115 Mo. 20 | Mo. | 1893
This is an action against the-judges and clerk of the county court and the collector of the revenue of Jasper county, in which the plaintiffs seek to set aside an order of said court levying special taxes, made at the May term of said court, on the twenty-ninth day of July, 1891, for the purpose of creating a fund to erect two courthouses in said county, and to restrain the collection of such taxes. The levy was ordered under the authority of article 3, chapter 21, Revised Statutes, 1889, in pursuance of an election held on the fourteenth of July, 1891, upon an order of -the county court therefor made on the twenty-third of June, 1891, upon the petition of more than one hundred qualified voters and taxpayers of said county setting forth the amount of said fund asked to be raised, the objects and purposes for which, and the mode by which it was to be raised, as required by section 852 of said article.
The order for the election was as follows: “Tuesday, June 23,1891, Thirteenth Day of May Term.
“Now, at this day comes A. F. Lewis, John C. Bailey, R. G. Sloan, S. B. Griswold and J. P. Newell et al, and present their petition signed by more than one hundred legal qualified voters and taxpayers of Jasper county, setting forth that it has become necessary to incur an indebtedness for the purpose of building courthouses, in excess of the revenue of Jasper county provided for any one year as limited by law; and that Carthage, the county seat of Jasper county, has voted $50,000 to be used in conjunction with Jasper county for the building of a courthouse- to be used jointly as
‘ ‘And it appearing to the satisfaction of the court that said petition is signed by more than one hundred qualified voters and taxpayers of Jasper county, and that said petition fully sets forth the object and purpose for which said election is to be held; and that the indebtedness sought to be incurred is to be paid by the direct levy of taxes in three years; and the matter being by the court seen, heard and fully understood, it is, therefore, ordered by the court that an election be held at the several voting precincts in Jasper county on Tuesday, the fourteenth day of July, 1891, for the
“And that the form of the ballots used at said election be as follows, viz.: ‘In favor of an indebtedness of $70,000 for the purpose of building two courthouses, and of an increase of the tax levy of twenty-five cents on the $100 valuation for three years, to pay for the same, Yes/ and ‘In favor of an indebtedness of $70,000 for the purpose of building two courthouses, and of an increase of the tax levy of twenty-five cents on the $100 valuation for three years to pay for the same, No.’
“And it is further ordered that the clerk of this court give twenty days notice of said election, by publication in the Carthage Banner, at least twenty days prior to the said fourteenth day of July, A. D. 1891.”
On the same day the court made a further order appointing judges of said special election to be held on the fourteenth of July, 1891, for each of the several voting precincts in the several townships of said
Due notice was given of the election in pursuance of the order, and as required by section 853 of said statute. The election was held in the several precincts on the day named, the vote returned to the county clerk, and by her and two justices of the peace associated with her for that purpose, counted, and the result certified to the county court as required by section 855 of said statute, on the seventeenth of July, 1891. At the next sitting of the county court thereafter, to-wit, on the twenty-first of July, 1891, the said court took up for consideration the returns of said election so certified to them, and by entry of record found “that there were cast in favor of the proposition six thous- and eight hundred and thirty-three votes and that there were cast against the proposition three thousand and ninety five votes, leaving a lawful two thirds majority of the votes cast in favor of said proposition. Wherefore said proposition is by the court declared carried.” i
And among other orders made in regard to the matter which need not here be set out, the court on the same day made the following:
“Whereas, the legally qualified voters of Jasper county, Missouri, in pursuance of an order of the court calling for a special election, in compliance with a petition of not less than one hundred taxpaying citizens of said Jasper county, did on Tuesday the fourteenth day of July, 1891, by a two thirds majority, vote, elect and decide to create an indebtedness of $70,000 for the purpose of building two courthouses, and for an increase of the tax levy of twenty-five cents on the $100 valuation, for three years to pay the same; said tax to be levied upon all the taxable property, real, personal, merchandise, railroad and
Afterwards on the twenty-ninth day of July, the following order was filed and presented to said county court:
“Now on this twenty-fifth day of July, 1891, is ' presented to me, the undersigned judge of the circuit • court of Jasper county, Missouri, by James H. Dryden, prosecuting attorney of Jasper county, Missouri, a petition accompanied by a certified order of the county court of said county, praying for an order commanding and directing the county court of Jasper county, Missóuri, to assess, levy and collect a tax for the purpose of building two courthouses as set forth in his petition, on the taxable property within the limits of Jasper county, Missouri, and it appearing that there has been a petition of not less than one hundred taxpaying citizens of Jasper county, praying the county • court to submit a proposition to the qualified voters of ■ Jasper county, Missouri, to create an indebtedness of $70,000 for the purpose of building two courthouses, and of an increase of the tax levy of twenty-five cents on ■on the $100 valuation, for three years, to pay the same; $50,000 of said money to be used with a like
“It is, therefore, ordered by me, said judge in vacation, that said county court of Jasper county, Missouri, be and it is hereby directed and commanded to .have assessed, levied and collected said courthouse taxes as prayed, and in accordance with the vote so had and the law governing the same; and this order-being a continuing order for the assessment, levy and collection of twenty-five cents of the $100 valuation,, forthe years 1891, 1892 and 1893, respectively.
