# State ex rel. School District v. Gordon

> Supreme Court of Missouri · November 8, 1909 · 223 Mo. 1

URL: https://www.frixlaw.com/law-library/cases/8016977

## Case

- **Full name:** THE STATE ex rel. SCHOOL DISTRICT OF MEMPHIS v. JOHN P. GORDON, State Auditor
- **Court:** Supreme Court of Missouri
- **Decided:** November 8, 1909
- **Citations:** 223 Mo. 1; 122 S.W. 1008; 1909 Mo. LEXIS 31
- **Precedential status:** Published
- **Opinion:** On rehearing by Graves
- **Judges:** Are, Burgess, Fox, Gantt, Graves, Lamm, Motion, Sustained, That, Valliant, Views, Woodson
- **Cited by:** 23 later opinions in the Frix Law Library

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8016977

## Opinion text

ON MOTION FOR REHEARING.
DISSENTING OPINION.
GRAVES, J.
Being the original dissenter in this cause, and by our rules having ten days after final disposition to express my reasons for such dissent, I feel that the importance of the public question involved in the ease justifies a trespass both upon time and space for an expression thereof.
It has been said that no legal question has been properly settled until it is settled right. In a sense I have followed this idea, not however to the exclusion of another, that when a question has been settled in .one ease by a majority of the court, dissenters should not persist in repeating their views in a subsequent case involving the same question. But in my humble judgment that proposition is not in this case. To my mind we have departed from the beaten paths heretofore marked out by this court, and launched out upon an unknown sea, and this, too, without rudder or compass. Vacillating opinions have been the bane of every court and to the end that such should not be charged to the door of this court we should not change our own holdings without saying to the bench, and the bar, and the public officials of the Sate, that we have so done.
Viewing this ease as I do, it occurs to me that we have departed from the previous well considered *28 causes, and that, too, without saying so in plain and explicit terms. That a court has the right to change its views goes without question, and that it has a right to overrule previous holdings is equally unquestioned. Courts are not infallible any more than individuals are infallible, because, after all, courts are made up of individuals, and oftimes of individuals having varying minds.
Not only do I think we have departed from precedent in this cause, but I am impressed that a properly pleaded and urged contention made by the State and the State Auditor through the learned Attorney-General, has been entirely unconsidered by the opinion of my learned brother who wrote it, and by my learned brothers who assented thereto. This necessitates a statement of the issues, as such issues appear from the record, rather than as such issues may appear from mere’ conclusions.
I would not feel called upon to write, except for the fact that the opinion of the majority opens up the floodgates to fraud, and in addition compels a State officer to certify to things which a conscientious man should not be compelled to state in an 'official certificate. But sufficient by way of preamble. Let us now get to the facts of this case.
The School District of Memphis in Scotland county, Missouri, presented forty-five school bonds of five hundred dollars 'each to the State Auditor for registration under the law. These bonds were all of the same character so far as the tenor and wording thereof were concerned. The Auditor refused to register them and this action in mandamus was brought in this court to compel him so to do. The petition sets out in detail the acts of the school district and its officers up to and including its application for the registration of said bonds.
Inasmuch as my brothers in the majority have not seen fit to fully cover the allegations of the peti *29 tion for mandamus and the demurrer thereto filed by the Attorney-General, I deem it proper to take from the record the actual facts therein contained.
The petition of relator is fully set out in the abstract of record furnished to this court by the learned Attorney-General. Such petition charges the corporate capacity of relator. It then charges the 'official position of respondent and his duties as State Auditor, in so far as they relate to the registration of bonds such as are involved in this case. The petition of relator then charges that on December 22, 1908, the school board made an order “in the matter of calling an election for the purpose of submitting to the qualified, voters of said school district a proposition to- incur indebtedness to the amount of $22,500 and to issue bonds therefor for the purpose of erecting a schoolhouse in the First Ward of said school district, furnishing the same, and to erect an addition to and improve the schoolhouse in the Second School Ward of said school district.”
