274 Mo. 551 | Mo. | 1918
I. In this case it is stipulated that the petition for mandamus is to he treated as and for the alternative writ ordered by this court. The object of the suit is to compel the State Auditor to register bonds of the city of Marshall for $75,000, which were authorized at a special election held on June 26, 1916, to raise funds wherewith to build or buy an electric light plant to serve the city and its inhabitants.
The case was referred to a commissioner to take proof and report, which not having been made, a stipulation dispensing therewith and submitting the case on the evidence adduced before the commissioner, was filed March 4, 1918, with' leave to furnish briefs thereafter.
It is conceded in the brief of respondent that the narrative of the evidence in relator’s, brief is, in the main, fair and correct. It is, however, insisted that a peremptory writ should not issue. While many grounds for that contention are set forth in the return of respondents, only those urged in his brief and written
The foregoing are the only objections to the registration of the bonds relied on in the brief. They will be considered in order. Before doing this, however, it is well to note a preliminary point urged in the brief of respondent, that the writ invoked is not one of right, but is one which is rested in the discretion of the court. As to this contention, it need only be said that the true principle is, that mandamus is a civil remedy provided by law in certain cases, from which it necessarily follows that it is as much error to refuse it when warranted by all the facts and circumstances held in judgment, as it would be to refuse a lawful remedy for any other infracted legal right.
Such a refusal in either case would be an abuse of judicial power and discretion and would be correctable if an appeal or writ of error would lie. The specific redress provided by law for a violation of civil rights is ex debito justitiae and is not left to the unreviewable discretion of any court or judicial officer; for that would be repugnant to the spirit and philosophy of the law and genius of free government, neither of which could tolerate autocracy of administration in any sphere of service. In forms of government of which ours is the most advanced protagonist, the sole repository of supreme power is the law of the land, which decides only after a hearing and trial and must decree evenhanded justice to every human being. Such a state could not exist if its legal or governmental policy were vested in the unregulated discretion of any agent. In a free country a judge may apply, he cannot make the law.
II. Recurring to the vital questions in the case, the relator is a city of the third class and is invested with express statutory authority “to , , . ; . erect or to acquire by purchase or otherwise . . . electric light and power plant . . . to provide for the erection or the extension ^of the same by the issue of bonds therefor, and any such city . . . which may own ... or which may hereafter acquire by purchase . . . any of the plants, systems or works mentioned in this section, is hereby authorized and empowered to establish . . .. a hoard of public works” to take charge of and exercise control over such public utilities. [R. S. 1909, secs 9914, 9917; later re-enacted in substance, Laws 1911, p. 352.]
In addition to the express power given to cities specified in the section (R. S. 1909, sec. 9914; Laws 1911, p. 352.) the power to erect or buy electric light plants is given to all cities of the State by a distinct provision of the statutory law. [See R. S. 1909, sec. 9904.] To exercise these specific and general powers, statutory and constitutional provisions have been enacted and adopted which, by inter-relation, cover the entire subject and prescribe the method by and the extent to which the municipalities shall become indebted. When read in pari materia these sections plainly show that the cities, towns and villages of the State may incur indebtedness for purchasing as well as for constructing-electric plants. For example: Section 9544, Revised Statutes 1909, authorizes them to become indebted for charter purposes, or when authorized so to do “by any general law of the State,” etc. Aind Section 9904, by a general law of the State, empowers them “to acquire by purchase” electric plants. Hence it is clear that the two sections pf the statutes dovetail with each other and afford full statutory power on the part of relator to contract the indebtedness in question, either to build or to buy an electric plant. Again, Section 9664 is a practical rescript of Section 12a of Article 10 of the Constitution (State ex rel. v. Wilder, 200 Mo. l. c. 105) and was intended to enlarge the power granted (in
The clear and explicit grant of powers contained in the statutes and Constitution heretofore cited, leave no room for doubt that the city of Marshall had the statutory power to incur the indebtedness evidenced by the issuance of the bonds in question, under the facts in this record, which show that it did not exceed the constitutional proportion of the assessed value of its property ascertained as provided in the Constitution, at the date of the execution of itp bonds, provided the election, was legally held and the proposition to increase the indebtedness was legally carried. proper authorities, “shall order a special election to be held” upon prescribed notice; that “such election shall be held and judges thereof appointed as in ease of other elec-
III. The election was held at a time contemplated by law. Section 9545, Revised Statutes 1909', among other things provides that a city, town or village desiring to submit to its voters the question of the issuance of bonds like those under review, through its tions in such municipalities.” Section 9546 prescribes the form of the ballots; Section 9145 provides “a general election for the elective officers” of cities of the class of relator “shall be held on the first Tuesday in April . . . and every two years thereafter.” In accordance with the latter of these sections, Ordinance 99 of the City of Marshall, so far as pertinent, provided that -“on the first Tuesday in April, 1906,” and biennially thereafter “a general election” should be held in that city as prescribed by law for mayor, marshal, city attorney, police judge and other city officers. It is the theory of the learned counsel for respondent that.
In the case of State ex rel. Dexter y. Gordon, 251 Mo. 303, neither in the majority nor in the dissenting opinion was any importance attached to the fact that the election then under review was held in August and not on the first Tuesday in April. The effect of these rulings, particularly the one in State ex rel. Dexter v. Gordon, supra, where a mandamus to compel the registration of bonds was denied, is equivalent to a. holding that the statutes supra were not susceptible of a construction requiring a special election for the issuance of bonds to be held on the date of the general election, for if that had been the proper interpretation of the statutes, the ruling in the case of State ex rel. Dexter v. Cordon, supra, would have been placed on the ground that the issuance of the bonds was void because voted for at an election held on a date other than that required by law. No such conclusion was reached in that case and if it had been' permissible there would have been no occasion for the dissenting opinion filed in that ease. We therefore overrule the contention that the election for the issuance of the bonds involved in this proceeding was held on an improper date.
IV. We think the proposition to incur the indebtedness was lawfully carried at the election held for that purpose. We concede that the manner of holding the election under review is prescribed by what is known as the Australian Ballot Law (Art. 5, Ch. ^3, R. S. 1909). A careful consideration of the relevant testimony in this case satisfies us that in its essential features this election code of the State was substantially complied with and that the result of the election showed a two-thirds majority of those voting in favor of the proposition to incur the indebtedness evidenced by the bonds sought to be registered. Many of the points urged in favor of the contrary view by the learned counsel for respondent, while specifically different, were not generic
V. It is finally urged by the learned counsel for respondent that the election in this case was void because twenty-six illegal votes were east thereat by persons not entitled, on account of non-residence and other legal disqualifications, to participate in the election. A careful examination of the testimony discloses that the result of the election would not' be affected if these votes “were subtracted from those given in favor of incurring the indebtedness, since that would leave more than a two-thirds vote cast in favor of the- proposition. The total of the votes cast was 1251; 857 being for bonds and 394 against. It is evident that if 26 be deducted from those favoring the bonds, a two-thirds majority would remain. But the question is not before us in this case. Respondent sought to amend its return by specifying these grounds for annulling the election.. This court denied that motion for the reason that no such' issues can be raised in a mandamus proceeding to compel the. registration of bonds. Such a proceeding is not an election contest in -any sense. The duties of the State Auditor in the matter of the regis
Our conclusion . is that upon the presentation of the bonds to the State Auditor, under the circumstances and facts of the present record, a prima-facie showing was made that they had been issued in compliance with'
It follows that the alternative writ of mandamus heretofore awarded is made permanent. It is so ordered.