“Given under my hand, this the day and year above written.
“M. G. McGkegok,,
“Judge of circuit court of Jasper county, Missouri."
Under and by virtue of the foregoing orders and proceedings, the defendants in their several official •capacities were proceeding to extend said special tax npon the tax book for 1891 against the property of plaintiffs and the other taxpayers of said county and to take all the necessary antecedent steps to enforce the collection thereof, when, on the twenty-first of August, 1891, this suit was instituted in the circuit court of Jasper county to set aside and annul said several orders. On the seventh of October, 1891, a change of venue was granted in the cause to the circuit court of Greene county, and on the ninth of November, 1891, on application of the plaintiffs, a temporary injunction was granted restraining the defendants from incurring any indebtedness in pursuance of said election' and orders, and from proceeding with the levying of collecting of any taxes by authority thereof.
After answer filed the cause was heard upon the merits at the January term, 1892, of the circuit court of Greene county; the temporary injunction dissolved, and the plaintiffs’ bill dismissed, and they appealed.
• It is not necessary to set out or summarize the allegations of the petition impeaching the validity of the
I. The subject of the provisions of section 852, article 3 of chapter 21, Eevised Statutes, 1889, is introduced by the expression, “Whenever it shall become necessary for any county in this state to incur any indebtedness for the purpose of building a courthouse or jail, in excess,” etc. In the order of the county court ordering the election in this case, it is not recited that the county court found that it had become necessary to incur such an indebtedness. It is contended for the plaintiffs that such failure in the order is a fatal defect, going to the jurisdiction of the court, that should avoid the proceedings. This is an entire misconception of the spirit and meaning of the statute. The jurisdiction of the county court to order an election is not predicated upon their conviction of the necessity of incurring the indebtedness, but upon the fact that more than one hundred qualified voters and taxpayers of the county, convinced of such necessity, by a proper petition filed in the court, asked that the question be submitted to the qualified voters of the county. The object of the proceeding is not to take the judgment of
II. Section 853 of the statute requires that the-court “shall cause at least twenty days’ notice of said election to be given by publication in some newspaper-published in the county,” etc. That notice such as is required in this section was in fact given, is abundantly shown by the evidence, and is not disputed. But the-records of the county court do not show a finding by that court that such notice had been' given; and appellants contend the trial court committed error in permitting this fact to be shown by oral evidence. This point has been so recently and directly ruled against this, contention that we deem it unnecessary to discuss it. State v. Dugan, 110 Mo. 138.
The notice purported to be given in pursuance of' the order of the county court and was signed by the - clerk in her official capacity. Upon the authority of' the same case it sufficiently appears that such notice-was caused to be given by the county court.
III. The election was conducted under the general election law of the state (Revised Statutes, 1889, chapter 60, article 1), and not in ^conformity with that, law as amended by the provisions of article 3 of said chapter, and further amended by an act approved April 4, 1891, generally known as the Australian ballot law,, and for this reason it is urged the election is void.