The petition of relator then charges that it appeared to the board of said school district that it was desirable to erect this new schoolhouse and to erect an addition to the other. This board likewise determined that the costs thereof would not be less than $22,500.
Afterwards the school board of said district made an order as follows:
“That a special election be held in said school district under and pursuant to the provisions of said section 9752 of 'the Eevised Statutes of Missouri of 1899, on Tuesday, January 26, 1909’, in the Men’s Waiting Eoom of the basement of the Court House in the city of Memphis, Missouri, for the purpose of submitting to the qualified voters thereof a proposition to incur an indebtedness for said school district in the sum of $22,500, for the purpose of using $20,000 of said amount in building a schoolhouse in the First School Ward of said school district and furnishing *30 the same, and $2,500 of said amount to he used in building an addition to and improving the schoolhouse in the Second School Ward of said district, and issue bonds therefor, said bonds to become payable in twenty years with privilege of payment at the end of five years and bear interest at the rate of five per cent per annum, payable semi-annually.”
The petition of relator further says that the notice given of such election was in the following form:
“Notice is hereby given to the qualified voters of the independent school district of Memphis, Missouri, that by order of the school board of said independent school district of Memphis, Missouri, made on the 22d day of December, 1908, it was ordered that a special election of the qualified voters, of said school district be held in the Men’s Waiting Room of the basement of the Court House in the. city of Memphis, Missouri, on Tuesday the 26th day of January, 1909, for the purpose of authorizing the said board of directors to borrow money to the amount of $22,500' and issue bonds for the payment thereof, for the purpose of using $20,000 of said amount in building a new 'school house in the First Ward of said district, and $2,500 of said amount to be used in building an addition to and improving the schoolhouse of the Second Ward of said district. Said bonds to run twenty years, with the privilege of payment at the end of five years, and to draw five per cent semi-annual interest from the date of their issue. The qualified voters voting at said election shall vote by ballot. Those voting in favor of the loan shall have written or printed on their ticket ‘For the Loan.’ Those voting against the loan the words, ‘Against the Loan.’ ”
It is further charged in the petition of relator that upon a return of the vote the propositions heretofore submitted as specified in the order and the notice hereinabove quoted received the necessary vote for adoption. It then appears that said school district by and *31 through its directors entered the following order:
“Whereas, at an election duly called and held in School District of Memphis, Missouri, after notice thereof had been duly given for the time and in the manner required by law, there were authorized to be issued the school building bonds of said district to the amount of twenty-two thousand five hundred dollars; therefore, be it
“jResolved, That under the authority aforesaid, there are hereby directed to be issued forty-five school building bonds of five hundred dollars each of School District of Memphis, Missouri, dated May 1, 1909, and becoming due twenty years thereafter, which said bonds shall bear interest evidenced by coupons at the rate of five per cent per annum, payable semi-annually. Both principal and interest of said bonds shall be made payable at the Mercantile Trust Company in the city of St. Louis, Missouri; be it further
“Resolved, that the bonds hereby authorized shall be in substantially the following form:
“No.-- $500'.
“UNITED STATES OP AMERICA
“STATE OP MISSOURI
“SCHOOL DISTRICT OF MEMPHIS
“School Building Bond.
“Know all men by these presents, that School District of Memphis, in the State of Missouri, acknowledges to owe and for value received hereby promises to pay to bearer five hundred dollars lawful money of the United States of America on the first day of May, 1929, with interest thereon from the date thereof at the rate of five (5) per centum per annum, payable semi-annually on presentation and surrender of the annexed interest coupons as they severally become due. Both principal and interest of this bond are hereby made payable at the office of the- Mercantile Trust Company in the City of St. Louis, Missouri.
*32 “This bond is redeemable at the option of the school board of Memphis at any time after May 1,1914.
