State ex rel. City of Chillicothe v. Wilder, 200 Mo. 97

State ex rel. City of Chillicothe v. Wilder

200 Mo. 97 | Mo. | 1906

GANTT, J.

This is an original proceeding commenced in this court to obtain a writ of mandamus against the State Auditor to require him to register one hundred bonds of the denomination of one thousand dollars each, issued by the city of Chillicothe.

The facts are all agreed upon. The city of Chillicothe is a municipal corporation having a special charter and containing a population of about eight thousand inhabitants, according to the last previous assessment before the issuing of bonds. The assessed value of the taxable property in said city was $1,513,139.15. At the present time, and at the time of holding the special election, authorizing the issue of said bonds, the bonded indebtedness of the city was twenty thousand dollars. On January 2, 1906, the council of said city passed and approved an ordinance, number 198, having for its purpose the calling of a special election, to test the sense of the voters of the city upon a proposition to issue bonds in the sum of one hundred thousand dollars, in order to provide “a waterworks and electric light plant. ’ ’ The notice of the election was published in the Chillicothe Constitution, a daily newspaper published in the city, for seventeen consecutive issues of said paper previous to the election which was *102held on the 29th of January, 1906. At said election 842 votes were cast in favor of said issuing of bonds and 182 against it. This result was formally declared by an ordinance number 202 passed and approved on the 5th of February, 1906. On the 23rd of February, 1906, ordinance 203 was passed and approved authorizing the city authorities to issue said bonds, and in pursuance thereto bonds were issued and signed by the proper authorities, with the corporate seal of the city thereon. These bonds were presented with the necessary fees to the Auditor for registration, and he refused to register them on the grounds, first, because the notice of the election was not published fifteen consecutive days immediately previous to the election, and second, because the proposition voted on contained two propositions, one a waterworks plant and the other an electric light plant, whereby it was impossible for any voter to vote for one and against the other if he desired to do so, and for the further reason, that the ordinance did not designate what amount of money was to be used to provide a waterworks plant, nor what part was to be used for the electric light plant, and, third, because section 12a of article 10 of the Constitution of Missouri only authorizes the city to increase its debt for the purpose of “purchasing or constructing waterworks, electric and other light plants, ’ ’ and not for the purpose of “erecting, constructing, maintaining and operating the same, ” as provided by the ordinance number 198 passed and approved by the city of Chillicothe, January 2, 1906, and; fourth, because no provision was made by the ordinance for the per cent of additional taxation to pay the interest or constitute a sinking- fund to pay the principal of said bonds as they mature, nor - was the matter submitted to the voters.

I. The ordinance itself provides that “At least fifteen days’ previous notice shall be given of the election herein called for by publication in the Chillicothe *103Constitution, a daily newspaper, published in the city of Chillieothe, Missouri.” It is conceded that the notice of election provided for by said ordinance was published in the Chillieothe Constitution, a daily newspaper, for seventeen consecutive issues of said paper, beginning with the issue dated the 6th of January, 1906, and continuing from day to day until and including the 25th day of January, 1906, and that the election was held on the 29th day of January, 1906. Counsel for the respondent, the State Auditor, makes the point that this publication was insufficient because it did not continue up to and including the day of the election. Upon the authority of German Bank v. Stunrpf, 73 Mo. 311, and State ex rel. v. Allen, 178 Mo. 555, we hold that the notice was published fifteen days before the said election, and that the failure to publish it on the three days before the election did not render it bad.

II. As for the second ground for refusing to register the bonds, to-wit, that it contained two propositions, one for a waterworks plant and the other for an electric light plant, so that the voters were compelled to vote for the whole proposition and could not vote for one against the other, we think that a reading of the ordinance and the notice of election indicates that the bonds were to be issued for one plant only, to-wit, “a waterworks and electric light plant,” and that the ordinance and the notice of election in this case do not violate the rule announced by this court in State ex rel. Bethany v. Allen, 186 Mo. 673. We think it was the clearly-expressed purpose in this case to erect one plant, on one site, to be conducted by one management and in this manner save the expense of another plant. In State ex rel. Columbia v. Allen, 183 Mo. 283, the ordinance was to purchase an existing waterworks and light plant and provide for its extension, and it was held not to be a double but a single proposition. We know of no reason, and none is suggested, why one plant, at least so *104far as the power and machinery are concerned, could not be made available, and we think such was the intention- and purpose of the council in passing this ordinance and that the objection of the Auditor to the bonds on this ground cannot be sustained. Upon a new submission of the proposition, however, it should be for “a combined waterworks and electric light plant.” [Hubbard v. Woodsum, 32 Atl. 802; Truelsen v. Mayor of Duluth, 63 N. W. 714.]

