debt, was, at law, the absolute owner of the mortgaged property. That case, however, while declaring that the legal title is in the mortgagee, recognizes the equitable interest of the mortgagor, his right in equity to redeem. On a second appeal that doctrine was reaffirmed. 8 Mo. 615. In Yeldell & Barnes v. Stemmons, 15 Mo. 443, it was said: enacted for the first time in 1877 it would be property, after the maturity of the mortgage unconstitutional because the general law) could be made to apply. When the Legislature passed the act of 1877 it had the constitutional power to apply the general law to St. Louis, and to repeal the special law, but it had no power to enact such special legislation. It may be contended that the Legislature did not enact the special law in 1877, but merely recognized it as an existing law. In answer say that it coupled with such recognition a provision that the general law should apply to St. Louis. As those two laws are not alike, and one must fail in those particulars in which they differ, we think the preference should be given to the one which would have been constitutional if it had been first enacted in 1877, over the other which, under the same circumstances, would have been unconstitutional. Statutes should be so construed as to harmonize them as nearly as possible with the Constitution. We still think that the doctrine of State, on Inf., V. Koeln, cited in the original opinion, is appli cable here. v. [2] II. Respondent asserts that the claim made by Mrs. Filler did not cover the entire interest in the property, but that it shows that Joseph Filler still owned an equity of redemption in 48 shares of the stock levied on. It is contended that it was the duty of the sheriff, when such claim was made, to release the interest of Mrs. Filler as mortgagee, and to sell the equity of redemption which was in the execution debtor. The claim of Mrs. Filler is as follows: "To Louis Nolte, Esq., Sheriff, City of St. Louis, Missouri. Take notice, that I, the undersigned, Pessie Filler, hereby claim the right and title in and to the shares of stock in the Joplin Mercantile Company, a Missouri corporation, heretofore levied upon by you under and by virtue of execution No. 145, returnable to the October term, 1912, of the St. Louis circuit court, in favor of Missouri Poultry & Game Company, a corporation, and against Joseph Filler, defendant: Forty-eight (48) shares of said stock having been pledged and delivered to me by said Joseph Filler on or about December 16, 1911, as collateral security to protect me against loss by reason of my indorsement of certain negotiable promissory notes payable to the Jefferson Bank of St. Louis, Missouri, in the sum of about eight thousand ($8,000.00) dollars, and to further secure certain notes, payable to my order, made and executed by said Joplin Mercantile Company, for money loaned to it by me, in the sum of about five thousand ($5,000.00) dollars. That there is still due on said notes about eleven thousand ($11,000.00) dollars. Fifty (50) shares of said stock having been acquired by me on or about November 14, 1911, by purchase from Geo. L. Hirt and George Whitener, the former owners thereof. "Pessie Filler." That claim shows that the debt for which the stock was pledged was due when the claim was filed, and it shows that the stock was then in the hands of the pledgee, Mrs. Filler. In Robinson v. Campbell, 8 Mo. 365, it was held that the mortgagee of personal "Our statute expressly subjects equitable interests in land to sale; but not equitable chattel interests. At law, after forfeiture, the mortgagor has no interest in the chattels mortgaged. The right of redemption is a mere chose in action, not the subject of the levy and sale upon execution." In Sexton v. Monks, 16 Mo. 156, it was held of personal property in the hands of the that the interest of the mortgagor or pledgor mortgagee or pledgee is not subject to sale of the mortgagor of personal property, after under execution. That the equitable interest tion is recognized in Boyce's Adm'r v. Smith's forfeiture, is not subject to sale under execuAdm'r, 16 Mo. 317, Young v. Schofield, 132 Mo. 414, 34 S. W. 881, and Woodson v. CarMo. 650, 34 S. W. 497, Fahy v. Gordon, 133 son, 135 Mo. 521, 35 S. W. 1005, 37 S. W. 197. Where, after the maturity of the mortgage, an execution is levied on the mortgaged property as the property of the mortgagor, the mortgagee can recover the possession from the officer by suit in replevin. Turner v. Langdon, 85 Mo. 438; Grocery Co. v. McDonald, 118 Mo. App. 471, 95 S. W. 279. Respondent cites Foster v. Potter, 37 Mo. 525, as holding that the interest of the mortgagor in shares of corporate stock is subject to sale under execution. So it does, but in that case the mortgage debt was not due, and the ruling was expressly placed on that ground (37 Mo. loc. cit. 532). That case proceeded on the theory that the law governing the sale of shares of stock in a corporation under an execution is the same as that in regard to such sale of other personal property so far as it relates to the point now under consideration. State, to use, v. McKellop, 40 Mo. 184, and State, to use, v. Koch, 47 Mo. 582, were cases in which the beneficiaries in deeds of trust on personal property made the statutory claim to the property when it was levied on under execution against the mortgagors. It was held that the mortgagees had the right to make the claims and to sue on the bonds. It does not appear whether the mortgage debts were