Mo.)

PER CURIAM. The above opinion of RAILEY, C., is adopted as the opinion of the court. All concur, BOND, P. J., in the

result.

STATE ex rel. CITY OF MEMPHIS v.
HACKMAN, State Auditor.

(No. 20433.)

1. MUNICIPAL CORPORATIONS 57, 58-PowERS CONSTRUCTION.

7

by publication in a newspaper, to such extent the board may delegate to the clerk the duty enjoined to select a newspaper and publish notice, under the general rule that powers conferred, but not specifically directed by the statute, are left, as to the manner of their performance, to the discretion of the governing body of the municipality.

--

6. MUNICIPAL CORPORATIONS 918 (4)—SPE-
POLLING
BOND ISSUE
CIAL ELECTION
PLACES-ORDINANCE.

That the board of aldermen of a city, in or(Supreme Court of Missouri. In Banc. March dering a special election on the proposition 5, 1918. Rehearing Denied whether bonds should be issued to erect a muMarch 12, 1918.) nicipal lighting plant, fixed the polling places as "the usual voting places in each ward of the city," which was small, and of less than 2,000 population, was a mere irregularity and immaterial, in the presence of a showing of fairness in the election, and the consequent absence of any pretense of fraud. 7. MUNICIPAL CORPORATIONS 918(4)-SPECIAL ELECTION-BOND ISSUE-RETURNS.

Municipal corporations may exercise the powers expressly granted them, those necessarily or fairly implied in or incident to the powers expressly granted, and those essential to the accomplishment of the declared objects and purposes of the corporation; doubts concerning the exercise of such powers are to be resolved against the corporation; and the corporate powers are to be strictly construed where the power sought to be exercised is out of usual range or imposes a public burden affecting the common-law rights of citizens, a rule not applying to the course pursued or the mode adopted to carry into effect powers expressly or plainly granted, which are left, when not subjected to legislative restriction, to the reasonable discretion of the municipal authorities. 2. MUNICIPAL

918(2)

CORPORATIONS BONDS-ELECTION-ORDINANCE-STATUTE. Under Rev. St. 1909, § 9545, providing that to test the sense of the voters of any incorporated city, etc., on a proposition to become indebted, etc., the council, etc., shall order a special election, of which they shall give not less than 15 days' previous notice, etc., an ordinance of the board of aldermen calling a special election to test the sense of voters on the proposition of issuing bonds to erect a municipal lighting plant, which was in substantial compliance with the law, fully met the requirements of the statute, though an ordinance was not necessary, an order of the board being sufficient. 3. MUNICIPAL

918(3)

CORPORATIONS BONDS-ELECTION-ORDINANCE-STATUTE. Under Rev. St. 1909, § 9545, requiring that the board of aldermen shall give not less than 15 days' previous notice, by publication in some newspaper published in the city, of such proposed election, the ordinance of the board ordering election on the proposition of issuing bonds to erect a municipal lighting plant was not defective in not designating the newspaper in which the notice was to be published. 4. MUNICIPAL CORPORATIONS BONDS

918(3)

- ELECTION PUBLICATION OF NOTICE STATUTE. Where the board of aldermen of a city adopted an ordinance calling a special election on the proposition whether bonds should be issued to erect a municipal lighting plant, and notice was published in a weekly paper of the city for three successive weeks, beginning the 10th and ending the 24th of February, the special election being held February 26th, the publication was sufficient as to time under Rev. St. 1909, § 9545, requiring that the board give not less than 15 days' previous notice by publication in a newspaper. 5. MUNICIPAL CORPORATIONS

867(3)—SPEDELEGATION OF DUTY

CIAL ELECTION STATUTE. Rev. St. 1909, § 9545, authorizing the board of aldermen of a city to order special election on the proposition of becoming indebted, etc., being directory as to the preliminary steps leading up to the giving of the notice of election

In the absence of any injury resulting from failure to open at the time designated in the statute, 6 a. m., the polls for a city's special election on the proposition of issuing bonds to erect a municipal lighting plant, the polls actually having been opened at 7 a. m., the requirement of the statute was directory, not mandatory, and the election valid. 9. APPEAL AND ERROR 176 - CONCESSION OF FACTS BELOW-EFFECT. A litigant cannot formally and in writing concede facts below, and then seek to controvert them in the Supreme Court, particularly where there is no showing the agreement was improperly made or that its approval will obstruct substantial justice.

