197 Mo. 1 | Mo. | 1906
Lead Opinion
This is an original proceeding in this court to obtain a peremptory writ of mandamus compelling the respondent, the State Auditor, to register certain sewer bonds to the amount of $10,000, which the city of Columbia has presented to him for registration, and which he has refused to register.
The undisputed facts are that the city of Columbia is a municipal corporation, organized under the general laws of the State as a city of the third class, and has a population of nearly eight thousand. According to the last previous assessment, the assessed valuation of the taxable property in said city amounts to $2,462,-050. At the present time, and at the time of holding a special election, hereinafter referred to, the bonded indebtedness of said city was $140,700'. Of this indebtedness bonds to the amount of $110,000 were issued in payment for water works and electric light plant, which was to be owned by said city. All of said water and light bonds were issued on April 1,1904, except $10,000 worth, which were issued October 2, 1905.
On July 21, 1905, an ordinance of the city was passed and approved having for its purpose the incurring of an additional bonded debt of $10,000 for the purpose of constructing sewers in the said city. The bonds were to mature in fifteen years, payable at the option
Section 12 of article 10 of the Constitution of Missouri, 1875, provides: “No county, city, town or 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; nor in cases requiring such assent shall any indebtedness be allowed to be incurred to an amount including existing indebtedness in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the assessment next before the last assessment for state and county purposes, previous to the incurring of such indebtedness: Provided, That with such assent any county may be allowed to become indebted to a larger amount for the erection of a courthouse or jail. And provided further, That any county, city, town, township, school district or other political corporation or subdivision of the State, incurring any indebtedness, requiring the assent of the voters as aforesaid, shall, before or at the time of doing so, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute
As the bonds which the Auditor refused to register were not issued for the purpose of constructing water works, electric or other light plant to be owned by the city, they do not fall within the provisions of section 12a. of the Constitution, so that the only question presented is whether the bonded indebtedness to the amount of $110,000, which was contracted in payment of the water and light plant in 1904, is to be included in determining what is the five per cent limit of said city’s indebtedness. It is insisted by the city that it should not be taken into account in determining the amount of its indebtedness at the time the bonds to the amount of $10,000 were voted and issued for the purpose of constructing sewers in the city. Including the $110,000 or bonded indebtedness, the total indebtedness of the city when the bonds which the city now seeks to have regis
This amendment referring as it does to the power of incurring indebtedness as provided in section 12 of article 10, is limited to the restriction specified in section 12 of article 10, save and except that for the specific purpose of acquiring waterworks and electric light plant, the city may incur a debt not exceeding ah additional five per centum on the value of the taxable property therein. And section 12 of article 10 of the Constitution expressly provides that in incurring any indebtedness in any manner or for any purpose for an amount exceeding in any year the income and revenue provided for such year, the indebtedness to be incurred shall not exceed five per cent on the value of the taxable property, including existing indebtedness. That the $110,000 in bonds issued in 1904 were an existing indebtedness at the time the bonds in question were voted and issued there can be no doubt whatever. Nor do we think when the two sections 12 and 12a are read together, there can be any less doubt that the additional
It is urged that the accidental fact that the city had already exceeded the five per cent limit before it undertook to incur this last $10,000 for bonds, ought not to operate against it since it could have avoided this collision with the Constitution by having first issued the sewer bonds and then voted the $110,000 for waterworks and electric bonds. But as we regard it, the question is simply one of incurring a debt by the city in view of the constitutional restrictions imposed upon it, and we can find nowhere in section 12 or 12a or any other part of the Constitution any authority for making a discrimination in the character of the debts which make up the total of the municipality’s existing indebtedness when it seeks to incur an additional indebtedness. On the contrary as we read the Constitution the existing indebtedness includes any and all legal debts of the city. It was attempted to make such a distinction in Potter v. Douglas County, 87 Mo. 239, and it was made in that case, but that ease was repudiated in Barnard & Co. v. Knox County, 105 Mo. l. c. 391, in which it was held that the strong and comprehensive language of section 12 of article 10 of the Constitution admits of no distinction between debts created by law. And we add it does not permit the character of a particular indebtedness to exclude it from constituting a part of the existing indebtedness which must be included in estimating the five per cent limit.
We cannot assent to the proposition that the sole purpose of the amendment was to confer power to tax. On the contrary it was designed just as section 12 of article 10 of the Constitution was, to restrict the power
Dissenting Opinion
DISSENTING OPINION.
The city of Columbia sues for a writ of mandamus to require the State Auditor to register certain bonds which the city purposes to issue.
