like contention to that made by respondent | sonable discretion was necessary to render in the instant case, in which we said, in ef- its action effectual was authorized. fect, that the spirit of the modern rulings was not to construe laws governing special elections, as in the case at bar, with the utmost strictness, but if it appears that everything has been done to afford the voters a free and fair opportunity to vote "Yes" or "No" on the proposition submitted, in the absence of the violation of a mandatory statute or the doing or omission to do something which deprives the voters of a free and fair opportunity to express their will, such an election will be upheld. [2] The special election here in question was held under the authority of the following statute: "For the purpose of testing the sense of the voters of any incorporated city, town or village upon a proposition to become indebted or to increase the debt thereof, as contemplated in the next preceding section, the council, trustees or other proper authority of such municipality shall order a special election to be held, of which they shall give not less than fifteen days' previous notice, by publication in some newspaper published therein, or if there be no such newspaper, then by posting up ten written or printed handbills in ten public places in such city, town or village. Such election shall be held and judges thereof appointed as in case of other elections in such municipalities." Section 9545, R. S. 1909. The power thus conferred was invoked in the passage of the ordinance of February 7, 1916, by the board of aldermen, as set out in the statement of facts. So far as any objection is made to the formal sufficiency of this ordinance, the same was expressly waived, if it existed, by the agreed statement in regard thereto filed with the commissioner. Waiving this express agreement, however, for the time being, the ordinance is in substantial compliance with the law, and therefore fully meets the requirements of the statute. While the statutes do not expressly require the passage of an ordinance as a preliminary step to the calling of an election, sections 95449548, R. S. 1909, have been as fully complied with as if such requirements existed. In State ex rel. Canton v. Allen, 178 Mo. 555, 573, 77 S. W. 868, it was contended by respondent that there was no ordinance ordering the election. In ruling on this contention, we held that, for the purpose of testing the sense of the qualified voters of a town on the subject of issuing bonds, an ordinance was not necessary, an order of the board being sufficient; that the language of the statute (now section 9545), which simply declares that the board "shall order an election," means an order or a resolution. Thus much, therefore, for the contention that, whether the power of the municipality be strictly or liberally construed, there exists express statutory authority for the calling of the election, and that the municipal legislation necessary to render such statute applicable has been invoked and applied. In addition, it will be seen that section 9545 is general in its terms, and hence [3, 4] II. It is contended that the order for the election was defective in not designating the newspaper in which the notice of same was to be published. The requirement of the statute (section 9545), so far as applicable to the facts here, is that the board "shall give not less than fifteen days' previous notice, by publication in some newspaper published therein, * * "" * of such proposed election. The general ordinance passed March 25, 1912, by the board of aldermen, under the provisions of which the notice was given, provides, so far as applicable here, "that public notice of the time and place of holding such elections, and the purpose for which they are to be held, are to be given by publication in some newspaper published in said city for two weeks. The notice was as follows: "Notice is hereby given to the legal voters of Memphis, Mo., that in pursuance of an ordinance passed and adopted by the board of aldermen of said city on the 7th day of February, 1916, an election will be held on the 28th day of February, 1916, at the usual voting places in each ward in said city, to vote upon a proposition to incur an indebtedness of $25,000 and issue bonds therefor, for the purpose of building and erecting an electric lighting plant in said city, to be owned and operated by the city. "The ballots for such election will be as follows: For incurring indebtedness. Yes. For incurring indebtedness. No. "The former of which shall be taken as a vote assenting to the incurring of such debt, and the latter as dissenting therefrom." This notice was published in the Memphis Reveille, a weekly newspaper published in said city, for three successive weeks, beginning on the 10th and ending on the 24th day of February, 1916. The special election was held on February 26, 1916. The publication was therefore sufficient as to time. Coleman v. Blair, 245 Mo. 680, 151 S. W. 148; State ex rel. v. Wilder, 200 Mo. 103, 98 S. W. 465. In the absence of a statute requiring the order for the notice to designate the paper in which it is to be published, such designation is unnecessary. A contrary ruling would add nothing