due in those cases. The claim made by Mrs. Filler showed that she was the mortgagee in possession after the maturity of the debt. It thus appears that there was no interest in Joseph Filler that was then subject to execution. This case was certified here because Reynolds, P. J., deemed the opinion of the Court of Appeals in conflict with Metzner v. Graham, 66 Mo. 653. Respondent says that the latter case was impliedly overruled by State ex rel. v. Case, 77 Mo. 247. In the first of those two cases this court, speaking of the liability of a sheriff for failure to properly execute a writ of attachment, said: "It cannot be that mere technical breach of duty, or abstract remissness, unaccompanied by resulting injury, can form the basis for a substantial recovery, not at all proportionate to the actual damages sustained." In that case, so far as appears, the officer acted in good faith and from error of judgment. In the latter one of those cases it was held that the sheriff is liable for a false return on an execution to the full amount of the execution debt. That is by no means an overruling of the Metzner Case, which still stands as good law. This case was properly certified here. The motion for a rehearing is overruled. PER CURIAM. The foregoing opinion and the opinion on motion for rehearing filed herewith of ROY, C., are adopted as the opinion of the court in banc. WILLIAMS, WOODSON, and BLAIR, JJ., concur. FARIS, J., concurs in result and in opinion of GRAVES, C. J. WALKER and BOND, JJ., dissent. GRAVES, C. J., concurs in separate opinion. (274 Mo. 551) STATE ex rel. CITY OF MARSHALL v. (Supreme Court of Missouri. In Banc. April Issuance of mandamus does not rest in the unregulated discretion of the court, but it is as much error to refuse it when warranted by all refuse a lawful remedy for any other infracted the facts and circumstances as it would be to legal right. 2. MUNICIPAL CORPORATIONS_916-BONDS FOR PURCHASE OF ELECTRIC LIGHT PLANT. The authority of cities of the third class to issue bonds for the purchase of electric light plants, given by Rev. St. 1909, § 9914 (re-enacted by Laws 1911, p. 352), and sections 9917, 9904, 9544, is not limited by Const. art. 10, § 12a, of which section 9664, Rev. St. 1909,' is a practical rescript, as to increased debt limit for certain purposes, to cases where the indebtedness to be secured is for an amount beyond the 5 per cent. originally permitted to be incur red and within an additional 5 per cent.; but the constitutional provision was intended to give such cities the right to exercise the powers therein granted in any case where the indebtedness, whatever its amount, did not exceed the aggregate of 10 per cent. therein specified. 3. CONSTITUTIONAL LAW 14-CONSTRUC TION. Provisions of the Constitution, like statutes dealing with a single subject, must be interpreted according to the plain meaning of the language employed and the paramount purpose of its framers to provide a rational, congruous, and symmetrical chart of government. 4. MUNICIPAL CORPORATIONS ELECTION TO DETERMINE ISSUE OF ELECTRIC LIGHT PLANT BONDS. 918(1) GRAVES, C. J. I concur in the result only of the learned commissioner's opinion in this case. To my mind, the case of State ex rel. v. O'Neil Lumber Co. et al., 170 Mo. 7, 70 S. W. 121, settles the question as to which law is applicable. The effect of that ruling is that the sheriff is governed by the prior Rev. St. 1909, § 9545, providing that a muspecial law, and not by the later general law. nicipality may order a special election to subThe commissioner rules contra. To this rul- electric light plant bonds, etc., section 9546, preThe commissioner rules contra. To this rul-mit to voters the question of the issuance of ing I do not agree, in view of the O'Neil scribing form of ballots, and section 9145, as Lumber Co. Case, supra. to date of general election in cities of the third class, do not require that such special election be held in such cities on the date fixed for general elections; the provision as to such elections that they shall be held and the judges thereof appointed as in case of other elections referring to the manner and not time of holding them. 5. MANDAMUS 172-SCOPE OF INQUIRY — REGISTRATION OF BONDS. [3] However, I do agree to the reversal of the judgment, and the remanding of the cause, as called for by the opinion. My reasons therefor are different from those specified by the commissioner. The record shows the utmost good faith of the sheriff in the handling of the execution. It fails to show any negligence or willful misconduct. It shows an earnest effort to try to follow the law, as he was advised upon that subject. Under such state of facts, I do not think that he can be held for more than the real value of the stock levied upon by him. If this stock was worth at the time of levy the amount of the execution, the sheriff would be liable for the amount of such execution, but on the other hand, if it was not worth such amount, the sheriff should not be held for more than the actual value at the date of the levy. These views would call for the reversal of the judgment and a remanding of the cause, which is the result reached by the commissioner's opinion. For these reasons I concur in the result only of that opinion. FARIS, J., concurs in these views. In view of Rev. St. 1909, § 1275, as to registration of municipal bonds and effect of registration, whether or not voters at election to determine the issuance of such bonds were disqualified by conviction of crime or nonresidency cannot be inquired into in a mandamus proceeding to compel registration of bonds. 