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enacted for the first time in 1877 it would be property, after the maturity of the mortgage unconstitutional because the general law debt, was, at law, the absolute owner of the could be made to apply. When the Legisla- mortgaged property. That case, however, ture passed the act of 1877 it had the consti- while declaring that the legal title is in the tutional power to apply the general law to mortgagee, recognizes the equitable interest St. Louis, and to repeal the special law, but of the mortgagor, his right in equity to reit had no power to enact such special legis- deem. On a second appeal that doctrine was lation. It may be contended that the Leg-reaffirmed. 8 Mo. 615. In Yeldell & Barnes islature did not enact the special law in 1877, v. Stemmons, 15 Mo. 443, it was said: but merely recognized it as an existing law. "Our statute expressly subjects equitable inIn answer say that it coupled with such rec- terests in land to sale; but not equitable chatognition a provision that the general law mortgagor has no interest in the chattels mort

tel interests. At law, after forfeiture, the should apply to St. Louis. As those two laws gaged.

As those two laws gaged. The right of redemption is a mere are not alike, and one must fail in those par- chose in action, not the subject of the levy and ticulars in which they differ, we think the sale upon execution.” preference should be given to the one which

In Sexton v. Monks, 16 Mo. 156, it was held would have been constitutional if it had been first enacted in 1877, over the other which, of personal property in the hands of the

that the interest of the mortgagor or pledgor , under the same circumstances, would have been unconstitutional. Statutes should be so mortgagee or pledgee is not subject to sale construed as to harmonize them as nearly of the mortgagor of personal property, after

under execution. That the equitable interest as possible with the Constitution. We still think that the doctrine of State, on Inf., v. forfeiture, is not subject to sale under execuKoeln, cited in the original opinion, is appli- Adm'r, 16 Mo. 317, Young v. Schofield, 132

tion is recognized in Boyce's Adm'r v. Smith's cable here.

, . , [2] II. Respondent asserts that the claim Mo. 650, 34 S. W. 497, Fahy v. Gordon, 133 made by Mrs. Filler did not cover the entire Mo. 414, 34 S. W. 881, and Woodson v. Carinterest in the property, but that it shows son, 135 Mo. 521, 35 S. W. 1005, 37 S. W. 197.

Where, after the maturity of the mortgage, that Joseph Filler still owned an equity of an execution is levied on the mortgaged propredemption in 48 shares of the stock levied erty as the property of the mortgagor, the on. It is contended that it was the duty of mortgagee can recover the possession from

. the sheriff, when such claim was made, to re- the officer by suit in replevin. Turner v. lease the interest of Mrs. Filler as mort-Langdon, 85 Mo. 438; Grocery Co. v. McDongagee, and to sell the equity of redemption ald, 118 Mo. App. 471, 95 S. W. 279. which was in the execution debtor. The

Respondent cites Foster v. Potter, 37 Mo. claim of Mrs. Filler is as follows:

525, as holding that the interest of the mort. “To Louis Nolte, Esq., Sheriff, City of St. gagor in shares of corporate stock is subject

, I, dersigned, Pessie Filler, hereby claim 'the right to sale under execution. So it does, but in and title'in and to the shares of stock in the that case the mortgage debt was not due, and Joplin Mercantile Company, a Missouri corpo- the ruling was expressly placed on that ration, heretofore levied upon by you under and by virtue of execution No. 145, return- ground (37 Mo. loc. cit. 532). That case proable to the October term, 1912, of the St. ceeded on the theory that the law governing Louis circuit court, in favor of Missouri Poul- the sale of shares of stock in a corporation try & Game Company, a corporation, and under an execution is the same as that in reagainst Joseph Filler, defendant: Forty-eight (48) shares of said stock having been pledged gard to such sale of other personal property and delivered to me by said Joseph Filler on or so far as it relates to the point now under conabout December 16, 1911, as collateral security sideration State, to use, V. McKellop, 40 to protect me against loss by reason of my in- Mo. 184, and State, to use, v. Koch, 47 Mo. dorsement of certain negotiable promissory notes payable to the Jefferson Bank of St. 582, were cases in which the beneficiaries in Louis, Missouri, in the sum of about eight deeds of trust on personal property made the thousand ($8,000.00) dollars, and to further statutory claim to the property when it was secure certain notes, payable to my order, made and executed by said Joplin Mercantile' Com- / levied on under execution against the mortpany, for money loaned to it by me, in the sum gagors. It was held that the mortgagees had of about five thousand ($5,000.00) dollars. the right to make the claims and to sue on That there is still due on said notes about the bonds. It does not appear whether the eleven thousand ($11,000.00) dollars. Fifty (50) shares of said stock having been acquired mortgage debts were due in those cases. The by me on or about November 14, 1911, by pur- claim made by Mrs. Filler showed that she chase from Geo. L. Hirt and George White was the mortgagee in possession after the ner, the former owners thereof.

