265 Mo. 181 | Mo. | 1915
Lead Opinion
Original proceeding by mandamus to compel the State Auditor to register and certify county bonds.
On June 23, 1914, the relator filed its petition in this court reciting that the county court of Christian county had created a building fund pursuant to section 3, p. 122, Laws 1913, and had transferred to said building fund certain unexpended balances in other funds then existing in the treasury of said county amounting to about $12,500. That the valuation of all
Upon the filing of relator’s petition respondent entered his appearance and, after agreeing that the relator’s petition might be considered as and for an alternative writ, thereupon filed his demurrer alleging that said petition stated no cause of action, for the reason that on the face thereof it appeared that the debt sought to be created by the issuance of said bonds was in excess of the revenue and income of the cotmty for the current year, and that sections 3, 4, 5, 6 and 7 of the
We do not deem it expedient to encumber our opinion by incorporating herein the Act of 1913, the constitutionality of which is challenged by respondent. Every lawyer in the State has access to that enactment. It is, however, conceded that the Act of 1913 was fulhr complied with by the relator, and on the pleadings the sole issue before us is whether or not said Act of 19.13 violates the following provision of section 12 of article 10 of our State Constitution, to-wit:
“No county, city, town, township, school district or other political corporation or subdivision of the State shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose. ”
I. Preliminary to the determination of the issue before us learned counsel for relator call our attention to the axiomatic rule that a statute will not be declared unconstitutional unless its invalidity appears beyond a reasonable doubt. In this insistence we unreservedly concur.
Relator and respondent agree that the voters of Christian county did not assent to the issuance of the bonds tendered for registration. That the assessed ' luation of all taxable property in Christian county for the year 1913 was only $5,041,670, and that the hi best rate of taxes which could be lawfully levied
To sustain their insistence that the law under which the bonds tendered for registration is valid, relator cites Lamar Water & E. L. Co. v. Lamar, 128 Mo. 188, l. c. 222-3, wherein it was held by a divided court that a city may legally make a contract for water' extending over a period of years, and that an annual tax levy to pay for water thus contracted for was not a debt within the purview of that part of the Constitution now under consideration. A very similar case was Saleno v. City of Neosho, 127 Mo. 627, wherein the rule was announced that a contract to purchase water for a city to be delivered and paid for during a term of years, does not become a debt of the city until such water is actually delivered; therefore, the obligation to purchase such water did not become a debt created in the year when the contract was made. The rule announced in the cases last cited has been quoted with approval in subsequent opinions as follows: Water Co. v. City of Neosho, 136 Mo. 498, and Water & Light Co. v. City of Lamar, 140 Mo. 145. However, relator’s difficulty rests in the fact that these cases were based upon facts quite different from those in the case at bar.
Although an obligation to purchase water at a price stipulated in a contract is not- a debt until the water thus purchased is delivered, what shall we say about these negotiable bonds which when sold will become absolute obligations to pay to the bearers thereof amounts of money aggregating. $65,000‘, regardless of whether the relator gets the courthouse, etc., which it intends to build with the proceeds of these bonds?
The case of Trask v. Livingston County, 210 Mo. 582, is cited by both parties, and while the language used by Judge Gantt in that opinion seems to be in full accord with the doctrine announced in Book v. Earl, 87 Mo. 246, and Anderson v. Ripley County, 181 Mo. 46, there is much obscurity as to the facts recited, or intended to be recited, in the Trask case, as well as in the judgment which that opinion affirms. Therefore, it does not furnish much support to the contentions of either party.
The case of Decker v. Diemer, 229 Mo. 296, relates to the right of county courts to transfer moneys collected for one fund to another fund, and does not cast light upon the right of a county to create debts payable in future years.
Respondent to sustain his contention cites and relies upon Book v. Earl, 87 Mo. 246, wherein, by a unanimous opinion, it was ruled that a county court could not incur a debt in excess of its income and revenue for any current year to pay for remodelling or building additional rooms to its county courthouse, without first obtaining the assent of two-thirds of the votes cast at an election held for that purpose. Also the case of Anderson v. Ripley County, 181 Mo. 46, which followed the doctrine of Book v. Earl, 87 Mo. 246, and held that, although the voters of a county had given their assent to the construction of a $20,000 county courthouse, a contract for extra work on such courthouse, the cost of which was in excess of the amount voted, and also in
The cases of Book v. Earl, 87 Mo. 246, and Anderson v. Ripley County, 181 Mo. 46, both related to lack of power under our Constitution to create debts in excess of current revenue for the construction of courthouses, or parts of courthouses, and, therefore, they are almost precisely in point here and entitled to great weight in leading us to a correct conclusion in the present case. In Book v. Earl, 87 Mo. l. c. 252, it was said that the unmistakable purpose of section 12 of article 10 of our Constitution is to force counties to transact their business on a cash basis, and not incur debts to be paid after the year in which such debts were created. The doctrine of that case has been cited with approval many times. [Black v. McGonigle, 103' Mo. l. c. 202; Barnard & Co. v. Knox County, 105 Mo. l. c. 386; State ex rel. v. Columbia, 111 Mo. l. c. 378; Andrew County ex rel. v. Schell, 135 Mo. l. c. 38; State ex rel. v. Payne, 151 Mo. l. c. 669; K. C., Ft. S. & M. Ry. Co. v. Thornton, 152 Mo. l. c. 573; State ex rel. v. Johnson, 162 Mo. l. c. 639; State ex rel. v. Wabash Ry. Co., 169 Mo. l. c. 574; Union Trust Co. v. Pagenstecher, 221 Mo. l. c. 130; State ex rel. v. Woodside, 254 Mo. l. c. 593.] This seems to be the only fair and logical construction of our organic law. The fact that the Constitution itself speaks in such plain terms renders an evasion of its words or intent impossible, however much we may wish to see relator and other municipalities similarly situated permitted to borrow money to make public improvements.
The law under which the instant bonds were issued being in conflict with a plain constitutional provision, neither the proceedings of the county court nor of the circuit court of Christian county were of sufficient potency to breathe vitality or validity into those obligations. Our first duty under our oaths is to support and enforce the organic law, and while we will resolve every
The $65,000 bonds sought to be registered purport to create a debt more than twice as large as the total income and revenue of Christian county for the year in which such bonds were issued; therefore, the respondent did not err in refusing to register and certify them, and our writ of mandamus must be denied. It is so ordered. .
Dissenting Opinion
(dissenting). — I have examined a copy of the bonds proposed for registration and also the record of the proceedings in the circuit court of Christian county, from which it is evident that the issue of bonds is spread over a period of ten years and that the amounts payable thereon for each year does not exceed the indebtedness which the county may incur under the Constitution for each year of the entire series; [Lamar Water & E. L. Co. v. City of Lamar, 128 Mo. l. c. 222.]
Such a contract when made for ■ necessaries, as county jails, poorhouses and court houses, and providing for payment of the obligations thus created, from year to year, so that no payment on any intervening year shall exceed the constitutional limit of indebtedness for that year, does not violate the Constitution of this State, nor others wh re the organic law is similar. [1 Dill, on Mun. Cor. (4 Ed.), sec. 136a.]
I therefore dissent to the majority opinion in this case.