219 S.W.2d 650 | Mo. | 1949
Mandamus to compel the State Auditor to register bonds of the City of Berkeley, a fourth class city in St. Louis County, under Section 3306, R.S. 1939, Mo. Stat. Ann. The question for decision is whether the special election authorizing the bonds was invalid because of insufficient publication of notice.
[1] The notice of this election, held December 2, 1947, was published on November 13, 20 and 26, 1947, in a St. Louis County newspaper published in the nearby city of Ferguson, there being no newspaper in Berkeley. Thus the first publication was only nineteen days before the date of the election. Section 7369, R.S. 1939, Mo. Stat. Ann. (Amended Laws 1945, p. 1301) provides that for the purpose of testing the sense of the voters of such a city on a proposition to incur debt, the Council "shall order an election to be held of which they shall give notice signed by the City Clerk." It further provides that "such notice shall be advertised by publication once a week for three consecutive weeks in a newspaper published in the City" or *1240 if there be none "then in a newspaper published in the county wherein is situate such city;" and that "the first publication of the notice shall be made at least twenty-one days before, and the last shall be within two weeks of the date of the election." The State Auditor contends that the election was invalid because of failure to comply with this statute since the first notice was published less than twenty-one days before the date of the election.
Relator claims a substantial compliance, which it says was sufficient to validate the election, because in addition to the notice published three times in November there was also a news item published in the same Ferguson paper on October 23, 1947, giving the information contained in the November notice; and because actual notice of the election was given in the following manner: "Prior to the election maps were printed showing the road to be improved with the proceeds of the bonds proposed to be issued, and a copy of the map, upon which appeared the date of the election, was delivered to each residence in the City, to the householder or a member of his family, by an alderman of the City." There were 488 votes cast in the special election of December 2, 1947 and more than the required two-thirds of those voting voted for the increase of debt, namely, 342 votes for the[651] bonds and 145 against them. The average of all previous special elections held in the city was 242 votes. The average of all previous elections, general and special, was 394 votes; and the average of all previous general elections was 462 votes. The largest vote previously cast in a special election was 593, in June 1947, and in a previous general election, 702 in 1940.
Relator relies on cases such as Weisgerber v. Nez Perce County, (Idaho) 197 P. 562 and Hill v. Skinner, (N.C.)
Many cases in support of each of these conflicting views are collected and discussed in an annotation in 119 A.L.R. 661. [See also 18 Am. Jur. 247, §§ 109-111; 43 Am. Jur. 340, § 86; 29 C.J.S. 95, §§ 72-74; 1 Jones Bonds Bond Securities 203, § 212; 5 McQuillin, Municipal Corporations 1405, § 2356; State ex rel. McNeill v. Long,
Likewise, in McPike v. Pen,
In some cases, the courts have found that the wording of the applicable statute did not require holding that the notice requirements were mandatory. An example is Phillips v. City of Rock Hill, (S.C.) *1243
Our Section 7369 does say that notice of such election shall be given in a certain specified way; and our conclusion is that the time of notice specified therein is a mandatory requirement which must be complied with to have a valid special election authorizing an increase in the indebtedness of the City. The Legislature was very specific in stating these requirements as to time of notice, and used mandatory language concerning them, and we do not think we should undertake to modify them or hold that anything less is a substantial compliance with them. Variations as to form of notice or of ballots, which could not mislead voters, may reasonably be held to be substantial compliance. [State ex rel. Mercer County v. Gordon,
[2] Relator also says that we should not hold the bonds invalid because courts have no jurisdiction to inquire into the validity of a bond election in the absence of a specific statute giving such jurisdiction, citing State ex rel. Wahl v. Speer,
The alternative writ of mandamus heretofore issued is quashed. All concur.