"Pessie Filler."

maturity of the debt. It thus appears that

there was no interest in Joseph Filler that That claim shows that the debt for which was then subject to execution. the stock was pledged was due when the This case was certified here because Reynclaim was filed, and it shows that the stock olds, P. J., deemed the opinion of the Court was then in the hands of the pledgee, Mrs. of Appeals in conflict with Metzner v. GraFiller. In Robinson v. Campbell, 8 Mo. 365, ham, 66 Mo. 653. Respondent says that the it was held that the mortgagee of personal latter case was impliedly overruled by State ex rel. V. Case, 77 Mo. 247. In the first of

(274 Mo. 551) those two cases this court, speaking of the STATE ex rel. CITY OF MARSHALL V. liability of a sheriff for failure to properly

HACKMANN, State Auditor. execute a writ of attachment, said:

(No. 19995.) "It cannot be that mere technical breach of (Supreme Court of Missouri. In Banc. April duty, or abstract remissness, unaccompanied by 25, 1918. Rehearing Denied May 17, 1918.) resulting injury, can form the basis for a substantial recovery, not at all proportionate to 1. MANDAMUS Ow7—DISCRETION. the actual damages sustained.”

Issuance of mandamus does not rest in the

unregulated discretion of the court, but it is as In that case, so far as appears, the officer much error to refuse it when warranted by all acted in good faith and from error of judg- refuse a lawful remedy for any other infracted

the facts and circumstances as it would be to ment. In the latter one of those cases it legal right. was held that the sheriff is liable for a false 2. MUNICIPAL CORPORATIONS Omw916—BONDS return on an execution to the full amount of FOR PURCHASE OF ELECTRIC LIGHT PLANT. the execution debt. That is by no means an

The authority of cities of the third class overruling of the Metzner Case, which still plants, given by Rev. St. 1909, $ 9914 (re-enact

to issue bonds for the purchase of electric light stands as good law. This case was properly ed by Laws 1911, p. 352), and sections 9917, certified here.

9904, 9544, is not limited by Const. art. 10, $ The motion for a rehearing is overruled. 12a, of which section 9664, Rev. St. 1909,' is

a practical rescript, as to increased debt limit

for certain purposes, to cases where the indebtPER CURIAM. The foregoing opinion and edness to be secured is for an amount beyond the opinion on motion for rehearing filed here- the 5 per cent. originally permitted to be incurwith of ROY, C., are adopted as the opinion the constitutional provision was intended to

red and within an additional 5 per cent.; but of the court in banc. WILLIAMS, WOOD- give such cities the right to exercise the powers SON, and BLAIR, JJ., concur. FARIS, J., therein granted in any case where the indebtedconcurs in result and in opinion of GRAVES. ness, whatever its amount, did not exceed the C. J. WALKER and BOND, JJ., dissent. 3. CONSTITUTIONAL LAW Ow14 - CONSTRUCC. J. WALKER and BOND, JJ., dissent: aggregate of 10 per cent. therein specified. GRAVES, C. J., concurs in separate opinion. TION.