III. The ordinance provided for an election to test the sense of the voters of said city upon a proposition of increasing the indebtedness of the city in the sum of one hundred thousand dollars by issuing bonds to that amount to be used “for the purpose of erecting, constructing and maintaining and operating a waterworks and electric light plant.” By reference to the assessed valuation of the city and taking into account the existing indebtedness of twenty thousand dollars, it is perfectly obvious that this- one hundred thousand dollars of bonds would largely exceed five per cent of the’taxable property, and under section 12 of article 10 of the Constitution, would be in excess of the debt-making power of the city, and we can look only to section 12a of article 10 of the Constitution, adopted at the general election in November, 1902, for authority for the issuance of bonds by the city in excess of five per cent of its assessed valuation. Section 12a of article 10 of the Constitution provides that “Any city in this State containing not more than thirty thousand nor less than two thousand inhabitants, may, with assent of two-thirds of the voters thereof, voting at an election to be held for that purpose, be allowed to become indebted in a larger amount than specified in section 12 of article 10 of the Constitution of this State, not exceeding an additional five per centum on the value of the taxable property therein, for the purpose of purchasing or constructing waterworks, electric or other light *105plants, to be owned exclusively by tbe city so purchasing or constructing the same.” By an act of the Legislature approved February 17, 1903, a new section was added to article 13 of chapter 91 of the Revised Statutes of 1899, to be known as section 6350a, which section is in the same words of section 12a, so that all question of the self-enforcement of section 12a of the Constitution is out of the way. Both section 12a, of the Constitution and section 6350a, Revised Statutes 1899, limit the powers of the cities therein named to incur the additional five per cent indebtedness to the purpose of “purchasing or constructing waterworks, electric or other light plants.” No power is given said municipality to issue bonds for the purpose of maintaining and operating said waterworks, electric or. other light plants. But the ordinance in this case under which these bonds were issued provides upon its face that the money raised from the sale of this one hundred thousand dollars of bonds, shall be “used for the purpose of erecting, constructing, maintaining and operating a waterworks and .electric light plant,” thus exceeding the power granted by the constitutional amendment of 1902, and the statute enacted in 1903, in pursuance thereof. It will thus be seen that there is no express authority in the organic law or the statute of this State for cities of two thousand and not over thirty thousand inhabitants incurring an indebtedness in excess of five per cent of their assessed valuation for the purpose of maintaining and operating waterworks and electric light plants. It is a well-settled law of this State that municipal corporations possess and can exercise only such powers as are granted in express words, or those necessarily incident to or implied in the powers expressly granted. [City of Nevada to use v. Eddy, 123 Mo. l. c. 557.] We do not think it can be reasonably maintained that the power to maintain and operate waterworks is necessarily incident to or implied in the *106power to purchase or construct waterworks or electric light plants; on the contrary, we think it was the purpose of the people in conferring this power upon, cities of the population named to acquire waterworks and electric light plants which should he self-sustaining. The word “maintain” does not mean “to provide or construct,” but to keep up and preserve, and the word “operate” means to put into or continue in operation or activity. These expressions have a distinct signification from the words “purchase or construct.” This court has already ruled in State ex rel. Columbia v. Wilder, 197 Mo. 1, in, construing section 12a of article 10 of the Constitution, that bonds issued for the purpose of building a sewer did not fall within the purview of this section which permits the additional five per cent indebtedness to be incurred for the sole purpose of purchasing or constructing waterworks, electric or other light plants to be owned exclusively by the city. Accordingly we think that the ordinance in providing for the issuing of these bonds, in so far as it provided for maintaining and operating'the plant, was without authority of law and in excess of the grant of the.Constitution and the statute enacted in pursuance of it. The proposition not being a severable one, it follows that the bonds were issued without authority of law and the Auditor properly refused to register the same and the peremptory writ of mandamus must be and is denied.

All concur.