Stebbins v. Judge of Superior Court

Q-rant, J.

(after stating the facts). On account of the public necessity for a speedy determination of the question, we decided to hear it upon this proceeding. It is contended on behalf of the city that a majority of the votes cast upon the question of bonding controls; while on the part of the respondent it is contended that the majority of all the votes cast at the election must control.

The authorities are very numerous, and are not in harmony. An examination of them will show that the phraseology of the constitutional and statutory provisions in the various decisions differs, and the courts have had no little trouble to determine the clear legislative intent. The relators cite, as supporting their position, the following authorities: Gillespie v. Palmer, 20 Wis. 544 ; State v. Grace, 20 Or. 154 ; State v. Echols, 41 Kan. 1 ; Commissioners of Marion Co. v. Winkley, 29 Kan. 36 ; Walker v. Oswald, 68 Md. 146 ; Yesler v. Seattle, 1 Wash. St. 310; Sanford v. Prentice, 28 Wis. 361 ; Dayton v. City of St. Paul, 22 Minn. 400 ; Metcalfe v. Seattle, 1 Wash. St. 297.

Gillespie v. Palmer fully sustains the relators’ contention, and, if it were accepted as the law, it would control the present case. The soundness of that decision was questioned in Sawyer v. Insurance Co., 37 Wis. 524 , in which it was said that it had been subjected to the criticism that the court decided it in accordance with the “logic of the war,” rather than by-the “logic of the law.” In Bound v. Railroad Co., 45 Wis. 579 , Chief Justice Ryan characterized it as a reproach to the court, and a judgment proceeding upon policy rather than upon principle. It is expressly repudiated in State v. Babcock, 17 Neb. 194 , and State v. Lancaster Co., 6 Neb. 474 , and is criticised in other courts. While we have great respect for the supreme court of Wisconsin, we do not think that that decision is supported by reason or authority.

In State v. Grace the law provided that, “at the next *696 general election, the question of the location of a county seat shall be submitted to the legal voters of the county, and the place receiving the majority of all the votes cast shall be the permanent county seat.” The reasoning by which. the court reached the conclusion that the majority of the votes cast upon the removal, -and not of all the votes cast at the election, should control, is found at pages 161 and 162 of the report. The conclusion is based largely upon the peculiar phraseology of the statute.

In Commissioners of Marion Co. v. Winkley the statute contained no such limitation as is found in the case now before us. The statute in that case simply provided for submitting the question of a bounty to the electors at a general election. It was there provided that, “if a majority of the votes [cast] are for the bounty,” the law shall be declared in force.

In State v. Echols the law required the question to be submitted to the voters of the county at a general or special election, and provided that “after said election the ballots on said question shall be canvassed in the same manner as in the election for county officers, and if the majority of all the' votes cast shall be in favor of establishing such high school,” etc.; and the case is decided to be ruled by Commissioners of Marion Co. v. Winkley .

In Dayton v. City of St. Paul the question arose upon a provision of the constitution relating to alterations of or amendments to it. That provision required a “majority of the voters present and voting.” Under this general language, a majority of those voting upon an amendment was held sufficient. It was also held in the same case that a provision similar to the one now involved required a majority of all the electors who voted at the election. The constitution provided for submitting to the electors the question of constitutional conventions, and provided that, “if a majority of all the electors *697 voting at said election shall have voted for a convention, the legislature shall provide for calling it.” It was held that the use of language so different showed the intention to provide a different rule in each case.

In Walker v. Oswald considerable importance was attached to the provisions of the law for the canvass and return of the votes, as showing the intention to be that a majority of.the electors voting upon the proposition should determine.

In Metcalfe v. Seattle the provision under which the question arose required “the assent of three-fifths of the voters therein, voting at an election to be held for that purpose.”

In Yesler v. Seattle the provision read: “If three-fifths of the' voters of said city of Seattle shall at said election vote in favor of authorizing,” etc.

These two cases adopt the definition of “voter” given by the Supreme Court of the United States in Carroll Co. v. Smith, 111 U. S. 565 , as follows:

“The assent of two-thirds of the.qualified voters of the county, at an election lawfully held for that purpose, to a proposed issue of municipal bonds, intended by that instrument, meant the vote of two-thirds of the qualified voters present and voting at such election in its favor, as determined by the official return of the result. _ The words ‘qualified voters,’ as used in the constitution, must be taken to mean, not those qualified and entitled to vote, but those qualified and actually voting. In that connection a voter is one who votes, not one who, although qualified to vote, does not vote.”

The provision of the Constitution of Mississippi there construed reads thus:

“The legislature shall not authorize any county, city, or town to become a stockholder in, or to lend its credit to, any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a special eléction or regular election to be held therein, shall assent thereto.”

*698 We must hold that the above authorities are not controlling, and must look elsewhere for authority and reason on which to base our conclusion.

The first duty of courts is to examine the statute, and determine whether the intent of the legislature appears clearly therein. If it does, that is the end of the inquiry. Municipal corporations possess only those powers which are expressly conferred, or necessarily implied, in consequence of their being essential to the exercise of their proper-functions. While the same strictness is not, perhaps, required in construing statutes authorizing the issue of bonds for paving, erection of markets, and the like, as in those authorizing bonds for gifts or grants to railroads and similar purposes, still the general rule is that they must be strictly construed. The charter above quoted in plain terms requires “a majority of the qualified electors of said city voting in their respective wards.” Courts are not at liberty to inject words into a statute contrary to its clear meaning, even if absurd results follow. The question of bonding municipalities is an important one, and courts have nothing to do with the reasons or results where the language is unequivocal. To say that the legislature meant that a majority of those voting at the general election on the proposition should control would be to place in the statute words and an intent not found in it. We see nothing absurd, however, in the legislature providing that at'a special election a majority of the votes should control, while at a general election a majority of all the votes cast at the election should control. There might have been in the minds of the legislators the very best of reasons for such provisions.

Under the sound reason in Dayton v. City of St. Paul, supra, we have in this same charter an evidence of legislative intent which we cannot ignore. Section 29, tit. 3 (p. 1392, Local Acts 1893), provides for acquiring, constructing, and maintaining an electric lighting plant, if authorized by the qualified electors of said city voting *699 thereon. Such, also, is the language of our Constitution in submitting amendments. It requires only a majority of the voters voting thereon.

We think the clear weight of authority under similar provisions to the one now under consideration is in favor of the respondent. State v. Foraker, 46 Ohio St. 677 ; Enyart v. Hanover. Tp., 25 Ohio St. 618 ; People v. Brown, 11 Ill. 478; People v. Wiant, 48 Ill. 263 ; State v. Sutterfield, 54 Mo. 391 ; Chestnutwood v. Hood, 68 Ill. 132 ; State v. Mayor of St. Louis, 73 Mo. 435 ; Cocke v. Gooch, 5 Heisk. 294 ; State v. Babcock, 17 Neb. 188 .

The rule that electors absenting themselves from the election, and those present, but not voting for some candidate for every office or on every proposition submitted, are held to assent to the action of those who do attend and vote, is not applicable to a case like the present. That rule applies only to those cases where there are no limitations, and the question is left in general terms to the determination of the electors or voters.

The injunction was properly granted, and the writ will therefore be denied.

The other Justices concurred.