Provisions of the Constitution, like statutes GRAVES, C. J. I concur in the result only ed according to the plain meaning of the lan

dealing with a single subject, must be interpretof the learned commissioner's opinion in this guage employed and the paramount purpose of case. To my mind, the case of State ,ex rel. its framers to provide a rational, congruous, and v. O'Neil Lumber Co. et al., 170 Mo. 7, 70 s. symmetrical chart of government. W. 121, settles the question as to which law


ELECTION TO DETERMINE ISSUE OF ELECTRIC is applicable. The effect of that ruling is

LIGHT PLANT BONDS. 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- mit to voters the question of the issuance of

electric light plant bonds, etc., section 9516, preing 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 [3] However, I do agree to the reversal of class, do not require that such special election the judgment, and the remanding of the eral elections; the provision as to such elections

be held in such cities on the date fixed for gencause, as called for by the opinion. My rea- that they shall be held and the judges thereof sons therefor are different from those speci- appointed as in case of other elections referring fied by the commissioner. The record shows to the manner and not time of holding them. the utmost good faith of the sheriff in the 5. MANDAMUS Ow172 - SCOPE OF INQUIRY –

REGISTRATION OF BONDS. handling of the execution. It fails to show any In view of Rev. St. 1909, $ 1275, as to regisnegligence or willful misconduct. It shows tration of municipal bonds and effect of registraan earnest effort to try to follow the law, as tion, whether or not voters at election to deter

mine the issuance of such bonds were disqualified he was advised upon that subject. Under

by conviction of crime or nonresidency cannot such state of facts, I do not think that he can be inquired into in a mandamus proceeding to be held for more than the real value of the compel registration of bonds. stock levied upon by him. If this stock was 6. MUNICIPAL CORPORATIONS Ow936–REGISworth at the time of levy the amount of the

TRATION OF BONDS. execution, the sheriff would be liable for the municipal bonds to the state auditor and a

Under such statute, upon presentation of amount of such execution, but on the other prima facie showing made that they have been hand, if it was not worth such amount, the issued in compliance with law, it is his specific sheriff should not be held for more than the duty to register them as required by law. actual value at the date of the levy. These

Faris, J., dissenting. views would call for the reversal of the judg- Original proceeding for mandamus by the ment and a remanding of the cause, which State of Missouri, on the relation of City of is the result reached by the commissioner's Marshall, against George E. Hackmann, State opinion. For these reasons I concur in the Auditor. Alternative writ made permanent. result only of that opinion.

Richard L. Goode, of St. Louis, and William

T. Bellamy and Virgil V. Huff, both of MarFARIS, J., concurs in these views.

shall, for relator. Frank W. McAllister, Atty.

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* *

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.

being. Such a state could not exist if its le

gal or governmental polity were vested in BOND, J. I. In this case it is stipulated the unregulated discretion of any agent. In that the petition for mandamus is to be treat- a free country a judge may apply, he cannot ed as and for the alternative writ ordered by make, the law. this court. The object of the suit is to com- II. Recurring to the vital questions in the pel the state auditor to register bonds of case, the relator is a city of the third class and the city of Marshall for $75,000 which were is invested with express statutory authority authorized at a special election held on June "to erect or acquire by purchase or otherwise 26, 1916, to raise funds wherewith to build * * electric light and power plants or buy an electric light plant to serve the

to provide for the erection or the city and its inhabitants. The case was re-extension of the same by the issue of bonds ferred to a commissioner to take proof and therefor and any such city * * * which report, which not having been made, a stipu- may own

or which may hereafter lation dispensing therewith and submitting acquire by purchase * * any of the the case on the evidence adduced before the plants, systems or works mentioned in this commissioner was filed March 4, 1918, with section, is hereby authorized and empowered leave to furnish briefs thereafter.

