13 Mont. 58 | Mont. | 1893
This is an appeal from the judgment of the lower court, rendered on a submission on an agreed statement of facts, under and in pursuance of chapter 3, section 468, division 1 of the Compiled Statutes of Montana. On the second Monday of April, 1892, as appears from the agreed statement of facts, an election was regularly held, in accordance with the statutes of the state, in the city of Great Falls, by the qualified voters of said city, to determine whether or not the city council of said city should issue, and have authority to issue and sell, the bonds of said city, to wit: forty thousand dollars of said bonds for the purpose of purchasing lands for a park, to be owned and used by said city; thirty thousand dollars of said bonds for the purpose of funding the outstanding indebtedness of said city; thirty thousand dollars of said bonds to be used for constructing
It is conceded that the election held in said city on the proposition to authorize the issuing of all of said bonds, the issuing and sale thereof, and all proceedings had and things done in relation to said bonds, were had, held, and dime under and in pursuance of an act to enable cities and towns to incur indebtedness, passed by the legislative assembly of the state of Montana, approved March 5, 1891, and acts of which it is amendatory. Section 1 of the Act of 1891, supra, is as follows:
“Section 1 of‘An act to amend an act to enable cities and towns to incur indebtedness,’ approved February 28, 1889, is hereby amended so as to read as follows:
“‘Sec. 1. That any incorporated city or town in the state of Montana having an assessed valuation of eight hundred thousand dollars or over is hereby authorized to submit to the qualified electors of such city or town the question whether coupon bonds shall be issued on the credit of such city or town to an amount not exceeding, including existing indebtedness, four per cent of its assessed valuation, for the purpose of funding any or all existing indebtedness, constructing waterworks, public buildings, street grades, bridges, sewers, or other public improvements.’ ”
In the enactment of this law the legislative assembly seemingly overlooked section 6, article xiii, of the state constitution, which is as follows:
“No city, town, township, or school district shall be allowed to become indebted in any manner, or for any purpose, to an*60 amount, including existing indebtedness, in the aggregate exceeding three (3) per centum of the value of the taxable property therein, to be ascertained by the last assessment for the state and county taxes previous to the incurring of such indebtedness; and all bonds and obligations in excess of such amount given by, or on behalf of, such city, town, township, or school district, shall be void.”
Counsel for appellant claim that as the statute under which these bonds were issued permits cities of the class therein named to incur an indebtedness of four per cent of its assessed valuation, including existing indebtedness, whereas the constitution, as above quoted, limits the amount of indebtedness such cities may incur to three per cent of its assessed valuation, it necessarily follows that the whole of said statute is void by reason of its being in conflict with said section of the constitution. Counsel for respondent contend that there is much of value and importance in said statute that can be enforced, and ought to be enforced, by the city council, in order to properly improve the city, and enforce and execute the power granted to the city council; and that the statute is only unconstitutional in so far as it provides for incurring an indebtedness of four per cent whereas the constitutional limitation of the indebtedness is three per cent. The respondent contends that the only repugnancy in the statute to the constitution is the rate of indebtedness the city can incur; that the city, by issuing and disposing of these bonds, will not incur an indebtedness greater than allowed by the constitution; that the city, under said statute with the four per cent stricken out, could incur this indebtedness without violating or exceeding the constitutional limit of three per cent, leaving said statute intact as to the manner of proceeding in the exercise of authority by the city council in the care and necessary improvement of the city. It is conceded that the assessed valuation of the property included within the city limits of the city of Great Falls exceeds seven million dollars; that, at the time of the election referred to herein, the indebtedness of said city was about thirty thousand dollars; and that the indebtedness of said city, including the bonds in this controversy, will not exceed one hundred and fifty thousand dollars, which is considerably below the constitutional limit.
Sutherland, in his work on Statutory Construction (§ 138), speaking of implied repeals, says: “Subsequent legislation repeals previous inconsistent legislation, whether it expressly declares such repeal or not. In the nature of things it would be so, not only on the theory of intention, but because contradictions cannot stand together. The intention to repeal, however, will not be presumed, nor the effect of repeal admitted, unless the inconsistency is unavoidable, and only to the extent of the repugnance. Implied repeals are not favored.”
Judge Cooley, in his work on Constitutional Limitations, speaking of statutes unconstitutional in part, says: “It will sometimes be found that an act of the legislature is opposed in some of its provisions to the constitution, while others, standing by themselves, would be unobjectionable. So, the forms observed in passing it may be sufficient for some of the purposes sought to be accomplished by it, but insufficient for others. In any such case the portion which conflicts with the constitution, or in regard to which the necessary conditions have not been observed, must be treated as.a nullity. Whether the other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder. A statute, it has been said-, is judicially held to be unconstitutional, because it is not within the scope of legislative authority; it may either propose to accomplish something prohibited by the constitution, or to accomplish some lawful, and even laudable, object, by means repugnant to the constitution of the United States or of the state. A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the legislature, and being in the form of law, may contain other useful and salutary provisions, not obnoxious to any just constitutional exception. It would be inconsistent with all just principles of constitutional law to adjudge these enactments
In People v. Supervisors, 17 N. Y. 235, 241, Harris, J., delivering the opinion of the Court of Appeals, says: “A legis
Judgment of the lower court is affirmed.'
Affirmed.