| Mo. | Jun 6, 1893
This is an original proceeding for a mandamus to the defendant, as state auditor, to require him to register certain bonds of the city of Tarkio. His refusal to register them raises the question of their validity, which is the only issue in the case. The sufficiency of the plaintiff’s petition to warrant the issuance of a peremptory writ is disputed by defendant’s demurrer, on which the cause is now submitted. .
It appears from the petition that Tarkio is a city of the fourth class, governed by the general charter applicable to such cities. Revised Statutes, 1889, ch. 30, art. 5.
' In November, 1891, the mayor and board of aider-men of the city adopted the following ordinance:
It was further enacted that the ordinance should take effect and be in force from and after its passage and approval.
Afterwards another ordinance was adopted, directing ballots to be printed for the special election, and prescribing that they should read thus:
“Eor increase of debt — yes.
“For increase of debt — no.
“Erase the clause you do not want.”
Judges for the election were appointed by the mayor and aldermen, and, accordingly, the election was held December 1, 1891. It is not necessary to set out, particularly, the other steps taken in the matter of the election further than to say that they conformed substantially to the general law on that subject in force prior to the adoption of the ballot reform act of 1889 (Eevised Statutes, 1889, ch. 60, art. 3, as amended; Laws, 1891, p. 133). But they did not conform to that act. On the contrary, they departed from it in very many substantial respects; indeed, to the full extent of its difference from the old law.
The returns of the special election show a poll of two hundred and thirty-five votes, of which two hundred and twelve were in the affirmative and twenty-three in the negative. This result was regularly published. In due course the bonds were prepared, and the usual steps toward their issue followed, until
It is conceded that the election mentioned was not conducted in accordance with the ballot reform law then in force, but on entirely different principles.
The claim is made that that law was not intended to apply to special city elections, such as that here in view.
By the terms of the first enactment introducing the Australian ballot system in Missouri, it was declared not applicable “to elections for public officers determined otherwise than by ballot, to a school, township or village election, when no state or county, officers are to be voted for, nor to any special election held in only one county.” Revised Statutes, 1889, sec. 4792. Or to cities and towns of less than five thousand inhabitants. Revised Statutes, 1889, sec. 4794.
But by the later law, which went into force in June, 1891, the exception based upon population was repealed, and section 4792 was amended so as to read as follows:
“Section 4792. This article shall, not apply to elections for public offices determined otherwise than by ballot, to township or village elections, to school elections or elections of county commissioners of public schools, or elections of road overseers.”
The particularity with which the exceptional classes of elections are enumerated, indicates plainly the legislative intent to apply the Australian system to those not excepted, including such elections as that in question now. The supreme court so held in the recent case of Gaston v. Lamkin (1893), 115 Mo. 20" court="Mo." date_filed="1893-03-20" href="https://app.midpage.ai/document/gaston-v-lamkin-8010852?utm_source=webapp" opinion_id="8010852">115 Mo. 20, in which a county election in July, 1891, to ascertain the public will concerning the creation of an indebtedness for building a court-house was adjudged
The demurrer to the petition is sustained, and the writ denied.