to the notice, which is to inform voters of the time when, the place where, and the purpose of the election. This is as fully accomplished by the publication of same as if the name of the paper had been designated by the board in its order. Other statutes requiring notices similar in their terms to section 9545 have been held valid, in which the orders for same did not designate the papers in which they were to be published. Humphreys v. Humphreys, 178 S. W. 52: Ex parte Leach v. McDonald, 231 Mo. 586, 132 S. W. 1075, affirming Ex parte Leach, 149 Mo. App. 321, 130 S. W. 394; Bauch v. Cabool, 165 Mo. App. loc. cit. 494, 148 S. W. 1003. However, it is contended that the failure of the board to designate in its order the paper in which the notice of the election was to be published constituted an unauthorized delegation of power to the clerk, who, it appears, this was a duty which could only be performed by the board itself If the statute had required the board to designate the paper in which the notice was to be published, an affirmative duty so to do would have devolved on the board; but it did not, and hence a compliance with the spirit and purpose of the law in such a manner as to afford the public an opportunity to know when and where the election was to be held and the purpose of same was all that was necessary. This conclusion was reached by this court in Ex parte Leach v. McDonald, supra, overruling State v. Gatlin, 143 Mo. App. 605, 128 S. W. 806, and State v. Baldwin, 109 Mo. App. 573, 83 S. W. 266, which held to the contrary. [5] The error in principle underlying the contention as to the invalidity of the order, in its failing to designate the paper in which the notice was to be published, lies in the fact that such designation by the board is assumed to have been imperative, and hence nondelegable. The statute, being general, is directory as to the preliminary steps leading up to the giving of the notice, and to this extent the duty enjoined may be delegated 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; in other words, that such powers are ministerial, and not legisla tive. Our Reports are replete with cases defining the distinction between these classes of powers. Burdening this opinion with their citation would accomplish no useful purpose. It is sufficient to say that the cases cited in the foregoing paragraph, while not stating the underlying reason for their conclusions, which was not necessary definitely sustain the application of the general rule above announced as to the right of the board to omit from its order the name of the paper in which the notice of election was to be published. record that relator is a small city of less than 2,000 population. To presume, therefore, that the voters encountered any difficulty in ascertaining their respective places of voting, or that they were in any wise hindered in the exercise of this right, is not sustained by reason or in accord with human experience. In State ex rel. Mercer v. Gordon, 242 Mo. loc. cit. 623, 147 S. W. 797, Brown, J., in discussing a like contention to that under review, said in his usual terse manner: "There is no law under which either counties or cities may erect or maintain permanent polling places. Neither are such municipalities provided with funds to purchase property in which to conduct public elections; therefore the election machinery must be exercised at such places as their officers are able to rent or otherwise acquire the use of. * * * "It is rare indeed that any one desiring to cast a vote in a special election has any difficulty in finding the place where the election is to be held. measure submitted or those desiring its defeat Either those urging the adoption of the will take such an interest in the result of the election that every one who may desire to vote thereat will have no difficulty in finding the place where he should cast his ballot. "The record is barren of even an intimation that any voter in said county failed to understand where he should vote or was deprived of son of any alleged defect or ambiguity in the his right to vote in the special election by reanotice of election as published." * * In State ex rel. v. Allen, 178 Mo. loc. cit. 576, 77 S. W. 868, Burgess, J., speaking for the court said: "There is no pretense that the election was fraudulent, or that the result was not a fair expression [of the will] of the people. It [the failure to designate the places of voting] was not, under the circumstances, be held to invalinothing more than an irregularity, and should date the election or discredit the bonds." (Citing authorities.) The Courts of Appeals for like reasons hold that the contention here made, under facts parallel with those in the instant case, is without merit. Bauch v. City, Cabool, 165 Mo. App. loc. cit. 494, 148 S. W. 1003; State ex rel. v. Ross, 160 Mo. App. loc. cit. 693, 143 S. W. 502; O'Laughlin v. Kirkwood, 107 Mo. App. 302, 81 S. W. 512. [7] IV. It was disclosed at the hearing before the commissioner that a formal certification of the result of the election was not made by the election officials of one of the wards, except by delivery of the pollbooks and tally sheets to the city clerk after the votes had all been cast and the polls