6. MUNICIPAL CORPORATIONS TRATION OF BONDS. 936–REGIS Under such statute, upon presentation of municipal bonds to the state auditor and a prima facie showing made that they have been issued in compliance with law, it is his specific duty to register them as required by law. Faris, J., dissenting. Original proceeding for mandamus by the State of Missouri, on the relation of City of Marshall, against George E. Hackmann, State Auditor. Alternative writ made permanent. Richard L. Goode, of St. Louis, and William T. Bellamy and Virgil V. Huff, both of Marshall, for relator. Frank W. McAllister, Atty. Gen., S. P. Howell, Asst. Atty. Gen., and | cides only after a hearing and trial and must Fordyce, Holliday & White, of St. Louis, for decree even-handed justice to every human respondent. BOND, J. I. In this case it is stipulated that the petition for mandamus is to be 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 argument need be ruled. In substance these are: First, that the city of Marshall had no statutory authority to issue bonds to purchase an electric plant; second, that the special election authorizing the bonds was not held on the day required by law; third, that the election was illegal because not held in conformity with the requirements of the Australian ballot system. R. S. 1909, §§ 58895923, inclusive, and section 9921. [1] 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 justitiæ, 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 de 203 S.W.-61 being. Such a state could not exist if its legal or governmental polity 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 acquire by purchase or otherwise * electric light and power plants 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 board of public works" to take charge of and exercise control over such public utilities. R. S. 1909, §§ 9914, 9917; later re-enacted in substance, Laws 1911, p. 352. [2, 3] In addition to the express power given to cities specified in the section (R. S. 1909, § 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, § 9901). To exercise these specific and general powers, statutory and constitutional provisions have been enacted and adopted which, by interrelation, 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 of the present revision authorizes them to become indebted for charter purposes, or when authorized so to do "by any general law of the state," etc. And 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 of 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. loc. cit. 105, 98 S. W. 465), and was intended to enlarge the power granted (in section 12, article 10, of the Constitution) municipalities to acquire electric plants and all other public utilities. This amendatory provision of the Constitution provides for increasing the limit of indebtedness authorized by the original provision to an additional 5 per cent. of the assessed value of the taxable property of the cities above the previous 5 per cent. permitted in the former provision of the Constitution. The latter provision of the Constitution further amends the former by providing that the in- like those under review, through its proper debtedness thus permitted to be increased shall be usable "for the purpose of purchasing or constructing electric or other light plants." It would be a narrow, if not absurd, view of this amendment to hold that it did not intend to authorize the creation of an indebtedness for purchasing such a plant, unless the city in order to do so would have to avail itself of the 5 per cent. additional taxation which the amendment gave it the power to levy. The obvious design of the amendment of the Constitution was to foster municipal ownership by increasing the amount of public indebtedness for the acquisition, whether by erection or purchase, of the great necessaries of urban life, and to grant power to cities to become indebted for that purpose in any sum not exceeding a total of 10 per cent. of the assessed value of their property, to be ascertained as provided in the original provisions of the Constitution, to wit, section 12 of article 10. It was not the intent of the new section to forbid a city to issue bonds unless the indebtedness to be secured was for an amount beyond the 5 per cent. originally permitted to be incurred and within an additional 5 per cent.; but it was the manifest purpose of the amendatory provision of the Constitution to give to such cities the right to exercise the powers and franchises therein granted in any case where the indebtedness, whatever its amount, did not exceed the aggregate of 10 per cent. specified in the amendatory provision. Any other theory of the purposes of the amendatory provision would be inconsistent with its language and object and in contravention of the established canon of construction that provisions of the Constitution, like statutes dealing with a single subject, must be interpreted according to the plain meaning of the language employed and the paramount purpose of its framers to provide a rational, congruous, and symmetrical chart of government. Calland v. Springfield, 264 Mo. loc. cit. 301, 302, 174 S. W. 396. 