Weber v. City of Helena

• Decision Date: 19 March 1931
• Docket Number: No. 6794.,6794.
• Parties: WEBER v. CITY OF HELENA et al.
• Court: Montana Supreme Court

89 Mont. 109

WEBER

v.CITY OF HELENA et al.

No. 6794.

Supreme Court of Montana.

Jan. 27, 1931.

On Motion to Dissolve Injunction, March 19, 1931.

Original proceeding by J. V. Weber against the City of Helena, Montana, and others, for a writ to enjoin defendants from issuing and selling certain bonds.

Writ issued; dissolved after validating act.

E. G. Toomey, of Helena, for plaintiff.

Raymond T. Nagle, of Helena, for defendants.

ANGSTMAN, J.

Plaintiff, a resident taxpayer and registered elector of the city of Helena, on November 10, 1920, applied for an original writ to enjoin defendants from issuing and selling certain bonds. The petition of plaintiff discloses the following facts:

That on May 19, 1930, a petition signed by more than 20 per cent. of the qualified, taxpaying, registered electors of the city of Helena, was presented to the city council requesting that an election be called for the purpose of submitting to the taxpayers the question of issuing bonds in the sum of $200,000 for the purpose of improving and making more efficient the water plant of the city of Helena. The petition was by resolution of the council declared sufficient. On June 9 the council passed an ordinance calling for an election and directed it to be held on July 7. Notice of the election was published for a period not less than three weeks prior to the election in a newspaper in Helena, and copies were posted in not less than three public places in the city and one at each polling place, and nine in nine of the most public places in each ward, all for a period of not less than three weeks prior to the date of the election. On June 9 the city council appointed registry agents in each ward for the registration of electors to vote on the proposed bond issue, and directed that the registration be made on July 1st and 2d. On June 27 notices designating the time when and place where registration would be conducted were posted at each registration place, and nine copies were posted in nine of the most prominent places in each ward, and the notice was published in the Helena Daily Independent for four consecutive days prior to the time provided for registration, all as provided in certain city ordinances. The registration agents, in obedience to the provisions of the ordinances, required applicants to sign and swear to a statement that he or she had “paid taxes upon property owned by and assessed to” him or her “on the assessment roll of the city *** next preceding the election.” Three applicants whose names appeared upon the assessment roll for the preceding year, and who were qualified electors, declined to make the affidavit required, because it contained the statement that taxes assessed to them had been paid. Fourteen hundred and sixty–five persons registered under this plan of registration.

Each registry agent on the day following the registration posted in a conspicuous place in his ward, at the place where votes were received at the election thereafter held, a list of all persons registered at such registration. It is alleged that none of the proceedings provided for by sections 566, 567, Revised Codes of 1921, by chapter 98, Laws of 1923, or by chapter 47, Laws of 1929, were observed. Twenty–eight persons who had registered under the municipal plan had been found not to have paid taxes upon property assessed to them on the last preceding assessment roll and were not permitted to vote, which included plaintiff. The county clerk of Lewis and Clark county had kept and preserved registry books as required of him by law, and all of the persons who voted at the special election in question, except 51, were registered in the registry records of the county clerk on the 45th day prior to the election; these 51 persons were permitted to vote and were not registered on the books of the county clerk, but had registered under the municipal registration and had paid taxes onh property assessed on the last preceding assessment roll. On the date of the election, and for forty–five days prior thereto, there appeared the names of 2,512 persons upon the county registry books whose names appeared upon the assessment roll of the county for the year preceding, assessed upon property within the city. Of this number, 1,047 persons did not register or attempt to register under the municipal registration and did not vote or attempt to vote at the election in question. At the time of the election, and forty–five days prior thereto, 128 of the persons otherwise qualified to vote had not paid the tax assessed against them on the assessment roll next preceding the election, 32 of whom registered at the special election, and 4 of the 32 voted.