‘ ‘ This bond is one of a series of like tenor issued for the purpose of providing funds for the erection of a school building in and for said School District of Memphis under the authority of chapter 154 of the Revised Statutes of the State of Missouri, and of an election duly called and held in said district; and it is hereby certified and recited that all acts, conditions and things required to be done precedent to and in the issuing of the bond have been done, happened and been performed in regular and due form as required by law; that a direct annual tax has been duly levied upon all of the taxable property in said School District of Memphis for the payment of the principal and interest of this bond at their respective maturities, and that the total debt of said district, including this bond, does not exceed the statutory or constitutional limitations.
“In testimony whereof, the board of school directors of Memphis, Missouri, has caused this bond to be signed by its president and attested by its secretary, and has caused the annexed interest coupons to be executed with the fac simile signatures of said officers this first day of May, 1909.
“Attest:
“W. T. Reddish, G. E. Leslie,
“Secretary. President.”
It should be stated here that the bond set out in relator’s petition duly copied from the petition as above set out, is the bond that was presented to the Auditor for registration and none other. In other words, the entire bond issue is in thé form set out in relator’s petition.
Upon the filing of relator’s petition in this court, which said petition was duly verified by oath, and contained the bond hereinabove set out, the Attorney-General when called upon to plead thereto for and in behalf *33 of the respondent, the State Auditor, filed the following demurrer:
“Now comes the respondent, John P. Gordon, State Auditor of the State of Missouri, and waiving the issue of an alternative writ in the above entitled cause, demurs to the petition of the relator herein and assigns the following as his grounds of demurrer, to-wit:
‘ ‘ First: Said petition fails to state facts sufficient to constitute a cause of action.
“Second: Because the petition upon its face discloses that two separate and distinct propositions were submitted and voted upon jointly.
“Third: Said petition and the matters and things therein as stated and set forth are not sufficient in law nor in equity to entitle the relator to the relief asked for in said petition nor to authorize the issuing of the writ of mandamus therein prayed for.
“Respondent further says that by reason of the demurrer hereinabove set forth he should he dismissed with his reasonable costs.”
The case came on to hearing upon the petition of relator fairly abstracted as aforesaid, and the demurrer as aforesaid. Questions of law will be noted during the course of the opinion.
I. The foundation of the majority opinion is to the effect that we must determine whether or not a proposition as submitted to voters is double by the same rule that we determine a doubleness of a proposition in a title to a bill before the Legislature under article 4, section 28, of the Constitution. This rule of construction we do not concede, nor do the cases in this State proceed upon any such theory, except the present opinion in which we transplant the ideas of the Supreme Court of Maine to Missouri.
In a way the two questions may be akin in that *34 the prevention of fraud is a purpose to he attained in each. But the difference lies in the fact that in determining doubleness in Legislative acts, the courts do it under Constitutional edict, whilst such is not true in determining doubleness of a proposition to be voted upon by the people. For a proper conception of the difference we must consider the duties of a court under the Constitution, and the duties of a court in the course of administering justice according to a proper understanding of the law. The people made the Constitution and when in their sovereign power they have said that a thing must be done in a certain manner it does not lie within the power of the courts, or any other creature of the Constitution, to gainsay such expressed will. Not so, however, where the court is dealing with a question not specifically provided for by the fundamental law, to-wit, the Constitution.
The sovereign power which prescribes the things which might be and might not be done, likewise created the courts and other departments of government. If the voice of the constitution-making power, i. e., the people, said that under certain circumstances, specific things must be done, it is not for the courts, the creatures of the same Constitution to gainsay such constitutional mandate. If the Constitution (the express voice of the people) says an instrument must be framed in certain language, it is not for the courts, the mere creatures of the Constitution to say that it shall not be done. For these reasons we have held, and rightfully held, that indictments must conform to what the sovereign power of the State has said must be done. [State v. Warner, 220 Mo. 23 ; State v. Campbell, 210 Mo. 202 ; State v. Skillman, 200 Mo. 408 .]
