Opinion
No. 40764.
March 15, 1948.
1. ELECTIONS: Municipal Corporations: Waterworks Bond Election: St. Louis County Permanent Registration Act Not Applicable. The permanent registration act applying to St. Louis County did not govern a waterworks bond election held by the City of Kirkwood.
2. STATUTES: Rule of Construction. The general provisions of a statute must yield to special provisions where there is a conflict.
3. STATUTES: Elections: Administrative Construction. Since the act is neither uncertain nor doubtful it is not necessary to invoke the construction placed upon the act by successive boards of election commissioners.
4. MANDAMUS: Municipal Corporations: Bonds: Registration Required. Since the issuance of the bonds has been properly authorized by the voters, respondent should register the bonds as required by law.
PEREMPTORY WRIT ISSUED.
John Torrey Berger for relator; Lewis, Rice, Tucker, Allen Chubb, Charles Trauernicht and Alva C. Trueblood of counsel.
(1) The Voter Registration Act applicable to St. Louis County applies only to the registration of voters and to the conduct of elections of a county-wide nature, and, to a limited extent, to registration only in cities of more than 10,000 inhabitants. Art. 18, Chap. 76, R.S. 1939. (2) The Voter Registration Act applicable to St. Louis County was enacted pursuant to the mandate of the State Constitution of 1875. Art. 18, Chap. 76, R.S. 1939; Art. VIII, Sec. 5, Constitution of Missouri 1875. (3) The application of the voter registration provision of the Act to cities under 10,000 inhabitants and to other political subdivisions would have violated the Constitution of 1875. Art. VIII, Sec. 5, Constitution of Missouri, 1875. (4) The Constitution of Missouri, 1875, required the General Assembly to provide by law for the registration of voters in counties having a population of more than 100,000 and in cities having a population of more than 10,000, but not otherwise. Art. VII, Sec. 5, Constitution of Missouri, 1875. (6) The Constitution was mandatory where registration was to be required but prohibited registration for all elections to be held in counties of less than 100,000, in cities of less than 10,000, in school districts, and in all other municipal corporations or political subdivisions. Art. VIII, Sec. 5, Constitution of Missouri, 1875. (7) The General Assembly consistently followed the mandate of the Constitution of 1875 and just as consistently respected the prohibition. The Constitution of 1945, as it respects the registration of voters, is not self-enforcing. Constitution of Missouri 1945, Art. VIII, Sec. 5; State ex rel. Miller v. O'Malley, 342 Mo. 646, 117 S.W.2d 319. (8) No new legislation relating to the registration of voters in St. Louis County has been enacted since the adoption of the 1945 Constitution. Art. 18, Chap. 76, R.S. 1939. (9) An unconstitutional statute is not rendered constitutional by the adoption of a new Constitution, unless it is specifically so provided. 12 C.J., p. 727, sec. 99; 16 C.J.S., p. 96, sec. 45; State ex rel. Miller v. O'Malley, 342 Mo. 646, 117 S.W.2d 319. (10) The terms of the Act restrict the provisions regarding the conduct of elections by the Board of Election Commissioners to those elections where registration is required, and to those elections only. Secs. 11889, 11916, R.S. 1939. (11) Section 11917 of the Act dealing with elections in cities of 10,000 or more expressly limits the applicability of the Act to such elections to the provisions thereof dealing with permanent registration, new registration, transfers of registration, suspension and cancellation of registration, canvass and revisions of the registry. Its terms are inconsistent with the conduct of elections in such cities by the Board of Election Commissioners. (12) An act of the General Assembly will be construed, where possible, so as to bring it within the provisions of the Constitution in effect when it was enacted, and not in violation thereof. (13) Provisions for the conduct of elections insofar as such conduct is predicated upon a registration of voters should be construed in the light of the then existing constitutional provision as to registration of voters. (14) Section 11888 