Section 855 of the law (Revised Statutes, 1889, ch. 21, art. 3) under which these proceedings were had. is as follows:
“The election herein provided for shall be held and conducted in the same manner, and the returns;
This section was first adopted in 1879 (Laws, 1879, sec. 6, p. 194). At that time the general election law was substantially the same as it now appears in article 1 aforesaid. And the respondents contend that the election was properly held under the general election law as it read at the time this statute was passed. The general rule governing in such cases seems to be, that where one statute refers to another for rules of procedure prescribed by the former, the former statute if specifically referred to, becomes a part of the referring statute, and the rules of procedure prescribed by the earlier statute so far as they form a part of the second enactment, continue in forcé, although the earlier statute be afterwards modified or repealed. But when the subsequent statute, being a general one, does not refer specifically to a former statute for the rule of procedure to be followed, but generally to the established law, by some, such expression as “the same as is provided for by law” in given cases, then the act becomes a rule for future conduct to be found when needed by reference to the law governing such cases at the time when the rule is invoked. Endlich on Interpretation of Statutes, sec. 493; Kugler’s Appeal, 55 Pa. St. 123; Jones v. Dexter, 8 Fla. 276; McNight v. Crinnion, 22 Mo. 559.
The cases cited by respondents as militating against this rule will be found on examination not to be within it, as for example Com. v. Kendall, 144 Mass. 357, where
We have quite a number of statutes in this state like the one under consideration for taking a vote, “as in elections for state and county officers.”. Revised Statutes, 1889, secs. 362, 4598, 4754, 8443 and others. And there can be no doubt that in all such cases the intention of the legislature was that the election should be held in conformity with the provisions of the general election law as it stands at the time the election provided for is held. It cannot be that the legislature intended that in each of the several elections thus provided for the election law as it may have stood at the time of the adoption of each is to be the rule of conduct for such election. Such a construction would be intolerable and destructive of that simplicity and uniformity in the conduct of elections which is so essential to the intelligent expression of the public will. The legislative will in regard to such elections as the one in hand is manifested by the provisions of the general election law as it stood at the time of the election, which was held about twenty days after the amendments of 1891 went into effect.
In the original article introducing in this state the Australian ballot system, “special elections held in only one county”- were expressly excluded from its operation by section 4792 of that act. By the act of 1891, this section was repealed in direct terms (Laws 1891, sec. 1, p. 134), and in the new section adopted in its stead, excluding elections for certain public offices from the operation of the act (the exception), “special elec
“Section 14. The provisions of this article as amended shall apply to all the election precincts in this state.”
In view of this action it cannot be doubted that it was the intention of the legislature that all elections for public offices in this state, except those excepted by section 12, supra, should come under the operation of article 3 as amended by said act, and that that act furnished the rules of procedure for the election in question here, so far as the same was applicable to such an election (section 855, supra), which required that such election should be held and conducted “in all respects the same as in elections for state and county officers as far as the laws in relation thereto are applicable.”
There are of course many provisions of the law that are not applicable to an election of this character. With these we have nothing to do. Of those that are, the provisions contained in sections 4756, 4772, 4775, 4776, 4779, 4780, 4781, 4784 and 4785 of article 3, as amended by the law of 1891; made for the purpose of securing freedom of choice and the purity of the ballot, are significant and applicable. The salient features of the system presented by the provisions contained in these sections are that at such an election no ballot shall be cast or counted except one printed at the phblic expense, provided by public officers, indorsed by two of them in a certain manner, delivered by them to the voter, and by him prepared alone in a certain manner in a private place provided for that purpose, screened from the observation of others, folded so as to conceal the face and expose the indorsement, and forthwith voted before the voter leaves the polling place.
This conclusion renders it unnecessary to consider the other objections urged against the validity of the proceedings subsequent to the election.
IY. We find no error in the ruling of the circuit court adjudging the costs against plaintiffs of the continuance of January 25, 1891, made necessary by the amendment of their petition.
The judgment of the circuit court will be reversed and the cause remanded to the circuit court of Greene county with directions to reinstate the plaintiffs’ bill and enter a decree in their favor in accordance with the prayer thereof.