In other words, the people who make and unmake constitutions have spoken. In so speaking they not only prescribe a certain course of conduct but likewise create the courts and give to them the only powers which they possess. It is not the province of *35 the creature to tear down and rebuild the structure of the creator. What the'creator said as to how certain things could and should be done, if clearly expressed, is not a matter for the courts, the mere creatures of the same power. Of course, if the language is dubious and doubtful the courts can consider it and interpret it, but not otherwise.
So that we say that the basis of the construction fixed by the majority opinion is improper in that there is no analogy between things which must be done under constitutional mandates and things which may be done under the judgment of the courts in the administration of justice. Mandates of a constitution may and often do appear to be unreasonable, yet if couched in plain language, and in no way dubious or uncertain, the courts, the creatures of the same instrument, must bow in humble submission to the constitutional mandate.
We know that in some instances modern practices have been to hold as naught constitutional provisions and for courts and other governmental agencies to write anew these venerable instruments. To this modern doctrine we have never, adhered, and as long as constitutional government is to be ours, will never lend our assent.
But to the rule of construction adopted by the majority opinion in this case, let us now revert. Constitutional mandates, whether reasonable or unreasonable, must be followed by the courts, because the courts (the stream) can never rise higher than the source.
There may be one or two expressions from the courts, now seized upon by the majority opinion, to place the construction of what is a double proposition upon the basis of a constitutional mandate concerning double propositions, but these cases are so few and far between that serious discussion of them can well be omitted.
*36 Doubleness of propositions in questions to be voted upon by tbe people did not have its origin in constitutional mandates, and with one or two exceptions up to the present case, has never been reckoned along that line. Be it further said that such exceptions do not come from Missouri. It is true that we have studiously avoided in this State entrenchment upon the Constitution, and we have likewise through our courts as studiously undertaken to prevent and avoid frauds in all kinds of elections. We have denounced double propositions which were calculated to secure votes which could not otherwise be secured. We have done this in Missouri prior to the present opinion, on the theory that the courts would and could suppress frauds, and could and would see that there was a fair expression upon each and every question relating to taxation, but not on the theory that there was any special analogy between the performance of this duty and certain constitutional mandates. The difference lies in this, that constitutional mandates must be obeyed whether reasonable or unreasonable, but the fact as to whether or not the courts should permit a double proposition, which upon its face indicates that there was a purpose to obtain votes for the proposition which could not otherwise be obtained, rests upon an entirely different theory. The latter question rests upon the sound discretion of the courts in the administration of justice to prevent a fraudulent exercise of the taxing power of the State, a power closely scrutinized by the courts.
So to our mind the discussion of what can and cannot be placed in the title clause of a bill pending before a Legislature has no special significance here. Not only so, but the construction given to said titles are and would be- repugnant to what a court would say as to the exercise of the taxing power of the State. The title to a bill is only expected to be a fair index to the context of the bill. On the other hand, proposi *37 tions relative to the taxing power of the State and propositions to be voted upon by the plain people must be plainly stated and in single and substantial form. Nbt only so, but they must be so stated as to avoid what has been denominated by the courts as logrolling in the interest of a combined proposition which would not occur in the interest of a single proposition. The courts in the administration of justice, and without any reference to constitutional mandates, have discovered that doubleness of propositions to be voted upon by the public was inducive of fraud and that it was uncertain whether either of two or more propositions could have been carried by vote had they been submitted.singly. To obviate this fraud upon the taxing power of the State this court up to the present time, and excepting the present case, has consistently turned its face against doubleness of propositions and the frauds which are the necessary outgrowth thereof.
