272 Mo. 600 | Mo. | 1917
This is a proceeding in mandamus to require the respondent as State Auditor to register an issue of two-hundred thousand dollars refunding bonds of Wayne County.
These bonds were issued under the provisions of Section 1249, Revised Statutes 1909, authorizing the funding of bonded or judgment indebtedness. The original bonds had been issued by virtue of Sections 10520 to 10525, Revised Statutes 1909, which grant the power and define the method to be pursued by the people of a county and their administrative agent,- the county court, in the issuance of bonds for the improvement of public roads. One-half of the aggregate amount of this original issue was in the denomination of one-hundred dollars each and bore interest at the rate of four and one-half per cent per annum, payable annually, and to mature within twenty years after their date, subject' to prior payment at any time within twenty years upon the call of the county, as provided for in Section 10522, Revised Statutes 1909. These sections were repealed by an act approved April 9, 1917 (Laws 1917, p. 442), and statutes kindred in their nature and conferring similar powers were enacted in lieu thereof. [Secs. 83, 84 and 85, Laws 1917, p. 470.]
The preliminary steps necessary to authorize the issuance of the original bonds in conformity with the
At the time of- the execution and before the delivery of the original bonds to the purchaser, the county court levied a tax uipon the taxable property of the - county in an amount sufficient to pay the interest and a portion of the principal each year upon said bonds, in conformity with the conditions of their issuance.
Afterwards on June 10, 1917, the county court called for the payment of all of said bonds and in order to provide funds necessary to pay off and retire the same prepared and executed, under the provisions of said Section 1249, refunding bonds in the aggregate sum of two-hundred thousand dollars, each of the face value of one-thousand dollars, dated May 1, 1917, and bearing interest at the rate of four and one-fourth per cent per- annum, or one-fourth of one per cent less than-the interest required to be paid on the original bonds, which interest was made payable' semi-annually, the bonds maturing in the year 1922 and serially thereafter to the year 1937. These refunding bonds were presented to the respondent as Auditor of the State in compliance with the requirements of the law in this behalf and their registration was by him refused. Hence this proceeding.
That the steps taken antecedent to the issue of the original bonds were in conformity with the law then in force is conceded. Bespondent contends, however, that the writ, should not issue for the following reasons: (1) that the statute under which the original bonds were issued was expressly repealed before such bonds were actually issued, registered and negotiated; (2) that Section 1249 under which it is sought to refund these bonds is unconstitutional; and (3), if not unconstitutional, the attempt at refunding is not within the intent and purpose of the statute and as a consequence is unauthorized.
The reasoning above employed and the conclusion deduced therefrom are based upon the assumption that the repealing law left no operative statute authorizing county courts to issue bonds for road, purposes and that the extension of this power in this case was'due solely to the modifying effect of the general saving sections. For the reasons stated we deem the conclusion reached irrefutable; but the assumption is not in accord with the fact and is proper only to illustrate the continuing power of the former law in the-absence of a like subsequent enactment. The facts are that simultaneously with the repeal of - Sections 10520-10525 another statute (Secs. 83, 84, 85, Laws 1917, p. 470) was
The statute in this regard is broad and sweeping, and indicates generally' the legislative intent that outstanding bonds may be refunded at any time after their issue. The language of Section 1249 is as follows-:
,. . Nothing in Sections ’ 1249 to 1251, inclusive, shall be so construed as prohibiting any County . . . that now has or may hereafter have a bonded or judgment debt . . . from funding or refunding such debt without the submission of the question to a popular vote, whenever such funding or refunding can be done at a lower rate of interest than the debts so funded or refunded bore . .
If the refunding bonds had been sold at a lower rate of interest, to any investor other than the purchaser of the original bonds, the question raised by the respondent could not have appeared in this record. Under such circumstances, it would have been the duty of the county court to accept the offer of such subsequent investor in order to secure for the county a lower rate of interest.
If the purchaser of the original bonds be denied the privilege of purchasing the refunding bonds, he is penalized for purchasing the original bonds as being the only one not entitled to purchase the refunding bonds, which would be contrary to public policy.
If the purchaser of the original bonds be denied the privilege of purchasing the refunding bonds, then the statute (Section 1249 ) must necessarily be construed as not applicable to county road bonds. This would result in a construction of. the statute not authorized by its language or intent.
If county road bonds may not be refunded under Section 1249, in accordance with its unqualified conditions, then such bonds are stripped of one of the most important and valuable characteristics of all municipal bonds.
The foregoing alternative reasoning which in the main is that of relators, presents plausible grounds in support of the action of the county court in refunding these bonds. Under the provisions of Section 1249, however, the court is authorized at any time to take such action whenever it will effect a reduction in the rate of interest. This was accomplished by the action of the court in this case, which, in our opinion, was not only within the spirit and purpose of Section 1249, but was in conformity with its letter. There is, therefore, no merit in this contention. From all of the foregoing we are of the opinion that the peremptory writ of mandamus should issue herein, and it is so ordered.