to establish

a board of public It is conceded in the brief of respondent works” to take charge of and exercise conthat the narrative of the evidence in relator's trol over such public utilities. R. S. 1909, SS brief is, in the main, fair and correct. It is 9914, 9917; later re-enacted in substance, however, insisted that a peremptory writ Laws 1911, p. 352. should not issue. While many grounds for [2, 3] In addition to the express power givthat contention are set forth in the return of en to cities specified in the section (R. S. respondents, only those urged in his brief and 1909, $ 9914; Laws 1911, p. 352), the power written argument need be ruled. In substance to erect or buy electric light plants is given these are: First, that the city of Marshall to all cities of the state by a distinct provi

, had no statutory authority to issue bonds to sion of the statutory law (see R. S. 1909, $ purchase an electric plant; second, that the 9904). To exercise these specific and general special election authorizing the bonds was not powers, statutory and constitutional proviheld on the day required by law; third, that sions have been enacted and adopted which, the election was illegal because not held in by interrelation, cover the entire subject and conformity with the requirements of the Aus- prescribe the method by and the extent to tralian ballot system. R. S. 1909, $8 5889– which the municipalities shall become indebt5923, inclusive, and section 9921.

ed. When read in pari materia these sections [1] The foregoing are the only objections plainly show that the cities, towns, and vilto the registration of the bonds relied on in lages of the state may incur indebtedness for the brief. They will be considered in order. purchasing as well as for constructing elecBefore doing this, however, it is well to note tric plants. For example: Section 9544 of a preliminary point urged in the brief of re- the present revision authorizes them to bespondent, that the writ invoked is not one of come indebted for charter purposes, or when right, but is one which is rested in the discre- authorized so to do “by any general law of tion of the court. As to this contention, it the state,” etc. And section 9904, by a generneed only be said that the true principle is al law of the state, empowers them “to acthat mandamus is a civil remedy provided by quire by purchase” electric plants. Hence law in certain cases, from which it necessa- it is clear that the two sections of the statrily follows that it is as much error to refuse utes dovetail with each other and afford full it when warranted by all the facts and cir- statutory power on the part of relator to concumstances held in judgment as it would be tract the indebtedness in question, either to to refuse a lawful remedy for any other in- build or to buy an electric plant. Again, secfracted legal right. Such a refusal in either tion 9664 is a practical rescript of section 12a case would be an abuse of judicial power and of article 10 of the Constitution (State ex discretion, and would be correctable if an ap- rel. v. Wilder, 200 Mo. loc. cit. 105, 98 S. W. peal or writ of error would lie. The specif- 465), and was intended to enlarge the power ic redress provided by law for a violation of granted (in section 12, article 10, of the Concivil rights is ex debito justitiæ, and is not stitution) municipalities to acquire electric left to the unreviewable discretion of any plants and all other public utilities. This court or judicial officer; for that would be amendatory provision of the Constitution repugnant to the spirit and philosophy of the provides for increasing the limit of indebtedlaw and genius of free government, neither of ness authorized by the original provision to which could tolerate autocracy of administra- an additional 5 per cent. of the assessed valtion in any sphere of service. In forms of ue of the taxable property of the cities above government of which ours is the most ad- the previous 5 per cent. permitted in the vanced protagonist, the sole repository of su- former provision of the Constitution. The preme power is the law of the land, which de-latter provision of the Constitution further * and

203 S.W.-61

amends the former by providing that the in- , like those under review, through its proper debtedness thus permitted to be increased authorities, "shall order a special election to shall be usable "for the purpose of pur- be held" upon prescribed notice; that "such chasing or constructing electric or other election shall be held and the judges thereof light plants."

