The State ex rel. City of Chillicothe v. Wilder

• Citation: 98 S.W. 465,200 Mo. 97
• Parties: THE STATE ex rel. CITY OF CHILLICOTHE v. WILDER, Auditor
• Decision Date: 18 December 1906
• Court: United States State Supreme Court of Missouri

98 S.W. 465

200 Mo. 97

THE STATE ex rel. CITY OF CHILLICOTHE v. WILDER, Auditor

Supreme Court of Missouri

December 18, 1906

Peremptory writ denied.

Frank W. Ashby for relator; Oscar L. Smith of counsel.

(1) The bond issue in this case is authorized by sections 6273 to 6278, inclusive, Revised Statutes 1899. (2) The notice of election required by section 6276 was duly given in due form and time. Kellogg v. Carrico, 47 Mo. 157; Bank v. Stumpf, 73 Mo. 311; Nishnabotna Drainage District v. Campbell, 154 Mo. 151; In re Woolridge, 30 Mo.App. 612; State ex rel. v. Allen, 178 Mo. 555. (3) Two propositions cannot be coupled together and voted on at the same time, by the same ballot (State ex rel. v Allen, 186 Mo. 673), but in passing on this question the court will look to the facts of the subject-matter. Here the purpose in view is the construction of a waterworks and electric light plant, at a cost of $ 100,000, to furnish the city and its inhabitants with water and light. State ex rel. v. Allen, 178 Mo. 555; State ex rel. v Allen, 183 Mo. 283; Electric Co. v. City of Newton, 42 F. 723; Senmour v. City of Tacoma, 32 P. 1077; Truelsen v. Mayor of Duluth, 63 N.W 714; Hubbard v. Woodson, 32 A. 802. The purpose of the city and the proposition submitted to the voters being but one plant, it was unnecessary to say how much money would be used in the construction of any particular part thereof. (4) The court will consider section 6275, sections 12 and 12a of article 10 together, in its consideration of this case. If it be possible, will harmonize them, even though it be necessary to depart from a literal construction. State v. Heman, 70 Mo. 441; State v. King, 44 Mo. 283; St. Louis v. Lane, 110 Mo. 255; State ex rel. v. Slover, 126 Mo. 652; State ex rel. v. County Court, 128 Mo. 428. Words may sometimes be stricken out of a statute in constructing it in order to harmonize its entire provisions. Bingham v. Birmingham, 103 Mo. 345; State v. Acuff, 6 Mo. 54. The construction of a constitutional amendment must not be so strict or technical as to defeat the evident object and purpose of its creation. State ex rel. v. Allen, 183 Mo. 283. (5) By section 8 of ordinance 203 a levy of $ 4,000 per annum is made to pay interest on said bonds as it falls due, and also a levy of $ 5,000 per annum is made to constitute a sinking fund to pay the principal of said bonds as they mature, which is all that is required by the Constitution, nor was it necessary to submit the matter to the electors to be voted on at the election. Benton v. Scott, 168 Mo. 378; State ex rel. v. Allen, 183 Mo. 283; Evans v. McFarland, 186 Mo. 703.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for respondent; Louis A. Chapman and Scott J. Miller of counsel.

(1) Under the law of this State two propositions cannot be united in one submission so as to have one expression of the vote answer both propositions. In this case there should have been one submission for the erection of a waterworks plant and one submission for the erection of an electric light plant, with the specified amount of money to be used in the construction of each. They are separate public utilities and so recognized by the law, and should have been submitted separately. State ex rel. v. Allen, 186 Mo. 673; State ex rel. v. Allen, 178 Mo. 55; McBride v. City of Montesano, 7 Wash. 69; Elyria Gas and Water Co. v. City of Elyria, 57 Ohio St. 374; Truelson v. City of Duluth, 61 Minn. 48; Metcalf v. City of Seattle, 25 P. 1010; Petros v. City of Vancouver, 13 Wash. 423; Gray v. Mount, 45 Iowa 591; City of Denver v. Haynes, 63 P. 311; 21 Am. and Eng. Ency. Law (2 Ed.), 47. (2) It is admitted that the amount of the existing indebtedness of the city is $ 25,000; that the assessed valuation is $ 1,519,139.15, and that five per cent of the latter amount less said existing indebtedness is $ 50,956.95, the amount of indebtedness authorized by section 12, article 10, of the Constitution. As the amount of indebtedness voted and for which bonds were issued is $ 100,000, it follows that section 12a, article 10, of the Constitution, as well as said section 12, must be looked to for authority for incurring such indebtedness. The ordinance under consideration provides that such indebtedness shall be incurred and bonds issued for the purpose of erecting, constructing, maintaining and operating a waterworks and electric light plant. Section 12a of article 10 authorizes cities of the class named to become indebted in a larger amount than specified in section 12 of article 10, not exceeding an additional five per cent for the purpose of purchasing or constructing waterworks, electric or other light plants. But it does not authorize such indebtedness for the purpose of maintaining or operating such plants. The proposition submitted to the voters by the ordinance under which the bonds under consideration were issued was, therefore, to incur an indebtedness for a purpose not authorized by the Constitution. Sec. 12, art. 10, Constitution; sec. 12a, art. 10, Constitution; Laws 1903, p. 94; Merrill v. Town of Monticello, 138 U.S. 673; Harris on Municipal Bonds, note 181, p. 58; State ex rel. v. Allen, 186 Mo. 673; 1 Dillon on Municipal Corp., sec. 89; City ex rel. v. Eddy, 123 Mo. 559; 2 Smith on Municipal Corp., secs. 861-2; City of Columbia v. Wilder, 94 S.W. 495; 5 Words and Phrases Judicially Defined, p. 4280; Morehead v. Railroad, 17 O. 353. (3) The notice of the special election called for the purpose of voting on the proposition to become indebted, as provided in said ordinance, was not in conformity with the law. The fifteen days' notice required when published in a daily paper must be the first fifteen days previous to the election -- the last insertion in the daily paper being the last issue of the paper previous to the election. Stine v. Wilkson, 10 Mo. 96; Kellogg v. Carrico, 47 Mo. 159; Bank v. Stumpf, 73 Mo. 315; State ex rel. v. Martin, 83 Mo.App. 55.

OPINION

In Banc

Mandamus.

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 held 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 Constitution, a daily newspaper, published in the city of Chillicothe, Missouri." It is conceded that the notice of election provided for by said ordinance was published in the Chillicothe 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...