This is a city of the third class, having a taxable wealth, according to the assessment next before the last assessment, of $2,462,052. The indebtedness of the city already is $140,700, of which $110,000 is the amount of
The bonds were to mature in fifteen years payable at the option of the city in five years and to bear not more than five per cent interest. The proposition was submitted in due form to a vote of the people and received the assent of more than two thirds of the voters. Thereafter all proper proceedings were had by the city council and other officers, the bonds were prepared, signed and presented to the State Auditor to be registered, as required by section 5167, Revised Statutes 1899. Without going through the details it is sufficient to say that the record shows that all the requirements of the law to make these proposed bonds legal and valid have been complied with and they are legal and valid unless their amount added to the amount of the indebtedness the city already owes would make a sum beyond the limit the city is authorized to go in incurring indebtedness.
Section 12 of article 10 of our Constitution authorizes the city, with the assent of two-thirds of the voters, to. incur indebtedness to the limit of five per cent of the value of its taxable property, but forbids it to go beyond the limit. At the general election in November, 1902. the Constitution in that respect was amended by adding another section, 12a, the beginning of which is:
“Any city in this State containing not more than thirty thousand nor less than two thousand inhabitants, may, with the 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 twelve of article ten of the Constitution*12 . of this State, not exceeding an additional five per centum on the value of the taxable property therein, for the purpose of constructing waterworks, electric or other light plants, to be owned exclusively by the city,” etc.
In February, 1904, its indebtedness then being $38,-500, the city, availing itself of that amendment to the Constitution, instituted proceedings which resulted in its issuing its bonds to the amount of $110,000, for the purpose of buying and extending the waterworks and electric light plant within its limits, and those bonds are now outstanding, making, with the other indebtedness at the date of the present proceeding, the total debt of the city $140,700, which is in excess of five per cent of the value of the city’s taxable property.
Now it is suggested by the State Auditor that the limit of five per cent prescribed in section 12 of article 10 having been already reached and passed, and the authority given by the amendment of 1902, section 12a, to go beyond the first five per cent limit having been given only for the one purpose therein expressed, it cannot be exercised for any other purpose, and as these proposed bonds are not to be used for the purpose in that amendment expressed, they cannot be issued under that authority.
When we come to construe a clause in the Constitution we must treat it with the same liberality that we treat other written laws; we must not adhere so closely to the letter as to destroy the purpose, the purpose must be ascertained and given effect. [State ex rel. v. McGowan, 138 Mo. 193.] What was the purpose of this amendment? Under the original section 12, five per cent was the limit to cover indebtedness for any and all purposes, but experience having shown that when kept within that limit the cities of this class were unable to own waterworks and lighting plants adequate to their needs, the people amended the Constitution and gave such cities power to increase the tax rate by a levy of five per cent in addition to the five per cent formerly
Five per cent of the value of .the taxable property of this city is $123,102.50.
If the city of Columbia had, before it issued its $110,000 bonds for waterworks and lighting plants, taken the action it is now seeking to take and had issued its bonds for $10,000 for the purpose of constructing sewers, the $10,000 added to the then pre-existing debt would have made the total debt of the city $40,700’, or about one-third of the original five per cent limit, and if after the $10,000 sewer bonds had been issued the city had availed itself of the additional five per cent authorized by this amendment and had issued its water and light bonds to the amount that it did issue them, there would be no question of the validity of the sewer; bonds or the water bonds because all the indebtedness added together would be within the extended limits. It is thought, however, that because the waterworks bonds were issued first, that power is exhausted, and that is so if we take the water bonds into this account because counting those bonds the original five per cent limit has been passed and the bonds now to be issued are not for the purpose expressed in the amendment. But we do not think that the accidental fact that the water bonds were issued first will deprive the city of the privilege the amendment of 1902 was intended to confer. The purpose — the main purpose — the only purpose of the amendment of 1902 was to increase the taxing power of the cities embraced in its terms to enable them to own their waterworks and lighting plants; that is what the General Assembly had in mind when it
We construe section 12 and 12a of article 10 of the Constitution, taken together, to mean that when the amount of indebtedness that the city may incur under the terms of section 12 is to be estimated, the amount of its indebtedness incurred since the amendment and within the extra five per cent limit of section 12a, incurred “for the purpose of purchasing or constructing waterworks, electric or other light plants, to be owned exclusively by the city so purchasing or constructing the same,” is not to be taken into the estimate.
The city of Columbia has the lawful authority to issue the proposed $10,000 sewer bonds in question, has complied with the requirements of the law in such case made and provided, and is therefore entitled to have the bonds registered as required by section 5167, Revised Statutes 1899.