closed. The correctness of the tally sheets in this ward was certified to by the election judges. From this return the mayor and board of aldermen canvassed the votes cast and declared the result. There is no contention that there was a semblance of fraud in the [6] III. Error is alleged in the failure of the board of aldermen to fix the polling places other than as "the usual voting places in each ward in said city." Neither in the respondent's return nor in the testimony, nor in the findings of the commissioner, is there anything to indicate that this election was -except in one instance, to be adverted to later-not held at the usual voting places in said city. The contention peeps over the parapet, therefore, for the first time in respondent's brief, "coming like the herald Mercury, new lighted," etc. This aside, however, we have had occasion, as has our courts of appeals, to carefully consider this objection, holding that we will presume, in the pres-election nor is the correctness of the result ence of a showing of fairness in the election, and the consequent absence of any pretense of fraud, that the board performed its statutory duty in the matter here complained of and that the election was held at the usual voting as declared questioned. The contention is in effect, therefore, that while the finding and declaration of the result of the vote in this particular ward was correct, it was returned to the canvassers in a manner other than invalidate the election. While appellate adopted by the board of aldermen in regard courts should give a patient hearing to any to the election to authorize the issue of the claim of error from which any hurt could bonds were not passed and approved as rehave been inflicted on the complainant, quired by law. In the stipulation as to the where, as in this case, the record shows that facts made by the parties, filed with the comthe election was honestly conducted, sup- missioner and made a part of the record, it plemented by a finding and declaration of the was agreed that the resolution and ordiresult of same in actual accordance with the nances adopted and the notice given by the votes cast, we are authorized in concluding city of Memphis in relation to the election that a fair expression of the will of the for and the issuance of the bonds had been voters has been obtained, and the contention duly passed. In the face of this agreement, to the contrary becomes querulous, and the the respondent is precluded from now interreasons urged to sustain it technical. Bow-posing objections to the matters conceded in ers v. Smith, 111 Mo. 45, 61, 20 S. W. 101, 16 L. R. A. 754, 33 Am. St. Rep. 491. In Bauch v. Cabool, 165 Mo. App. loc. cit. 499, 148 S. W. 1003, and in O'Laughlin v. Kirkwood, 107 Mo. App. loc. cit. 319, 81 S. W. 512, the contention here made has re ceived careful consideration. After a re view of many cases from other jurisdictions, the Courts of Appeals hold, in effect, that the result of the cases cited "is that when, for any reason, election officers have failed to certify the returns from a precinct, and no question is made about the honesty of the election, and the vote reaches the hands of the canvassing officers, the failure of the precinct officers to certify the pollbooks or the returns does not justify rejecting the vote of the precinct, since to do so would tend to defeat the will of the people and deprive them of their suffrage right on account of the nonfeas ance of election officers." This conclusion appeals to reason and meets with our approval. Waiving, therefore, mere irregularities in the manner in which the returns were made, which, in the absence of fraud, will not vitiate the election (Skelton v. Ulen, 217 Mo. loc. cit. 393, 117 S. W. 32), we conclude that this contention is without merit. [8] V. It is urged that the opening of the polls at 7 instead of 6 o'clock a. m., as re quired by the statute, constituted such an error as to invalidate the election. The force of this contention depends upon whether the statute is mandatory or directory. Ordinarily it is held to be directory, especially where the omission is unsubstantial and there was no evidence of resultant injury. For example, it has been held that a delay of an hour or an hour and a half in opening the polls will not affect the validity of an election, especially where there is no evidence that any one was deprived of the right of voting. People v. Prewett, 124 Cal. 7, 56 Pac. 619; Packwood v. Brownell, 121 Cal. 478, 53 Pac. 1079; Pickett v. Russell, 42 Fla. 116, 634, 28 South. 