appointed as in case of other elections in such It would be a narrow, if not absurd, view municipalities." Section .9546 prescribes the of this amendment to hold that it did not form of the ballots; section 9145 provides "a intend to authorize the creation of an indebt general election of the elective officers" of edness for purchasing such a plant, unless cities of the class of relator "shall be held on the city in order to do so would have to the first Tuesday in April avail itself of the 5 per cent. additional tax- every two years thereafter.” In accordance ation which the amendment gave it the pow. with the latter of these sections, Ordinance er to levy. The obvious design of the amend- 99 of the city of Marshall, so far as pertiment of the Constitution was to foster munic- nent, provided that “on the first Tuesday in ipal ownership by increasing the amount April, 1906,” and biennially thereafter “a of public indebtedness for the acquisition, general election” should be held in that city whether by erection or purchase, of the great as prescribed by law for mayor, marshal, necessaries of urban life, and to grant power city attorney, police judge, and other city offito cities to become indebted for that purpose cers. in any sum not exceeding a total of 10 per It is the theory of the learned counsel for cent. of the assessed value of their property, respondent that the foregoing statutes and to be ascertained as provided in the original ordinances by cross-reference imply that the provisions of the Constitution, to wit, sec- "special election” provided in the first section 12 of article 10. It was not the intent tion above quoted, must be held on the date of the new section to forbid a city to issue fixed for "general elections" in the relator bonds unless the indebtedness to be secured city. We are unable to concur in that view. was for an amount beyond the 5 per cent. The only necessary intendment of the statoriginally permitted to be incurred and utes and ordinance supra is that the date for within an additional 5 per cent.; but it was the holding of “general elections” in the city the manifest purpose of the amendatory pro- of Marshall must take place biennially on the vision of the Constitution to give to such first Tuesday of April. There is nothing in cities the right to exercise the powers and the language of these statutes and ordinance franchises therein granted in any case where which necessarily implies that "special electhe indebtedness, whatever its amount, did tions" which cities like the relator are authornot exceed the aggregate of 10 per cent. spec-ized to call for the purpose of incurring muified in the amendatory provision. Any oth- nicipal indebtedness should be held on the fixer theory of the purposes of the amendatory ed date prescribed by law and ordinance for provision would be inconsistent with its lan- the election of officers of such cities.

The proguage and object and in contravention of the vision with reference to such special elections established canon of construction that pro- (viz, such elections shall be held and the judgvisions of the Constitution, like statutes es thereof appointed as in the case of other dealing with a single subject, must be inter- elections in such municipalities [R. S. 1909, $ preted according to the plain meaning of the 9545, supra]) only requires similarity as to the language employed and the paramount pur- method and manner of holding the two kinds pose of its framers to provide a rational, of elections; it does not necessarily imply congruous, and symmetrical chart of govern- that they can only be held on the same date. ment. Calland v. Springfield, 264 Mo. loc. cit. Such a construction is not demanded by the 301, 302, 174 S. W. 396.

terms of the statutes, and would result in The clear and explicit grant of powers much inconvenience and delay in the exercise contained in the statutes and Constitution by such cities and towns of their lawful rights heretofore cited leave no room for doubt that to erect or purchase public utilities indispenthe city of Marshall had the statutory power sable for the public welfare. In cases whereto incur the indebtedness evidenced by the is in this court has passed upon the exercise of suance of the bonds in question, under the such powers, it was not thought indispensable facts in this record, which show that it did that such elections should be held on the date not exceed the constitutional proportion of prescribed by law for general elections in the assessed value of its property ascertained such towns and cities. In a recent deliveras provided in the Constitution, at the date ance by this court in banc (State ex rel. City of the execution of its bonds, provided the of Memphis v. Hackman [No. 20433] 202 S. election was legally held and the proposition W. 7, opinion not yet officially reported), it to increase the indebtedness was legally car- appeared that an election for the identical ried.

purpose of the one under review was held on [4] III. The election was held at a time February 28, 1916. In that case a peremptory contemplated by law. Section 9545 (R. S. writ of mandamus was awarded to compel 1909), among other things, provides that a the registration of bonds. So also in the folcity, town, or village desiring to submit to its lowing 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, not prepared to say that the complaints of 217 Mo. 103, 116 S. W. 1099; State ex rel. the respondent in these respects involve subDexter v. Gordon, 251 Mo. 303, 158 S. W. 683; stantial violations of the Australian ballot Bauch v. City of Cabool, 165 Mo. App. 486, law, and accordingly overrule the assignment 148 S. W. 1003.