However, before going to the holding of the courts of this State it might be well to submit the general proposition of law resulting from the examination of all cases bearing upon the question. In 21 American and English Encyclopedia of Law (2 Ed.), 47, it is said: “Two propositions cannot be united in the submission so as to have one expression of the vote answer both propositions, as voters might be thereby induced to vote for both propositions who would not have done so if the questions had been submitted singly. ’ ’
This announcement of the general doctrine is not only in full accord with the cases in Missouri, but with all of the jurisdictions to which our attention has been called. And if we be called upon to assign a reason for this salutary rule, that reason would be, that the taxing power of the State should be exercised with the utmost openness and fairness and without opportunity for ‘ ‘ j ockeying ’ ’ and ‘ logrolling. ’ ’ In other *38 words, the courts of the country generally, in matters which go to the exercise of the taxing power of the State, have been exceedingly cautious to see that such power was exercised by a fair expression at the election held for such purpose. The question is not whether a constitutional mandate has been followed' but whether the proposition submitted is one which tended within itself and upon its face to induce “jockeying” and “logrolling” in order to carry a combined proposition. That such things may be done is apparent to all thinking minds. To the average court it would appear that if there were five wards in a school district and one of such five was extremely anxious to have voted a large sum for buildings in that ward it would be easy to have a proposition submitted to make nominal improvements in the other four wards in order, by “jockeying” and “logrolling” to secure the necessary votes. Against this proposition the courts of this State, and in my judgment in most other States, have turned a deaf ear. Yet that is the proposition that confronts us in the present case.
As expressive of the latest views on this proposition, this court, in the case of State ex rel. v. Wilder, 217 Mo. 261 , said:
“But there is another reason why a peremptory writ should not be awarded in this case, and that is that the proposition submitted to the voters embraced two separate and distinct propositions; one for the construction of a public sanitary sewer in District No. 7, in West Joplin, and another for the construction of a storm sewer in Willow Branch District, in said city. In the way this was submitted to the voters, they had bo< alternative than to vote, if they voted at all, for or against both propositions. They could not vote for one and against the other, however much they might have desired' to do so.
“In State ex rel. v. Allen, 186 Mo. 673 , the propo *39 sition voted upon at the election was ‘for said city to become indebted in the sum of twelve thousand dollars in excess of its annual revenue, for the following purposes, to-wit: Forty-five hundred dollars to be used for the purpose of purchasing a site and the erection and construction of a public building thereon or the purchase of a site and building to be used for a city hall, city prison and hose house and for furnishing the same, and the further sum of seventy-five hundred dollars to be used in making repairs and improvements in waterworks and electric light plant and extension of water mains and electric lines belonging to said city. ’ This was all submitted as a single proposition. It was held that this submission contained at least two separate and distinct propositions, one for an increase of municipal indebtedness to a certain amount for one purpose, and another for an increase of municipal indebtedness for another and different purpose, and ‘that two propositions cannot be united in the submission so as to have one expression of the vote answer both propositions, as voters thereby might be induced to vote for both propositions who would not have done so if the questions had been submitted singly (21 Am. and Eng. Ency. Law [2 Ed.], 47), a principle recognized by this court in the recent case of State ex rel. v. Allen, 178 Mo. 555 .’
