The State ex rel. Pike County v. Gordon
| Decision Date | 03 July 1916 |
| Citation | 188 S.W. 88,268 Mo. 321 |
| Parties | THE STATE ex rel. PIKE COUNTY v. JOHN P. GORDON, State Auditor |
| Court | Missouri Supreme Court |
Writ quashed.
Tom B McGinnis, Jones & Hayden, Hostetter & Haley and Pearson & Pearson for relator.
(1) Voting on the proposition to issue bonds to build two court houses, in the same county, one at the city of Bowling Green and the other at the city of Louisiana, is not two separate and distinct propositions, for separate, different and distinct purposes, as set out and urged in the first division of respondent's brief. There is no difference between the relator and the respondent, as to what the law is, in this case. The only difference is in the application of the facts to the law. (2) The facts in the cases cited under point one of respondent's brief, are not at all analogous to the facts in the case at bar; with perhaps the single exception of the case of State ex rel. v. Gordon, 223 Mo. 1. The case at bar presents a state of facts showing a much more decided, or striking, singleness of purpose in the proposition submitted to the voters of the county, than is shown in either of the two leading cases, wherein all phases of the difference between a single and a double proposition submitted to voters of a county, have been very recently thoroughly and minutely discussed by this court; and, wherein the court held upon the facts, as therein stated, the proposition in each was a single proposition, to-wit State ex rel. v. Gordon, 223 Mo. 1; State ex rel. v. Gordon, 231 Mo. 547. (3) The one proposition, presented to the voters of Pike County, in voting the appropriation for two court houses, one each at Bowling Green and Louisiana, respectively, was the erection of places, only, for justice to be judicially administered. A court house, is, "the place where justice is judicially administered." Bouvier's Law Dictionary. Justice, no matter where administered, is a unit; like the North Star, fixed, invariable, unchangeable. The one purpose in the minds of the citizens circulating the petition, in the mind of the court acting on said petition, and ordering the election, was that justice might be judicially administered, convenient to the citizens of the county. It is exactly the same justice, administered in the court house at Bowling Green, that is administered in the court house at Louisiana. The same judge presides over the court held in both houses. The same sheriff serves process issuing from either court. The same law, and rules, governs the proceedings in either court. The expenses of each court are paid out of the same public fund. There are not two distinct and different purposes, in voting for two court houses, one at Bowling Green and one at Louisiana. The purpose, or the proposition, is the same, to-wit, administration of justice. The buildings are simply the means, or rather the place where, the one main purpose is effectuated. The appropriation for the building of two court houses, as presented by the county court, to the voters of Pike County, is like dividing the circuit court in large cities, into many divisions. The various divisions of a circuit court are not different propositions, or for separate and distinct purposes; but, it is the means of carrying into effect the one purpose, administering justice, to the citizens of a populous city. So here, in the one proposition, to build two court houses in the county of Pike, is the one purpose, the constitutional right of all the citizens of this county, that "courts of justice shall be open to every person, a certain remedy afforded for every injury to person, property or character, and that right and justice should be administered without sale, denial or delay." (4) By virtue of a recent enactment of the Legislature, the law now authorizes, as one proposition, any county in this State to incur an indebtedness for the purpose of building "a court house, jail, poor house, county sanitarium, or other county buildings," etc. Laws 1913, sec. 8, p. 125. This enactment is radically different from the old statute. Applying the rule of ejusdem generis in construing this enactment the words "or other county buildings" mean duplicate or similar to ones previously mentioned; that is, "other such like," or other buildings of like kind or character. State v. Eckhardt, 232 Mo. 52; State v. Gilmore, 98 Mo. 213.
John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for respondent.
Two separate and distinct propositions were embraced in the question submitted, thus preventing a fair expression of the will of the voters and thereby rendering the election void. State ex rel. v. Allen, 186 Mo. 673; State ex rel. v. Wilder, 200 Mo. 103; State ex rel. v. Wilder, 217 Mo. 261; McMillan v. County Judges, 3 Iowa, 320; Gray v. Mount, 45 Iowa 595; Denver v. Hays, 28 Colo. 114; Brown v. Carl, 111 Iowa 610; Stern v. Fargo, 26 L. R. A. (N. S.) 665, and notes; Knoxville v. Gass, 14 L. R. A. (N. S.) 519, and notes; State ex rel. v. Gordon, 223 Mo. 1.