defines the applicability of the Act; it provides that "the conduct of elections, including primary elections, held in such counties (i.e., counties of 200,000 to 400,000) shall be governed by the provisions of this article." (15) Section 11928 is the grant of power to the Election Commissioners to conduct elections. It authorizes the Election Commissioners to "make provisions for all elections, general, special, primary or local, of the state and county at any time held, . . ." Only state and county elections are mentioned. Elections of municipalities and other political subdivisions are outside the terms of the section. (16) The only specific provisions of the Act relating to cities of more than 10,000 inhabitants (Section 11917, R.S. Mo. 1939) was inserted in the Act in compliance with the mandatory provision of Article VIII, Section 5, of the Constitution of 1875 with respect to the registration of voters in such cities. This provision of the Act is essentially one dealing with registration of voters. (17) Where general provisions of a statute are inconsistent with a more specific provision, the specific provision should be regarded as an exception to the general provision. 59 C.J., p. 1000; State ex rel. v. Reynolds, 229 S.W. 1057. (18) The provisions of Section 11917, being special as to elections in cities of 10,000 or more, will take precedence over the general provisions of the law. 59 C.J., p. 1051; State ex rel. Buchanan County v. Fulks, 296 Mo. l.c. 625; Tevis v. Foley, 30 S.W. l.c. 69; State ex rel. City of Springfield v. Smith, 125 S.W.2d l.c. 885. (19) Statutory laws in effect for many years, prescribing the manner of conducting municipal elections, should not be held to be repealed by implication but only by unequivocal language. 59 C.J., p. 1051; State ex rel. Buchanan County v. Fulks, 296 Mo. l.c. 625; Tevis v. Foley, 30 S.W. l.c. 69; 59 C.J., p. 935. (20) The 1939 amendment to the 1935 Voter Registration Law did not enlarge its scope. The elimination of restrictions is not the equivalent of the enactment of affirmative requirements. Laws 1939, p. 398, sec. 8; Laws 1935, p. 232, sec. 8. (21) Bond elections in cities of the third class and having a population of 10,000 are authorized by Section 7369, Laws of Missouri 1945, p. 1301. This section is the authority for the holding of a bond election in any Missouri city or village. Sec. 7369, Laws 1945, p. 1301; 59 C.J., p. 935, sec. 540. (22) This section is a special provision dealing with bond elections and bond elections only. It prevails over any general law. 59 C.J., p. 935, sec. 540. (23) The section provides that judges and clerks shall be appointed as in the case of other elections in such municipalities. Sec. 7369, Laws 1945, p. 1301. (24) This section particularly provides that the "council, board of aldermen or trustees, as the case may be, shall order an election to be held of which they shall give notice signed by the City Clerk." Sec. 7369, Laws 1945, p. 1301. (25) Section 7371, R.S. 1939 (a part of the Act dealing with bond elections) provides "upon the result of such election being certified by the judges and clerks thereof to the council, board of aldermen or trustees, as the case may be, . . . the council, board of aldermen or trustees, as the case may be, may, by ordinance or resolution, declare the result of such election and cause bonds of such municipality to be issued, . . ." Sec. 7371, R.S. 1939. (26) The giving of notice by the Board of Election Commissioners, the certification of the returns of the election to the Board of Election Commissioners and the declaration of the result of the election by the Board of Election Commissioners would be in direct conflict with the provisions of these sections. Sec. 7369, Laws 1945, p. 1301; Sec. 7371, R.S. 1939. (27) Administrative interpretation of the Act throughout the years should be given great weight, particularly when to do otherwise would cast a cloud upon all municipal elections held in St. Louis County since 1935 and prior thereto. 59 C.J., sec. 609; Huntsville Trust Co. v. Noel, 320 Mo. 749, 12 S.W.2d l.c. 754.
J.E. Taylor, Attorney General, Tyre W. Burton and David Donnelly, Assistant Attorneys General, for respondent.