“The voters should have been given the opportunity to vote for and against each object. As submitted, the voters could vote for or against both, but not for one and against the other. The property-owners in District No. 7 were not, it is clear, interested in the proposed storm sewer in Willow Branch District, for said two districts are not contiguous, nor do they lie in the same part of the city, nor in the same natural drainage area; and the proposed sanitary sewer in District No. 7 would not in any manner connect with or have any relation to said storm sewer; nor would the citizens of Willow Branch District have *40 any interest in the proposed sanitary sewer for District No. 7; nor would the people of the city of Joplin, outside of said proposed sewer districts, be served or benefited by either of them. ’ ’
And in the case of State ex rel. v. Allen, 186 Mo. l. c. 675, cited supra, written by our Chief Justice Brace, the following was said:
“That this submission contained at least two separate and distinct propositions, one for an increase of municipal indebtedness to a certain amount for one purpose, and another for an increase of municipal indebtedness to another and different amount for another and different purpose, is beyond question. And it being manifest that such a submission was in the teeth of the well-recognized principle of law, ‘That two propositions cannot be united in the submission so as to have one expression of the vote answer both propositions, as voters thereby might be induced to vote for both propositions, who would not have done so if the questions had been submitted singly’ (21 Am. and Eng. Ency. Law [2 Ed.], 47), a principle recognized by this court in the recent case of State ex rel. v. Allen, 178 Mo. 555 , the motion to quash the alternative writ was unanimously sustained, orally, by the Court in Banc, on the submission of the case on the twenty-fourth of December, 1904. By which, it was in effect held that the bonds issued in pursuance of such election were invalid, and the Auditor under no obligation to register them. This opinion is written simply to make that ruling more explicit.”
Of course it does appear in the opinion last quoted that the writer of the majority opinion in this case did not sit, possibly for the reason that he was not present at the time of the argument, although that reason does not appear. This, however, like the case in the 217 Mo., above cited, were opinions by this *41 Court in Banc. Not only so, but tbe opinion in each case was unanimous, with the exception aforesaid.
It will be noted that Chief Justice Brace quoted with approval 21 Am. and Eng. Ency. Law (2 Ed.), p. é7, and in our humble judgment in so doing he gathered to his case the summarized views of the vast majority of the courts.
From the eases above mentioned and from all other Missouri eases it will be observed that we have adhered to the doctrine that doubleness of a proposition to be submitted to the voters has been condemned on the theory that the voter has not had the privilege of casting a separate and distinct vote upon each proposition, and not on the theory that any constitutional mandate as to the title of a bill has been violated.
To hold that donbleness should be determined by the construction which the courts place on constitutional mandates can easily be shown to be erroneous. In the first place courts generally hold under such constitutional mandates that if the title is a fair index to the bill, and the questioned subject-matter is germane to the subject expressly provided for in the title, then the title meets the constitutional mandate. Yet, whilst this is true and our courts have so held, who for a moment would say that where the taxing power of the State was to be called into question, the proposition, the purpose of which was to carry the tax, should not be specifically and plainly stated! In other words, in cases of that character the question as to whether or not the subject-matter is germane to the proposition is not a matter of consideration. There can be no such a thing as a germane matter to the proposition to be voted upon in the exercise of the taxing power of the State, however true this may be as to the doubleness of propositions in legislative matters. It occurs to us, therefore, that the very foundation of all the reasoning expressed by the majority opinion *42 absolutely falls with a consideration of the difference between propositions which involve the taxing power of the State and propositions relative to what may not be germane subject-matters in the title to a bill.
At most be it said that up to this opinion nowhere in the annals of the State has such a comparison been made. The rule of construction is wrong. What might be donbleness of propositions in the title to a bill is ■determined by many considerations which could not be applied to what is meant by donbleness of propositions as applied to questions involving the taxing power. The two questions are akin only to the end that they both tend to suppress fraud. If we were to apply the rule “germane to the subject,” as we do in construing the constitutionality of laws, to the propositions submitted in exercising the taxing powers of the State, where would be the end?
In our judgment the Missouri cases cited above, together with several others, should be overruled in the present majority opinion, if it be correct, so as to no longer be stumbling blocks to public officials in the discharge of their duties.
II. Not only does the Supreme Court of Missouri place this doubleness of proposition on the .basis of violating the right of a full and fair public expression upon matters pertaining to taxation, but other courts have been equally expressive.