764; Graham v. Graham (Ky.) 68 S. W. 1093; Marks v. Park, 7 Leg. Gaz. 70; Cleland v. Porter, 74 Ill. 76, 24 Am. Rep. 273. In the absence, therefore, of any injury resulting from a failure to open the polls at the time designated in the statute, we hold the same, as applied to the facts in this case, to be directory, and overrule respondent's contention. | said agreed statement to have been correct. There is a homely adage, which time has made a part of our vernacular, that "you cannot eat your cake and keep it." Paraphrased, for what is true in life is true in law, you cannot concede facts below and seek to controvert them here. It would ill accord with a proper administration of jus tice to permit a party who had entered into a formal written agreement with his adversary below as to certain facts, and same had been filed and made a part of the record, to disregard same here in an attempt to controvert the matters agreed upon. We will not countenance such a course, especially in view of the fact that there is no showing that the agreement was improperly entered into, or that its approval will obstruct substantial justice. Sidener v. Essex, 22 Ind. 201; Staples v. Parker, 41 Barb. (N. Y.) 648; Curl v. Watson, 25 Iowa, 35, 95 Am. Dec. 763; Conner v. Belden, 8 Daly (N. Y.) 257; Boardman v. Kibbee, 10 Cush. (Mass.) 545. [10] VII. It is contended that the form of the ballot used at the election did not conform to the law. Section 9546, R. S. 1909, provides that the ballot to be used at elections of this character shall be in the following form: "For increase of debt. Yes. For increase of debt. No." The notice of this election and the ballots used at same were: "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 question confronting us here is as to the nature of the statute. If directory, then the form of ballot used was in substantial compliance with the law, otherwise not. The general rule on this subject is that where a statute provides specifically that a ballot not in a prescribed form shall not be counted, the statute is mandatory and must be enforced; but where it merely provides that certain ballots shall be used, and does not prescribe what results shall follow if they are not used, the statute is directory, and the test as to the legality of the ballot is whether or not the voters were afforded an opportunity to express, and that they did fairly express, their will. Sanders v. Lacks, 142 Mo. loc. cit. 263, 43 S. W. 653; Horsefall v. School Dist., 143 Mo. App. 541, 128 valid if not sworn to. The reasoning in support of this conclusion is that, although not sworn to, the judges were de facto officers and acted as such, as in the case of judicial officers acting under like circumstances, and that their acts will therefore not be held invalid. Whipley v. McKune, 12 Cal. loc. cit. 357; State v. County Com., 22 Fla. loc. cit. 34; Ackerman v. Haenck, 147 Ill. loc. cit. 519, 35 N. E. 381; Taylor v. Taylor, 10 Minn. loc. cit. 111 (Gil. 81). [13] It is also contended that some of the pollbooks were not signed by the judges and attested as required by section 5907, R. S. 1909. The character of the irregularities here complained of is such that, unless their per scribes a certain form of ballot, but does not declare what results will follow if it is not used. The statute, therefore, may be reasonably held to be directory. In State ex rel. v. Stouffer, 197 S. W. loc. cit. 251, the ballots used did not conform to the requirements of the statute, but, as in the case at bar, simply provided that a certain form of ballot should be used, without prescribing that none other should be counted. That statute was held to be directory. Woodson, J., speaking for the court, said in effect: The objection to the ballots was purely technical. No pretense is made that any voter was actually misled or deceived by the use of the words "For consolidation" or "Against consolidation" on the ballots instead of the words "For organiza-formance is prescribed by a mandatory stattion" and "Against organization." apparent from the entire record. The voters understood what they were voting for, and the purpose of the law was fully complied with. In the case at bar the voters were passing upon the question as to whether or not the indebtedness should be incurred, and with the explanation on the ballot no one could have been misled or deceived by the words employed instead of those directed by the statute. This is ute, they will, in the absence of fraud, not be election. We said thus much in Skelton v. [11] VIII. It is urged that prejudicial error was committed in permitting the janitor of the courthouse to deliver the pollbooks, ballot boxes, and tally sheets to the election officials instead of their delivery by the city clerk under the Laws of 1915, p. 360, which by reference to sections of the general law designates the city clerk as the proper person to perform this duty. It is not claimed that the proper pollbooks, ballot boxes, or tally sheets were not delivered to the properly constituted election officers, or that same were not used at the election. On the con-advertence, or mistakes of election officials trary, that they were so delivered and used is implied, if not expressly conceded, as the objections made to the legality of the election are free from any reference as to the improper use of either pollbooks, ballot boxes, or tally sheets. The statute in regard to the duty of the clerk in this particular is in no sense mandatory, but was simply intended to designate some one by whom the duty should be performed. Willeford v. State, 43 Ark. 62; Fowler v. State, 68 Tex. 30, 3 S. W. 255; Stockton v. Powell, 29 Fla. 1, 10 South. 