Under Rev. St. 1909, § 9546, providing that the ballot to be used at a city election submitting the proposition of an increase in indebtedness shall be in the form: "For increase of debt. Yes. For increase of debt. No.," where notice of an election on the proposition of issuing bonds to erect a municipal lighting plant, and the ballots, read: "For incurring indebtedness. Yes. For incurring indebtedness. No. The former of which shall be taken as a vote assenting to increasing said debt and the latter as dissenting therefrom," the election was valid, the form of ballot used being in substantial compliance with the law, since, where a statute provides specifically that a ballot not in a prescribed form shall not be counted, it is mandatory, but where it provides that certain ballots shall be used, and does not prescribe what results shall follow if they are not used, it is directory, and the test as to legality of the ballot is whether or not voters were afforded opportunity to and fairly did express their will. 11. MUNICIPAL CORPORATIONS 918(4) —

SPECIAL ELECTION-BOND ISSUE-DUTY OF
CLERK-STATUTE.

A city's special election on the proposition to issue bonds for the erection of a municipa' lighting plant was not invalidated because the janitor of the courthouse was permitted to deliver the pollbooks, ballot boxes, and tally sheets to the election officials, in place of their being delivered by the city clerk, under Laws 1915, p. 360, which, by reference to sections of the

general law, designates him as the proper per- | (J. M. Jayne, of Memphis, of counsel), for reson, the statute in regard to the duty of the spondent. clerk being in no sense mandatory.

12. MUNICIPAL CORPORATIONS ~918(4) SPECIAL ELECTION BOND ISSUE-SWEARING IN OF JUDGES.

Failure to administer the oath to judges of a city's special election on the proposition of issuance of bonds did not render their acts as such invalid, particularly in the absence of an imperative statute requiring that to be done, and declaring the acts of the officials invalid if

not sworn to.

WALKER, J. Mandamus is sought to compel respondent to register $25,000 of the bonds of relator. The alternative writ was waived, and return made to the petition as and for the writ.

On February 7, 1916, relator, a city of the fourth class, adopted an ordinance providing for the calling of a special election for Feb

13. MUNICIPAL CORPORATIONS 918(4) SPECIAL ELECTION - BOND ISSUE-POLL-ruary 28, 1916, to enable the qualified voters

BOOKS SIGNATURE BY JUDGES-STATUTE.

The fact that some of the pollbooks of a city's special election on the proposition to issue bonds were not signed by the judges of the election and attested as required by Rev. St. 1909, § 5907, will not invalidate the election, in the absence of fraud, unless the statute is mandatory.

14. MUNICIPAL

CORPORATIONS 918(4) SPECIAL ELECTION-ISSUANCE OF BONDSPOLLING PLACE.

A city's special election on the proposition to issue bonds to erect a municipal lighting plant was not invalidated because in one ward it was held in the janitor's instead of the surveyor's office in the courthouse, both rooms being on the same floor, fronting on the same hallway, in effect in the same location, and there being nothing to indicate any voter had difficulty in finding the voting place, or that any one was prevented from voting.

15. BONDS 11-DATE-DELIVERY.

of said city to vote on a proposition which if carried would authorize the issuance of $25,000 of bonds to defray the expenses of erecting a municipal electric lighting plant. The ordinance in question is as follows:

"Be it ordained by the board of aldermen of the city of Memphis, Missouri, as follows: "Section 1. That a proposition to incur an indebtedness and issue bonds therefor by said city of Memphis, Missouri, to the amount of twenty-five thousand dollars ($25,000.00), for the purpose of erecting an electric lighting plant for said city to be owned and operated by said city, be submitted to the qualified voters of said city; that an election be held at the usual voting places in each ward of said city on the 28th day of February, 1916, to vote on said proposition; that notice of such election be given as required by section 9545 of the Revised Statutes of 1909; and that tickets or ballots be prepared and printed to be used at such

The true date of a bond is the date of its election which shall be in the following form: delivery.

Though municipal bond be erroneously dated, or bear no date, its validity will not be affected if all the essentials necessary to give it

legal and binding force have been complied with.

17. MUNICIPAL

CORPORATIONS

936

"For incurring indebtedness. Yes. For incurring indebtedness. No.

"The former of which shall be taken as a vote assenting to the creation of such debt and the latter as dissenting therefrom.

"Sec. 2. That said ordinance shall be in full

force and effect from and after its passage and

approval."

The notice of the election conforms to the requirements of the ordinance. After pub

BONDS-DELAY-STATUTORY DUTY TO REG-lication of the same, as required by the stat

ISTER.