OPINION
In Banc.
Mandamus.
By this proceeding Pike County seeks to compel the State Auditor to register bonds issued to raise funds to build two courthouses -- one in Bowling Green for the circuit court and county offices, and one in the city of Louisiana for the Louisiana Court of Common Pleas. Respondent waived the issuance of the formal alternative writ and demurred. In accordance with our practice in such circumstances, the petition will be permitted to stand as and for the alternative writ.
The argued grounds of demurrer are (1) that no sufficient notice of the bond election was given, and (2) that two separate and distinct propositions were joined in the question submitted, thus preventing the voters from exercising the liberty of choice between the two.
The question submitted to the voters was formulated by the county court in its order calling the election and was stated by it thus:
"Shall the county court of Pike County, Missouri, be authorized and empowered to incur an indebtedness and to issue bonds of said county of Pike to the amount of seventy-five thousand dollars for the erection of a courthouse in the city of Bowling Green, in said county of Pike, and to incur an indebtedness and to issue bonds of said county of Pike to the amount of twenty-five thousand dollars for the erection of a courthouse in the city of Louisiana, in said county . . .?"
The question formulated also included, in detail, the rate of interest, times and place of payment and the power to levy a tax to pay off the bonds. The form of ballot to be used was prescribed and followed the language of that part of the order above set out. The petition and order of the county court and notice of election made it clear the courthouse proposed to be erected at Louisiana was for the occupancy of the Louisiana Court of Common Pleas.
At the election the question submitted received the requisite majority of affirmative votes, and on May 24, 1916, representatives of the county presented the bonds for registration, and this was refused. Thereupon this proceeding was begun.
I. It is respondent's duty to refuse to register bonds unless he is furnished evidence showing "that all conditions of the laws have been complied with" in their issuance. [Sec. 1275, R. S. 1909; Hoff v. Jasper County, 110 U.S. 53, 28 L.Ed. 68, 3 S.Ct. 416.]
II. The Constitution (Sec. 12, art. 10) forbids counties to incur, in any year, indebtedness in excess of that year's income "without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose." The Constitution does not provide the manner in which the will of the voters is to be expressed under this section but leaves that to the General Assembly. [Thornburg v. School District, 175 Mo. l. c. 12, 75 S.W. 81.] With respect to counties, the General Assembly has provided a method by the Act of March 22, 1913, Laws 1913, sec. 8, p. 125. That act provides that when it becomes "necessary for any county . . . to incur an indebtedness for the purpose of building a courthouse, jail, poorhouse, county sanitarium or other county buildings . . . in excess of the total income and revenue of such county provided for any one year" one hundred qualified signers may present to the county court a petition "setting forth the object and purpose for which the indebtedness is to be created" and praying that an election shall be held. It then becomes the duty of the county court to call an election "for the purpose set forth in such petition and to make an entry of such order on the record of the court." Section 10 of the same act specifies the forms of ballots as follows: "Appropriation of $ for the purpose of , Yes" and "Appropriation of $ for the purpose of , No." Under this act the county court proceeded in calling the election involved in this case.
III. This court has long held that under a statute like that just referred to, two separate and distinct propositions cannot be combined and submitted, jointly, as one question, "so as to have one expression of the vote answer both propositions as voters thereby might be induced to vote for both propositions who would not have done so if the questions had been submitted singly." [State ex rel. v. Wilder, 217 Mo. l. c. 261 at 269, 270, 116 S.W. 1087, and cases cited.] No decision in this State questions the principle, and courts of other states have almost uniformly applied the same rule. [McMillan v. Lee County, 3 Iowa l. c. 320; Supervisors v. Railroad, 21 Ill. l. c. 374; Lewis v. Comrs., 12 Kan. l. c. 213; Farmers L. & T. Co. v. Sioux Falls, 131 Fed. l. c. 912 et seq.; Gas and Water Co. v. Elyria, 57 Ohio St. 374, 49 N.E. 335; Railroad v. Peterborough, 49...
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