(1) Article 18, providing for elections in all cities in counties to which it is applicable, is constitutional. Art. 18, Chap. 76, R.S. 1939; Art. VIII, Sec. 5, 1945 Mo. Constitution. (2) The bond election in Kirkwood should have been held in accordance with Article 18. Art. 18, Chap. 76, R.S. 1939; State ex rel. City of Springfield v. Smith, 344 Mo. 150, 125 S.W.2d 883; State ex rel. McKittrick v. Carolene Products Co., 346 Mo. 1049, 144 S.W.2d 153; Eagleton v. Murphy, 348 Mo. 949, 156 S.W.2d 683; State v. American Ins. Co., 200 S.W.2d 1; State ex rel. Armontrout v. Smith, 353 Mo. 486, 182 S.W.2d 571; Collins v. Twellman, 344 Mo. 330, 126 S.W.2d 231; State ex rel. Case v. Wilson, 151 Mo. App. 723, 132 S.W. 625; Reed v. Goldneck, 112 Mo. App. 310, 86 S.W. 1104; Sikes v. St. Louis S.F. Railroad Co., 127 Mo. App. 326, 105 S.W. 700. (3) The 1939 amendment. Sec. 11895, Art. 18, Chap. 76, R.S. 1939; State ex rel. K.C. Power Light Co. v. Smith, 342 Mo. 75, 111 S.W.2d 513; Kansas City v. J.I. Case Threshing Machine Co., 337 Mo. 913, 87 S.W.2d 195; State ex inf. Conkling v. Sweaney, 270 Mo. 685, 195 S.W. 714; State ex rel. McAllister v. Dunn, 277 Mo. 38, 209 S.W. 110; State ex rel. American Mfg. Co. v. Koeln, 278 Mo. 28, 211 S.W. 31; Scott v. Royston, 223 Mo. 568, 123 S.W. 454; Graves v. Little Tarkio Drain. District, 345 Mo. 557, 134 S.W.2d 70; State ex rel. Dean v. Daues, 14 S.W.2d 990; 59 C.J., sec. 493, F. 1, p. 894; United States v. Sischo, 262 U.S. 165; McDonald v. Hovey, 110 U.S. 619. (4) Municipal election laws were superseded, in part, by Article 18. Art. 18, Chap. 76, R.S. 1939. (5) The bond election in Kirkwood not held in conformity to law. Art. 18, Chap. 76, R.S. 1939; State ex rel. McAllister v. Dunn, 277 Mo. 38, 209 S.W. 110; State ex rel. American Mfg. Co. v. Koeln, 278 Mo. 28, 211 S.W. 31. (6) Administrative construction. Art. 18, Chap. 76, R.S. 1939; In re Bernays' Estate, 344 Mo. 145, 126 S.W.2d 209; State ex rel. Bell v. Phillips Petroleum Co., 349 Mo. 260, 160 S.W.2d 764; Orr v. Hoehn, 353 Mo. 426, 182 S.W.2d 596; State v. Davis, 335 Mo. 159, 73 S.W.2d 406.
The City of Kirkwood, a city of the third class in St. Louis County, through its City Council adopted an ordinance for holding a special election to authorize the issuance of $800,000 bonds for expanding its waterworks and sewer systems. The ordinance fixed the date of the election, designated the polling places, provided for naming the judges of election, prescribed the form of ballot and other details. The election was held and the issuance of the bonds was approved. The city prepared and executed the bonds and presented them to the State Auditor for registration as required by law but he refused registration on the ground the election should have been conducted by the Board of Election Commissioners of St. Louis County and not by the City Council of Kirkwood under the ordinance.
In holding the election the city acted under Section 7369 R.S. 1939, Mo. R.S.A., as amended Laws 1945, p. 1301 which governs city bond issue elections and which was originally passed in 1889.
Respondent contends that Section 7369 is no longer applicable to the City of Kirkwood in view of the adoption of a permanent [47] registration act which is Article 18 of Chapter 76, Sections 11888-11935, R.S. 1939, entitled: "Registration and Election In Counties Of More Than 200,000 And Less. Than 400,000 Inhabitants." The act applies to St. Louis County, and was adopted in 1935.
The question for decision therefore is whether such act which governs county-wide elections in St. Louis County also governs municipal elections in cities with such county having a population of over 10,000 inhabitants. Kirkwood has a population of 12,132.
The act appears to be primarily a permanent registration law although in its first section, Section 11888, it provides that in counties within the population limits set out "there shall be a registration of all qualified voters, and the conduct of elections, including primary elections, held in such counties, shall be governed by the provisions of this article." The act then provides for a County Board of Election Commissioners and prescribes its duties, provides for the establishment of election precincts, for the appointment of judges and clerks, for the canvassing of votes, tallying and proclaiming the result of elections, and for the disposition of the ballots and ballot boxes after election.