The mere nonaction of a municipality, in respect to issuing bonds for the erection of a municipal lighting plant after its voters had authorized the issue, in the absence of any countervailing cause, will not relieve the state auditor of his statutory duty to register the bonds.

18. MANDAMUS 5 PENDENCY OF OTHER SUIT-ISSUANCE OF BONDS BY CITY.

Pendency, against a municipality whose citizens had voted to issue bonds for the erection of a municipal lighting plant, of a private lighting company's suit to enjoin issuance of the bonds, and thus to forestall competition, was no defense to the state auditor, against whom the municipality sought mandamus to compel performance of his statutory duty to register the bonds.

Bond and Faris, JJ., dissenting.

Mandamus by the state of Missouri, on relation of the city of Memphis, against George E. Hackman, State Auditor. Peremptory writ ordered to issue.

See, also, 196 S. W. 1113.
Hudson V. Smoot, of Memphis, and Charles
& Rutherford, of St. Louis, for relator.
Frank W. McAllister, Atty. Gen., and John
T. Gose and S. P. Howell, Asst. Attys. Gen.

ute (section 9545, R. S. 1909), and the ordinances of February 7, 1916, and March 25, 1912, the election was held, and upon a canvass of the votes it appeared that 468 votes had been cast at said election, of which 315 were in favor of the incurring of the indebtedness and the consequent issuance of the bonds, and 153 were against same. Upon ascertaining the result of said election, the board of aldermen on February 29, 1916, adopted an ordinance declaring the result of said election in the words following:

"Be it ordained by the board of aldermen of the city of Memphis, Missouri, as follows:

"Section 1. That it is hereby declared that the called election for the purpose authorized has been held in accordance with the provisions of section 9545, Revised Statutes 1909, and that more than two-thirds of the legal voters voting at ring the indebtedness and issuing bonds to the said election voted for the proposition of incuramount of $25,000.00 for the purpose of building and erecting an electric light plant in said city, to be owned and operated by said city, to wit: That at said election 468 votes were cast; 315 of said votes were cast in favor of incurring said indebtedness, and 153 votes were the number of votes for the incurring of such cast against the incurring of said indebtedness; indebtedness also being more than two-thirds

For other cases see same topic and KEY-NUMBER in all Kcy-Numbered Digests and Indexes

Mo.)

of the qualified voters of said city voting at such election.

etc.

"Passed and approved February 29, 1916,"

bill in equity, and respondent now refuses to register such bonds for said reasons, and because said last-named suit is now pending in the circuit court of Scotland county.

Relator states, in addition, that on September After formally pleading the facts as above 10, 1917, there was adopted by the relator an set forth, with allegations as to the official ordinance again declaring the result of said character of the respondent and his duty un- election, and further providing for the issuance der the law in such cases, relator in its peti- of its bonds to the amount of $25,000 for the purpose aforesaid, which bonds were to be dated tion filed herein avers that, the premises conas of September 1, 1917, to bear interest at the sidered, it was and is authorized and empow-rate of 6 per centum per annum, payable semiered to issue said bonds for the purpose annually on the 1st days of March and Septemaforesaid and to have them registered by re- ber of each year, and that to that end interest coupons shall be attached to said bonds, and be spondent. It further alleges as reasons why of the denomination of $1,000 each, numbered from 1 to 25, both inclusive, payable to bearer, the writ should issue herein: and to mature as set forth in relator's petition. This ordinance repealed all prior ordinances or parts of ordinances in conflict therewith. That in obedience to and in pursuance of said ordinance of September 10, 1917, the bonds of said city were prepared and executed and presented to respondent for registration, together with the sum of $25 in payment of the fees due therefor, but that respondent refused, and still refuses, to register said bonds for the reasons stated in said Memphis Electric Light, Heat & Power Company's second bill in equity. That, because of the pending litigation aforesaid, relator has been unable to sell its bonds subject to registration by respondent, and will not be able to sell same until this court has adjudicated the validity of the ordinances herein set out, the regularity of the election, and the legality of said bonds. That the total assessed valuation after equalization of all of the taxable property in said relator city, based upon ownership as of June 1, 1913, for taxes payable in 1914, was the sum of $876,469.54. That the total outstanding indebtedness of relator (the city of Memphis) of every kind, character, and description, exclusive of this proposed bond issue of $25,000, was, on the 28th day of February, 1916, the sum of $10,000. That relator is without remedy in the premises, save and except by the writ of mandamus. Wherefore this relator prays the court to issue and direct to respondent its alternative writ of mandamus, requiring and commanding him to accept the sum of $25 as and for his fee for registering said bonds, which relator now here tenders in court, and to require and command him to register the aforesaid bonds.

