supreme Court from issuing mandamus against the officer sought to be enjoined. State ex rel. v. Hackman, 202 S.W. 7. (b) But before this action was brought these respondents, as the County Court of Pemiscot County, had made the identical order that was sought by the injunction suit. In other words, they refused to issue the bond and levy the tax and thereby did the exact thing the injunction suit sought to force them to do.

McKay & Medling and Fauntleroy, Cullen & Hay for respondents.

(1) An election which is not held in conformity to the Australian Ballot Law, R. S. 1909, Article 5, is illegal and void, and equity will grant relief against such an election and restrain proceedings thereunder. Gaston v. Lamkin, 115 Mo. 20. (2) The proceedings on which the alleged election is based show on their face that said election is illegal and void, because the electors were required to vote on more than one proposition, to-wit: (a) A proposition to build a new courthouse; (b) a proposition to enlarge the old courthouse; (c) a proposition to buy land for a site for the courthouse; (d) a proposition to furnish and equip said courthouse. Two or more separate and distinct propositions cannot be combined and submitted jointly as one question. State ex rel. v. Allen, 186 Mo. 673; State ex rel. v. Wilder, 200 Mo. 103; State ex rel. v. Wilder, 217 Mo. 261; State ex rel. v. Gordon, 268 Mo. 327. (3) In the former proceeding to enjoin respondents from proceeding under the alleged election, the Circuit Court of Pemiscot County, as a court of equity, has power to pass on the validity of said election for the grounds stated in the petition in that case, and particularly to entertain the ground of fraud therein alleged. A chancery court had jurisdiction of a contest of an election brought to determine whether a county should subscribe for the stock of a railroad. Catlett v. Knoxville Railroad Co., 120 Tenn. 699, 112 S.W. 559. Where the constitution provided for an election to determine the policy of creating a bonded indebtedness and prohibited the issuance of bonds without the consent of two-thirds of the voters of the county, but provided no machinery for enforcing the provision, it was held that the constitution by necessary implication conferred on the court of chancery jurisdiction to protect and enforce the will of the people by suitable and proper procedure. Gibson v. Trinity County, 80 Cal. 359, 22 P. 225. So it has been held that a court of equity will take jurisdiction of a local option election contest where there is no statutory method for settling the contest. Marsden v. Harlocker, 48 Ore. 90, 85 P. 328, 120 Am. St. 786, distinguishing McWhirter v. Brainard, 5 Ore. 426. (4) Where an election relates to the location or change of a county seat, it has been held in some jurisdictions, in the absence of any statute expressly authorizing such proceedings, that equity will intervene to determine a contested election because of irregularities or fraud in the conduct thereof, on the ground that the constitution, by implication, confers such jurisdiction. Boran v. Smith, 47 Ill. 482; People v. Wiant, 48 Ill. 263; Dickey v. Reed, 78 Ill. 262; Devous v. Gallatin County, 244 Ill. 40, 18 Ann. Cas. 422; Sweatt v. Faville, 23 Iowa 321; State v. Eggleston, 34 Kan. 714, 10 P. 3. See, also, Shaw v. Circuit Ct., 129 N.W. (S. D.) 907.

GOODE, J. Woodson, J., absent.

OPINION

In Banc

Mandamus.

GOODE J. --

This is a proceeding to compel the respondents, who are the judges of the County Court of Pemiscot County, to carry into effect the result of an election held September 9, 1919, at the usual voting precincts throughout the county, to ascertain the will of the qualified voters concerning a proposition to incur a county debt of $ 150,000, "for the purpose of building, equipping and furnishing a court house in the City of Caruthersville . . . and purchasing such additional ground, if any, as may be deemed to be for the best interest of said county; and to provide a proper and suitable site for said court house, . . . and to issue bonds of Pemiscot County, Missouri, therefor, in the total sum of one hundred and fifty thousand dollars, bearing interest at the rate of five per cent per annum," payable in enumerated installments. The proceedings which led up to the order for the election are conceded to have been regular except in the particulars hereinafter mentioned; and the result of the vote, on the face of the returns made by the officers of the voting precincts, was that more than two-thirds of the qualified voters, who voted, favored the proposition. But the county court refused to issue the bonds or to levy an annual tax to pay the interest and create a sinking fund to pay the principal in twenty years. After finding the proposition had carried by the requisite majority, the county court, on November 5, 1919, entered of record the reason why it refused to carry out the will of the voters, saying that upon reconsidering the petition filed by more than one hundred qualified voters of the county, requesting the election, and reconsidering the notice for the election as published, the court found "the same are and were insufficient and for that reason such election is invalid, and, therefore, the court refuses to direct the issuance of the bonds," etc. In the order for the election said court had held the petition complied with the law.

The return to the alternative writ, after a part of it wherein the defense was set up that the proposition was carried by fraudulent and illegal votes, had been struck out, pleads invalidity of the election for three reasons: first, that it was not conducted in accordance with the requirements of the statutes of the State, known as the Australian Ballot Law and the particulars in which those regulations are asserted to have been ignored are stated; second, these four propositions were submitted to the voters: to build a new court house; to enlarge the old one; to buy land for a site for a court house; to furnish and equip the courthouse; third, the pendency in the circuit court of the county of a suit filed in October, 1919, to enjoin the respondents as judges of the county court and the clerk of said court, from issuing bonds or levying a tax under the authority of the election. That suit was filed by B. F. Allen, and eight other plaintiffs, alleged to be taxpayers of the county. The petition is copied into the return of the respondents to the alternative writ issued in the present case. It attacks the validity of the election and asks that the county court and the clerk be enjoined from giving effect to it for precisely the facts averred in the return herein, plus the charge that illegal and fraudulent votes entered into the result. The petition for an injunction enumerates the number of the illegal votes charged to have been cast and counted in favor of the debt, and says a lawful majority of two-thirds of the voters did not vote for it. The return says a temporary restraining order or injunction may be issued against the respondents at any time by the Circuit Court of Pemiscot County, and may be made permanent; that the suit is still pending and the issues raised in it touching the validity of the election are the same as those raised in the present proceeding; and, therefore, this cause should not be determined until the other one is decided. The reply to the return denies the averments of particular matters in which the Australian Ballot Law was ignored; denies the election is void for the reason that more than one proposition was submitted to the voters; denies illegal and fraudulent votes were cast and counted in favor of the proposition; and in connection with this denial pleads an estoppel against the defendants as judges of the county court for that said court found and adjudged of record the...