The act expressly excludes certain elections from its application. When first adopted it contained this provision: "This article shall not apply to elections for public offices determined otherwise than by ballot, to township or village elections, or municipal elections in cities under 10,000 inhabitants or to public school elections, or to elections for County Superintendent of public schools." (Sec. 8, Laws 1935, pp. 232-3). This section of the act was amended in 1939 (Laws 1939, p. 396) to read: "This article shall not apply to elections for public offices determined otherwise than by ballot, or to unincorporated town or village elections, or to public school elections, or to elections for county superintendent of public schools." (Sec. 11895, R.S. 1939.)
This section was no doubt inserted in observance of Article VIII, Section 5 of the Constitution of 1875 withholding from the general assembly the right to provide for registration of voters in cities under 10,000 population. The constitutional provision stated: "The General Assembly shall provide by law for the registration of voters in counties having a population of more than one hundred thousand and in cities having a population of more than ten thousand, but not otherwise. . . ." (The 1945 Constitution authorizes registration of voters without such limitations. Art. VIII, Sec. 5.)
Another section of the act deals specifically with cities of over 10,000 but limits the application of the act to registration only.
Section 11917 first states: "In all cities and towns in such county having a population of not less than 10,000 nor more than 100,000 inhabitants, the provisions of this article shall apply as regards to permanent registration, new registration, transfers of registration, suspension and cancellation of registration, canvass and revision of the registry: Provided, that in all special elections, or elections to fill vacancies, the registration books of the last preceding registration corrected by new or transferred registration, suspensions and cancellations may be used."
The same sections next provides that no person shall be permitted to vote in any municipal election held in such cities or towns who is not registered. In order to enforce this provision the same section then authorizes the county board of election commissioners to appoint a special assistant election commissioner to represent the board in each precinct where a municipal election is to be held. The assistant must take the registration book of the precinct to the polling place and make it available for the use of "the regularly appointed election officials of said city or town during the voting."
The same section finally concludes: "All provisions regulating municipal elections in such cities or towns and all penalties provided for the violation of laws relating to municipal elections shall remain in full [48] force and effect as far as they are not amended and modified by the provisions of this article."
It is plain that the purpose and effect of this section excludes from the application of the act special and local elections in the cities specified except as to registration, and leaves the conduct of such elections to the local officials under the same laws which were in effect at the time the act was adopted.
If such were not the purpose of this section there can be no reason for it being made a part of the act. In the first place the section expressly limits the application of the act to the registration requirements thus excluding the county board of election commissioners from conducting any elections in such cities. If the county board of election commissioners was intended to conduct such municipal elections, it would have been unnecessary to provide for a special assistant election commissioner because for such elections as are held under the provisions of the act the county board is required to deliver the precinct registration books to the judges of election of each precinct. And finally the section expressly continues in force existing provisions regulating municipal elections in such cities or towns. This indicates the intent of this section not to repeal such existing provisions.
Reading the act as a whole it appears to express the general intention that the county board of election commissioners should conduct only county-wide elections including primaries as this Section 11917 specifically limits the application of the act in municipal elections to registration only.
It is a settled rule of statutory construction that where general provisions in one part of a statute are inconsistent with specific or particular provisions in another part, the particular provisions must govern. Or, as we said in State ex rel. v. Reynolds, 287 Mo. 169, 229 S.W. 1057: "A familiar rule of construction frequently recognized by this court is that the general provisions of a statute must yield to special provisions where there is a conflict and where the general provisions in one part of the statute are inconsistent with the more specific provisions in another part."
Thus any reference in the act to elections generally that are held in the county must be read in the light of Section 11917 which excludes municipal elections from the application of the act except as to registration. Therefore, it follows that Section 7369 (as amended) remains unaffected as the applicable governing law relative to city bond issue elections, and in particular to the City of Kirkwood bond issue election we are here considering.
The construction placed on the act by the successive boards of election commissioners since its adoption in 1935 supports our views. The boards have refused to conduct local elections for public corporate entities and have conducted only the county-wide elections. But we do not believe that such construction of the act is needed here because we find the act is neither uncertain nor doubtful on the question before us. See In re Bernays' Estate, 344 Mo. 145, 126 S.W.2d 209.
Inasmuch as the City of Kirkwood has complied with all the applicable laws in holding the election and since the issuance of the bonds has been properly authorized by the voters, respondent should register the bonds as required by law. Accordingly, our peremptory writ of mandamus to require respondent to register the bonds should issue.
Peremptory writ of mandamus ordered issued. All concur.