that such law was contravened in the elecIn the case of State ex rel. Dexter v. Gor- tion in the instant case. don, 251 Mo. 303; 158 S. W. 683, supra, nei- [5] V. It is finally urged by the learned ther in the majority nor in the dissenting opin-counsel for respondent that the election in ion was any importance attached to the fact this case was void because 26 illegal votes that the election then under review was held were cast thereat by persons not entitled, on in August and not on the first Tuesday in account of nonresidence and other legal disApril. The effect of these rulings, particu- qualifications, to participate in the election. larly the one in State ex rel. Dexter v. Gor- A careful examination of the testimony disdon, supra, where a mandamus to compel the closes that the result of the election would registration of bonds was denied, is equiva- not be affected if these votes were subtracted lent to a holding that the statutes supra were from those given in favor of the incurring of not susceptible of a construction requiring a the indebtedness, since that would leave more special election for the issuance of bonds to than a two-thirds vote cast in favor of the be held on the date of the general election, proposition. The total of the votes cast was for if that had been the proper interpretation 1,251 ; 857 being for bonds and 394 against. of the statutes the ruling in the case of State It is evident that if 26 be deducted from ex rel. Dexter v. Gordon, supra, would have those favoring the bonds, a two-thirds majorbeen placed on the ground that the issuance (ity would remain. But the question is not of the bonds was void because voted for at an before us in this case. Respondent sought to election held on a date other than that re- amend its return by specifying these grounds

This court dequired by law. No such conclusion was reach-for annulling the election. ed in that case, and if it had been permissi- nied that motion for the reason that no such ble there would have been no occasion for the issues can be raised in a mandamus prodissenting opinion filed in that case. We

ceeding to compel the registration of bonds. therefore .overrule the contention that the Such a proceeding is not an election contest election for the issuance of the bonds involv- in any sense. The duties of the state auditor ed in this proceeding was held on an im- in the matter of the registration of bonds of

municipalities are regulated and prescribed proper date.

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 man

ner state bonds are registered and for a certhe manner of holding the election under review is prescribed by what is known as the tificate "indorsed by the auditor on the bonds Australian ballot law. Article 5, c. 43, R. S. that all conditions of the laws have been 1909.

A careful consideration of the rele- complied with in its issue, if that be the vant testimony in this case satisfies us that contract under which they were ordered to

case, and also that the conditions of the in its essential features this Election Code of be issued have also been complied with, and the state was substantially complied with, the evidence of that fact shall be filed and and that the result of the election showed a preserved by the auditor; but such certifitwo-thirds majority of those voting in favor cate shall be prima facie evidence only of of the proposition to incur the indebtedness the facts therein stated and shall not preevidenced by the bonds sought to be register- clude or prohibit any person from showing or ed. Many of the points urged in favor of proving to the contrary in any suit or prothe contrary view by the learned counsel for ceeding to test or determine the validity of respondent, while specifically different, were such bonds, or the power

to issue not generically unlike the objections urged to such bonds; and the remedy of injunction the registration of the bonds in the unre- shall also lie at the instance of any taxpayer, ported manuscript decision of State ex rel. etc., to prevent the registration of any bonds city of Memphis v. Hackman, supra. The ef- alleged to be illegally issued and funded under fect of the doctrine announced in that case any of the provisions of this article.” It is is that, absent fraud or a mandatory statute, obvious at a glance that the above statute an election like the one under review will not makes no provision for the contest of an elecbe set aside for mere irregularities in the tion or for the trial of issues determinable method of voting, such as relate to furnishing only in a suit to contest an election. It is setbooths, the duties of the judges of election, tled law that election contests did not exist at and the certification of the result of the elec- common law, but are purely creations of tion. See, also, Bine v. Jackson Co., 266 Mo. statute. Whether or not the 26 voters in loc. cit. 240, 181 S. W. 36; Bowers v. Smith, question were disqualified by conviction of 111 Mo. 45, 20 S. W. 101, 16 L. R. A. 754, 33 crime or nonresidency would present quesAm. St. Rep. 491; and Skelton v. Ulen, 217 tions triable in election contest when auMo. 383, 117 S. W, 32. Under the authority | thorized by statute, but they could not be


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