In Leavenworth v. Wilson, 69 Kansas L’c. 78, that court says: “The subject of purchasing a particular waterworks plant already in existence is utterly diverse from that of building a new one. It needs neither argument nor illustration to make this plain truth apparent to any mind of ordinary capacity. The judgment of the mayor and council upon one of these subjects might well be approved by tbe people through a majority vote in favor of bonds, although the judgment of the same officials upon the other subject would *43 be overwhelmingly repudiated at a bond election. The ballot required to be used at the election in question obliged the voter to approve bonds for both purposes or to reject bonds for both purposes. If he favored one plan and disapproved the other he was allowed no opportunity to indicate his view. Because of the dual ballot persons adverse to purchase may have voted with persons adverse to building for bonds which, thus supported, carried, although both propositions would have failed ignominiously had they been separately submitted; therefore, the election was not a fair one to the people of the city of Leavenworth.”
Likewise, in the case of Gras and Water Co. v. City of Elyria, 57 Ohio St. 374 , the court among other things, said: “And it is the policy of the statute that the proposition for each separate improvement shall stand on its own merits, unaided by combination with any other measure, and be so acted upon by the council in the first instance, and then, if adopted, be so submitted for approval by the electors that each may be voted upon as a separate measure, uninfluenced by combination with others. The reason is, that the requisite majority of the council, and of the electors, may be in favor of one measure, and against the other, or against each; while by uniting them as one, and submitting them to be acted upon in that form, the members of the council, and the electors, are required to vote for or against both propositions combined, or abstain from voting at all, and thus denied the right to express their will with respect to each.”
In Truelsen v. City of Duluth, 61 Minn. 48 , it was said: “If the city council desired to place a proposition to erect a water and light plant or plants fairly and reasonably before the voters, as against a proposition to purchase the existing plant, the propositions should have been submitted so as to allow a free and full expression on the real merits of each.”
*44 A very similarly worded proposition comes from the State of Washington. We say similarly worded because, in this proposition, the first statement made is in reference to a proposition to borrow $25,000, which was followed by a subdivision of the $25,000 into particular parts as in the case at bar. That court, speaking of such proposition, said: “By ordinance 178, the city council ordered the submission of a proposition to borrow $25,000 upon time bonds, under the act of March 7, 1891 (Acts, p. 261). The purposes for which this money was to be borrowed were set forth in the ordinance as — (1) To pay outstanding indebtedness, $20,000; (2) for the purchase of fire apparatus, $1,500; (3) for the purchase of a lot of land, and the erection of a city hall and jail thereon, $3,500. But one ballot was used, ‘Bonds, yes,’ and ‘Bonds, no;’ and appellant contends that this was irregular, inasmuch as there were two propositions involved, viz., a proposition to fund $20,000 of old debts, and a proposition to borrow $5,000 for future purposes. We agree with him in this, notwithstanding the argument of the respondent that the statute is broad in its permission to burrow money for municipal purposes, and that the acquisition of money to pay debts is a strictly municipal purpose.” [McBryde v. Montesano, 7 Wash. l. c. 72. See, also, 20 Am. and Eng. Ency. Law (2 Ed.), 1111; 21 id. 47.]
In Lewis v. Commissioners of Bourbon County, 12 Kansas 186, even stronger language than we have used was employed by the court to express its disapproval of doubleness of propositions under the taxing power. “It may be conceded that two or more questions may be submitted at a single election, provided each question may be voted on separately, so that each may stand or fall upon its own merits. But that is a very different matter from tacking two questions together, to stand or fall upon a single vote. It *45 needs no argument to show the rank injustice of such a mode of submission. By it several interests may be combined, and the real will of the people overslaughed. By this combination an unpopular measure may'be tacked on to one that is popular, and carried through on the strength of the latter. A necessary matter may be made to carry with it some private speculation for the benefit of a few. Things odious and wrong in themselves may receive the popular approval, because linked with propositions whose immediate consummation is deemed essential. It is against the very spirit of popular elections.”