688, 15 L. R. A. 42. In the absence, therefore, of any showing that the proper instrumentalities were not employed, we overrule this contention. [12] IX. The regularity of the election is also challenged on the ground that the judges were not sworn before entering upon the discharge of their duties. We held in Sanders v. Lacks, 142 Mo. loc. cit. 261, 43 S. W. 653, that failure to administer the oath to judges of an election did not render their acts as such invalid, especially in the absence of an imperative statute requiring this to be will not be permitted to disfranchise voters, and thus affect the result of an election or render it a nullity; this, of course, in the absence of fraud or a mandatory statute specific in its terms as to the manner in which an election is to be conducted. 9 R. C. L. § 101, and cases cited. [14] X. It is contended that the election in one ward was held in the janitor's instead of the surveyor's office in the courthouse. It is conceded that both rooms were on the same floor, frohting on the same hallway, and were in effect in the same location. As we have said in regard to other complaints of this character, of which there are many, the spirit of the modern rulings is to disregard irregularities that have worked no injury, when it is shown that everything has been done that could be done to afford the voters a fair election and no mandatory statute has been violated. State ex rel. v. Gordon, 242 Mo. 624, 147 S. W. 795; People v. Brown, 189 Ill. loc. cit. 624, 60 N. E. 46; Steele v. Calhoun, 61 Miss. loc. cit. 558; Pres. ton v. Culbertson, 58 Cal, 209. There is noth difficulty in finding the polling place or that | private lighting company to forestall competiany one was in any wise prevented from vot- tion. With this we have no concern other ing. We therefore regard this contention as than by contrast to exemplify the fact that unworthy of serious consideration and over- it does not constitute a reason, other objecrule the same. tions out of the way, why respondent should not discharge his official duty in the premises. Mere nonaction of the municipality in this regard, in the absence of any reasonable countervailing cause, will not suffice to relieve the auditor from the discharge of a duty enjoined by the statute. State ex rel. v. Gordon, 251 Mo. 311, 158 S. W. 683. [15, 16] XI. Respondent seeks to avoid registration of the bonds because the ordinance authorizing their issuance, and prescribing the terms of same, which was adopted on September 10, 1917, provided that the bonds should be dated as of September 1, 1917. The true date of a bond is the date of its delivery. School Dist. v. First Nat. Bank, 19 Neb. loc. cit. 91, 26 N. W. 912. In Flagg et al. v. City of Palmyra, 33 Mo. 440, we held that, although the face of the bonds was dated anterior to the ordinance under which they were issued, that this complaint was only plausible, and constituted no substantial objection to their validity, under the general rule that, although a bond be erroneously dated or bear no date, its validity will not be affected if all of the essentials necessary to give it legal and binding force have been complied with. These essentials in the instant case were complied with in conformity with the laws, general and local, as to the authority to issue the bonds, and the further fact was present that the officers executing them were such at the time the bonds were dated. Prettyman v. Supervisors, 19 Ill. 406, loc. cit. 414, 71 Am. Dec. 230; Morrill v. Smith County (Tex. Civ. App.) 33 S. W. 899, loc. cit. 906; Moller v. Galveston, 23 Tex. Civ. App. 693, 57 S. W. 1116, loc. cit. 1121; Yesler v. Seattle, 1 Wash. 308, loc. cit. 322, 323, 25 Pac. 1014; State v. Moore, 46 Neb. 590, loc. cit. 592, 593, 65 N. W. 193, 50 Am. St. Rep. 626; 9 C. J. § 16, p. 13, and notes. [17, 18] XII. Neither the relator nor any citizen of same has been instrumental in causing the delay that has occurred in the issuance and negotiation of the bonds authorized by the election therefor. The record fully discloses the moving cause of such delay to have been an effort on the part of a In view of all of which we are of the opin ion that the peremptory writ should issue, and it is so ordered. All concur, except BOND and FARIS, JJ., who dissent, BOND, J., in separate opinion. BOND, J. (dissenting). I am not prepared to dissent from the reasoning of the learned majority opinion, if the case were one proper which I cannot agree it is, from the fact, confor the issuance of our writ of mandamus, ceded in the pleadings and record, that a suit to enjoin the issuance of the bonds in question, on the identical grounds urged in the return to this application (other than the further objection to the pendency of such suit), was instituted in a court of competent jurisdiction prior to the application for a mandamus to compel the registration of such bonds. That suit is still pending, which fact, I think, justified the auditor in declining, in advance of its decision, to register the bonds. The present application is, in effect, only a short cut to a decision of the merits of the suit to enjoin the issuance of the bonds before the trial of that case. I do not think our writ of mandamus is available for that purpose, since the writ of mandamus is not a substitute for an appeal before or after the trial of the issues pending before a court having full jurisdiction of the person and subject-matter in dispute; hence the alternative writ heretofore ordered should be quashed. |