That afterwards, in the 24th day of March, 1916, there was adopted by the board of aldermen of said city an ordinance which in terms provided for the issuance of $25,000 electric light bonds of the city, and the levy and collection of an annual tax to pay the principal and interest thereon, and which said ordinance recited all of the prior proceedings had by said board relative to the issuance of said bonds, the rate of interest on same, and their maturities, denominations, and date, and prescribing the form of bond and the coupons to be attached thereto, and authorizing the execution of the bonds by the signatures of the mayor and the city clerk indorsed thereon, and the execution of the coupons by the facsimile signature of the clerk of said board. That after the adoption and approval of the ordinance of March 24, 1916, relator contracted with a broker for the sale of said bonds at par, plus a premium of $290, and accrued interest from date of bonds to That on date of delivery to said purchaser. April 7, 1916, the Memphis Electric Light, Heat & Power Company, a corporation, filed its bill in equity in the circuit court of said county against this relator and its board of aldermen and mayor, seeking to restrain the issuance of said bonds, that it then having a plant in said city, had a contract with relator to furnish it and its inhabitants with electric light at a reasonable price, and was ready and willing so to do; and, further, that relator had obligated itself to purchase its plant; and praying that relator be enjoined from constructing a plant in said city until relators comply with their said contract. That upon application of said Memphis Electric Light, Heat & Power Company, plaintiff in said suit, the venue was changed to the circuit court of Marion county, where, after some delay occasioned by the plaintiff, a trial was had resulting in the dismissal of its bill, and from this judgment plaintiff appealed to the Supreme Court, where said judgment was on July 14, 1917, affirmed. 196 S. W. 1113. That, by reason of the aforesaid suit, relator was prevented from consummating its contract for the sale of said bonds. That afterwards, on July 27, 1917, said Memphis Electric Light, Heat & Power Company filed a second bill in equity in the circuit court of Scotland county, Mo.. seeking to restrain the issuance of said bonds, alleging the adoption of the ordinances herein before pleaded, and that the notice of the election was not the same as the notice ordered to be given, and that the ballots furnished and cast were not in the form required by section 9546, R. S. Mo. 1909, and making in addition thereto numerous other averments as to the

irregularity of said election, its consequent illegality, and the lack of authority of relator to issue the bonds here in controversy. (These allegations are not set out at length, because they are in substance, if not in form, all incorporated in respondent's return herein.) Relator further avers that said Memphis Electric Light, Heat & Power Company has protested to respondent, the State Auditor, against registering any bonds of the relator authorized by said election for the foregoing reasons, as alleged in its second

Respondent for his return, after formal waiver of the issuance of an alternative writ, admits his own official character; the corporate nature of the relator; the division of the latter into wards; the issuance of the bonds here in question; that the Memphis Electric Light, Heat & Power Company heretofore filed a bill in equity in regard to the issuance of said bonds which was determined adversely to its contention, and that it has since commenced a like proceeding in the circuit court of Scotland county, which is now pending; that respondent has been tendered the proper fee for registering said For furbonds, but has refused so to do. ther return respondent says that this writ should be denied for the reasons following:

(1) Because the polls of said election were not open at 6 o'clock in the morning and kept open till 7 o'clock in the evening.

(2) Because the election in the First ward of said city was not held at the usual voting place in said ward, but in the janitor's room of the courthouse, when preceding elections had been held in the surveyor's office in said courthouse.

(3) Because the voting places for the election and the judges thereof were not selected and

specified by the board of aldermen by ordi-state the indebtedness of said city on Septemnance or otherwise, nor was the manner of mak- ber 10, 1917. ing returns of said election specified.

(18) Because a bond issued more than 18 months after election cannot express or carry out the wishes and will of the voters. (19) Because the copy of the bond in relator's petition is dated September 1, 1917, and the Denial 3. Relator further denies that the noordinance authorizing the issuance of same was tice of said election did not follow the notice not passed by the board of aldermen until Sep-required by ordinance or that it did not contain

(22) Because the respondent is informed and Denial 6. That the judges and clerks were inbelieves that there is now pending in the circuit competent and unauthorized to count and recourt of Scotland county, Missouri, a suit com-ceive the votes cast. Relator avers the contrary menced by the Memphis Electric Light, Heat & to be the fact. Power Company v. The City of Memphis, Mo., to test the validity of said election and the issue of said bonds.