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 its bonds, provided the election was legally held and the proposition to increase the indebtedness was legally carried. [4] III. The election was held at a time contemplated by law. Section 9545 (R. S. 1909), among other things, provides that a city, town, or village desiring to submit to its authorities, "shall order a special election to be held" upon prescribed notice; that "such election shall be held and the judges thereof appointed as in case of other elections in such municipalities." Section .9546 prescribes the form of the ballots; section 9145 provides "a general election of 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. The pro It is the theory of the learned counsel for respondent that the foregoing statutes and ordinances by cross-reference imply that the "special election" provided in the first section above quoted, must be held on the date fixed for "general elections" in the relator city. We are unable to concur in that view. The only necessary intendment of the statutes and ordinance supra is that the date for the holding of "general elections" in the city of Marshall must take place biennially on the first Tuesday of April. There is nothing in the language of these statutes and ordinance which necessarily implies that "special elections" which cities like the relator are authorized to call for the purpose of incurring municipal indebtedness should be held on the fixed date prescribed by law and ordinance for the election of officers of such cities. vision with reference to such special elections (viz. such elections shall be held and the judges thereof appointed as in the case of other elections in such municipalities [R. S. 1909, § 9545, supra]) only requires similarity as to the method and manner of holding the two kinds of elections; it does not necessarily imply that they can only be held on the same date. Such a construction is not demanded by the terms of the statutes, and would result in much inconvenience and delay in the exercise by such cities and towns of their lawful rights to erect or purchase public utilities indispensable for the public welfare. In cases wherein this court has passed upon the exercise of such powers, it was not thought indispensable that such elections should be held on the date prescribed by law for general elections in such towns and cities. In a recent deliverance by this court in banc (State ex rel. City of Memphis v. Hackman [No. 20433] 202 S. W. 7, opinion not yet officially reported), it appeared that an election for the identical purpose of the one under review was held on February 28, 1916. In that case a peremptory writ of mandamus was awarded to compel the registration of bonds. So also in the following cases the elections of the kind under prescribed by law for the holding of general of State ex rel. v. Hackman, supra, we are elections: State ex rel. Carthage v. Gordon, 217 Mo. 103, 116 S. W. 1099; State ex rel. Dexter v. Gordon, 251 Mo. 303, 158 S. W. 683; Bauch v. City of Cabool, 165 Mo. App. 486, 148 S. W. 1003. not prepared to say that the complaints of the respondent in these respects involve substantial violations of the Australian ballot law, and accordingly overrule the assignment that such law was contravened in the election in the instant case. [5] V. It is finally urged by the learned counsel for respondent that the election in this case was void because 26 illegal votes were cast thereat by persons not entitled, on account of nonresidence and other legal disqualifications, to participate in the election. In the case of State ex rel. Dexter v. Gordon, 251 Mo. 303; 158 S. W. 683, supra, 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. Gor-A careful examination of the testimony disdon, 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. Gordon, 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 case. We therefore overrule the contention that the election for the issuance of the bonds involved in this proceeding was held on an improper date. closes that the result of the election would not be affected if these votes were subtracted from those given in favor of the incurring of 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 1,251; 857 being for bonds and 394 against. It is evident that if 26 be deducted from those favoring the bonds, a two-thirds major(ity 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 registration of bonds of municipalities are regulated and prescribed IV. We think the proposition to incur the in section 1275 of the revision of 1909, which indebtedness was lawfully carried at the elec- provides, among other things, for the registion held for that purpose. We concede that tration of municipal bonds in the same manthe manner of holding the election under re-tificate "indorsed by the auditor on the bonds ner state bonds are registered and for a cerview is prescribed by what is known as the Australian ballot law. Article 5, c. 43, 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 generically unlike the objections urged to the registration of the bonds in the unreported manuscript decision of State ex rel. city of Memphis v. Hackman, supra. The effect of the doctrine announced in that case is that, absent fraud or a mandatory statute, an election like the one under review will not be set aside for mere irregularities in the method of voting, such as relate to furnishing booths, the duties of the judges of election, and the certification of the result of the election. See, also, Bine v. Jackson Co., 266 Mo. loc. cit. 240, 181 S. W. 36; Bowers v. Smith, 111 Mo. 45, 20 S. W. 101, 16 L. R. A. 754, 33 Am. St. Rep. 491; and Skelton v. Ulen, 217 Mo. 383, 117 S. W. 32. Under the authority * to issue that all conditions of the laws have been |