The State ex rel. City of Tarkio v. Seibert
| Decision Date | 06 June 1893 |
| Citation | 22 S.W. 732,116 Mo. 415 |
| Parties | The State ex rel. the City of Tarkio v. Seibert, State Auditor |
| Court | Missouri Supreme Court |
Peremptory writ denied.
Kelley & Kelley for petitioner.
(1) The Australian law is simply an amendment ingrafted upon the general election law directing the manner in which the election shall be conducted for the election of public officers, and perhaps the only provision in it which would be regarded as mandatory is that in relation to the ballots with the names of the candidates thereon, which declares that no other ballot shall be cast or counted. Revised Statutes 1889 sec. 4772. (2) Again, the law governing a special city election upon a proposition to become indebted, is a special law applicable to a special subject, while the Australian election law is a general one, and applicable only to the election of public officers. (3) The Australian law at the time of the election in question, did not apply to elections in cities of less than 5,000 inhabitants, and the law of 1891 applying it to all precincts was not intended to extend it to a city election of this character. (4) Irregularities in an election will not invalidate it. McCrary on Elections, sec 127; Zeller v. Chapman, 54 Mo. 502; McPike v. Pen 51 Mo. 63.
John M. Wood, Attorney General, for respondent.
The election in question in this case was not properly held, because not conducted under the Australian ballot law. The latter law applies to an election like the one here presented, under sections 1581 and 1948 of Revised Statutes of 1889. Said law as amended in 1891 extends to all the election precincts in the state, hence, while it may have been the original intention that the Australian system should extend only to the election of public officers, yet under the provisions of sections 1581 and 1948, it is made to apply to an election for the purpose of incurring an indebtedness of the kind mentioned in the petition.
OPINION
In Banc
Mandamus.
This is an original proceeding for a mandamus to the defendant, as state auditor, to require him to register certain bonds of the city of Tarkio. His refusal to register them raises the question of their validity, which is the only issue in the case. The sufficiency of the plaintiff's petition to warrant the issuance of a peremptory writ is disputed by defendant's demurrer, on which the cause is now submitted.
It appears from the petition that Tarkio is a city of the fourth class, governed by the general charter applicable to such cities. Revised Statutes, 1889, ch. 30, art. 5.
In November, 1891, the mayor and board of aldermen of the city adopted the following ordinance:
It was further enacted that the ordinance should take effect and be in force from and after its passage and approval.
Afterwards another ordinance was adopted, directing ballots to be printed for the special election, and prescribing that they should read thus:
Judges for the election were appointed by the mayor and aldermen, and, accordingly, the election was held December 1, 1891. It is not necessary to set out, particularly, the other steps taken in the matter of the election further than to say that they conformed substantially to the general law on that subject in force prior to the adoption of the ballot reform act of 1889 (Revised Statutes, 1889, ch. 60, art. 3, as amended; Laws, 1891, p. 133). But they did not conform to that act. On the contrary, they departed from it in very many substantial respects; indeed, to the full extent of its difference from the old law.
The returns of the special...
To continue reading
Request your trial