At the election of July 7, 573 votes were ceast in favor of the bond issue, and 437 against it. Thereafter, and on July 28, an ordinance was passed providing for the issuance and sale of the bonds on September 2, at which time the bid of the state board of land commissioners, subject to the approval of the attorney general, was accepted. On September 16 an ordinance was passed providing for the form and manner of execution of the bonds. The Attorney General has not approved the proceedings. It is alleged that unless enjoined from so doing, the defendants will sell the bonds, levy and collect taxes for the payment thereof, and collect water rents and charges therefor; the election proceedings are alleged to have been unlawful, illegal, and void for the following reasons:

1. The registration for the election was not closed as provided by law.

2. That notice of closing registration for the election was not given thirty days before the closing, as required by law.

3. That lists of registered electors qualified to vote were not prepared by the county clerk and posted, as required by law.

4. That registered electors of the city whose names appeared upon the assessment roll for the year next preceding the day of election were denied the right to vote because delinquent in the payment of taxes for such year.

5. That persons not registered as required by law were permitted to vote at the election.

Defendants filed an answer admitting all of the facts alleged in the petition, but denying the conclusions alleged with respect to the validity of the election. The answer alleges that not more than 28 persons, otherwise qualified to vote, applied and were denied the right to vote because they had not paid taxes, and that it is unknown how many of them would have voted for or against the bond issue; that not more than 51 persons who voted at the election were not registered on the books of the county clerk, and that it is unknown how many of them voted in favor of or against the bond issue; that out of the 128 persons, otherwise qualified to vote at the election but who had not paid their taxes, only 28 applied to vote and were denied the right; that it is unknown how many of the remaining persons, included in the 128, failed to apply to vote by reason of anticipation on their part that they would be denied the right to vote, and that it is unknown how many of them would have voted in favor of or against the bond issue; that no elector qualified to vote was deprived of the right to do so by reason of having failed to register at the special registration; that the judges and clerks of election were instructed to permit, and did permit, any elector otherwise qualified to vote, who had failed to register at such registration, to be sworn in and to vote upon signing and swearing to the following affidavit: “I do solemnly swear that I am a citizen of the United States; that I am 21 years of age, and have resided in this state one year immediately preceding the approaching election; that I have resided in the city of Helena for six months; that I am an actual resident of the — precinct of said city and I now reside at — street; that I have paid taxes upon property owned by and assessed to me on the assessment roll of the City of Helena next preceding the election held —.” That this procedure was publicly known and was availed of by a number of electors, otherwise qualified but who had failed to register at the special registration; that no elector, otherwisequalified but who had failed to register at the special registration, declined to sign the affidavit because of its contents. By way of separate defense, defendants allege that more than sixty days have elapsed since the passage of the ordinance authorizing the issuance and sale of the bonds, and that the cause of action is barred by section 9040, Revised Codes 1921.

The plaintiff in his reply admits all of the facts alleged in the answer, but denies the conclusion that the cause of action is barred. The controversy is before us for final determination upon the foregoing conceded facts.

The first point of difference between the parties is whether chapter 98, Laws of 1923, as amended by chapter 47, Laws of 1929, or sections 5009, 5278, and 5279, Revised Codes 1921, govern the procedure to be followed for the registration of electors and determine their qualifications in an election on a proposal such as here involved.

Section 5278 provides: “Whenever the council of any city or town, having a corporate existence in this state, or hereafter organized under the provisions of this title, shall deem it necessary to borrow money or contract indebtedness under its powers, as set forth in subdivision 64 of section 5039 of this code, or amendments thereto, the question of issuing bonds or contracting such indebtedness shall first be submitted to the qualified electors of such city or town in the manner hereinafter set forth; provided, that taxpayers only, as defined by section 544 of this code, shall be entitled to vote on questions concerning the construction, purchase, or securing of a water plant, water system, water supply, or sewerage system.”

Subdivision 64 of section 5039, referred to in section 5278, in dealing with the powers of the city or town council, confers...