In the case of Keane v. Fort Scott, 14 Fed. Cas. l. c. 162, the proposition under which bonds, were issued thus reads: "$75,000 to the capital stock of the M., K. & T. R. R. and $25,000 for the purpose of procuring the right of way for the road of said company through the corporate limits of the city, and the purchase of grounds for depot and machine shops to be donated to the company.” The city attempted to defend in the suit upon the bonds in the hands of a bona-fide purchaser. In discussing this contention, Judge Dillon uses this language: "The objection to the submission would probably have been well taken in a suit to prevent the issue of the bonds, but it comes too late now. ’ ’
III. By petition in this case, relator has pleaded and fully set out the different steps taken. Relator has further furnished in said pleadings a copy of the bond, and copy of the questions voted upon and all other things necessary to show the exact proceedings had by the school district. From that petition it will be noticed from our statement that the school board directed that there be submitted to the qualified voters a proposition to incur indebtedness and issue bonds therefor in the sum of $22,500, this sum to be used for a schoolhouse in the first ward and furnishing the *46 same and to erect an addition to and improve the schoolhouse in the second ward.
It will further he noticed from the record, which we have purposely set out at length, that the notice which was caused to be published, said nothing about furnishing the new schoolhouse in the first ward and in that manner departs from the order of the school board.
Lastly, when we go to the order for the issuance of the bonds and the bonds themselves, we find that the order shows nothing as to dividing the funds for two separate purposes but the bonds themselves say on their face: “This bond.is one of a series of like tenor issued for the purpose of providing funds for the erection of a school building in and for said school district of Memphis.”
It will be observed that whilst the proceedings show that two schoolhouses were to be built yet they issue forty-five bonds of $500 each, being the full amount of $22,500 and recite that these bonds are to build “a school building,” but do not recite that they are for the double purpose of building one new building and remodeling or rebuilding an old one.
Under section 5167, Revised Statutes 1899, the Auditor of State is required when bonds are presented to him to make a certificate to this effect: “And who shall certify by endorsement on such bond that all the conditions of the law have been complied with in its issue, if that be the case, and also that the conditions of the contract under which they were ordered to be issued have also been complied with, and the evidence of that fact shall be filed- and preserved by the Auditor.”
Notwithstanding this provision of the statute, this court by its majority opinion has sought to compel the Auditor to certify that he had evidence on file in his office showing that by proper and legal proceedings these bonds, forty-five in number and of the value of *47 $500 each, had been duly authorized for “a school building. ”
It was the duty of the relator by his petition to aver facts to show that he was entitled to the relief sought. That relief is prescribed by section 5167. When relator set out all the proceedings, as was done in this case, and the respondent by the first terms of his demurrer, set out in full in our statement, challenges the sufficiency of that petition in every respect, then it becomes the duty of this court in passing upon this demurrer to see that all proceedings to entitle the registration of the bonds fully appear.
Nor will it do to say that this question was not pressed upon the court. The first brief filed by the learned Attorney-General suggested to this court that the recitation of the bonds was at variance with the proceedings in the case and in the motion for rehearing it is most strenuously urged, and in my humble judgment we have handed down an opinion which directs the registration of any bond which may hereafter be tendered.
Throughout the entire school proceedings part of these bonds were to be for one schoolhouse and part for another and yet we say, by the opinion of our brothers in the majority, that the State official, charged with scrutinizing the proceedings, shall register a bond which recites upon its face that it is one of the number which covers the entire appropriation and is for “a school building, ’ ’ and not for two buildings.
We have lengthened this dissenting opinion. in the way of elucidating facts, more perhaps than ought to have been done. We thought it due, at least to the public and to public officials, that a full statement of the proceedings which authorized the registration of these bonds should appear.
We are clearly of the opinion, for at least two reasons, that these bonds should not have been registered. First, because of the doubleness of the propo *48 sition, and second, because the bonds tendered for registration are not in conformity, by way of their recitations, with the other proceedings had by the school district.
Burgess and Fox, JJ., concur in these views, and are of opinion that the motion for rehearing should have been sustained.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8016977. Public record. Not legal advice.