Church v. Hadley

• Decision Date: 01 March 1912
• Citation: 145 S.W. 8,240 Mo. 680
• Parties: HORACE B. CHURCH, JR., Appellant, v. HERBERT S. HADLEY et al
• Court: Missouri Supreme Court

145 S.W. 8

240 Mo. 680

HORACE B. CHURCH, JR., Appellant, v. HERBERT S. HADLEY et al

Supreme Court of Missouri

March 1, 1912

Appeal from Cole Circuit Court. -- Hon. John M. Williams, Judge.

Affirmed.

W. C Irwin and Silver & Dumm for appellant.

(1) The acts of the Forty-sixth General Assembly, approved March 16 1911, and March 24, 1911, and the method therein adopted for the issuance of State bonds to create a fund for the building of a new State capitol, were not authorized or warranted by the provisions of section 44, article 4 of the State Constitution. The destruction of the State capitol by fire did not create an emergency within the meaning of the Constitution authorizing the creating of the State liability and the issuance of the bonds in question in this proceeding. The Act of March 16, 1911, does not recite that there existed any casual or other deficiency of the State revenue rendering necessary the invoking of the special means provided in section 44, article 4 for raising additional State revenue. The power to so raise revenue as provided in the constitutional provision under consideration is a special and limited one, and is to be strictly construed.

When invoked the facts authorizing its exercise should clearly and fully appear, and the same not so appearing in this case, the two acts of the Forty-sixth General Assembly, supra, and under consideration, were unauthorized. Being so unauthorized because not warranted by the Constitution, the bonds the defendants purpose to issue would have no validity or sanction in law, and their issuance and sale should be permanently enjoined and restrained as asked by appellant. (2) The payment of a commission to agents or brokers for their services in selling the bonds is unauthorized and contrary to law, that is, to the express mandate of the act of the Forty-sixth General Assembly approved March 16, 1911 providing for their issuance and sale. That act expressly provides that the bonds shall be sold by the Board of Fund Commissioners, "but for not less than par." The payment out of the proceeds of the sale of the bonds of a broker's commission for services in connection with their sale would be an evasion of the requirement of said act and a violation both of its terms and spirit. The act evidently contemplates and in fact expressly provides that the entire proceeds of such sale or sales shall be paid into the "capitol Building Fund," "to be applied exclusively for the purpose of building a new State capitol at the present seat of government, including the furnishing and other equipment of said building and the purchase by the State of additional capitol premises adjoining those now owned by the State." The General Assembly could undoubtedly make an appropriation out of the general revenues of the State to pay such broker's commission if the General Assembly should deem the same proper and necessary but the payment of such commission directly out of the proceeds of the sale of the bonds would to that extent reduce and diminish the capitol building fund, and is manifestly contrary to the intent and purpose of the General Assembly as well as to the language and terms of the act. This court has ruled that a court of equity will not be permitted to accomplish indirectly what the law will not permit to be done directly. Stowe v. Stowe, 140 Mo. 594.

Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General for respondent.

(1) The issuance of the State capitol bonds was duly authorized and they are in all respects valid. a. The decision of the Legislature that this occurrence constituted an unforeseen emergency within the meaning of the constitutional clause is conclusive and cannot be reviewed, especially after such decision has been concurred in by more than two-thirds of the people, that is, by "the common sense of the country." b. If the first proposition is incorrect, and this is a judicial question to be judicially determined without regard to the legislative assertion thereon, then, as a matter of fact, the destruction of the capitol building was such an occurrence as should be so judicially determined. An "emergency" is defined as a sudden or unexpected happening, an unforeseen occurrence or condition. Century Dictionary; Sheehan v. New York, 75 N.Y.S. 803; Webster's Dictionary; People v. Board of Supervisors, 21 Ill.App. 274. The definition, when applied to the term as here used, necessarily involves the idea of a decision as to whether immediate action was necessary, and whether delay would be detrimental to the public interests. These are wholly questions of public policy to be determined by the Legislature. Stevens v. United States, 2 Ct. Cl. 95; U. S. v. Speed, 75 U.S 77 (Wall.) ; In re Application of Shelton St. Ry. Co., 69 Conn. 628. In the Matter of Wm. A. Fowler, 53 N.Y. 62; Park Comrs. v. Armstrong, 45 N.Y. 243; Aldrich v. Spears, 101 Mo. 406; State v. Baird, 98 Mo. 219; Freeman v. Thompson, 53 Mo. 192; Bridge Co. v. Stone, 174 Mo. 22; State ex rel. v. Thomas, 183 Mo. 229; Cooper v. Hunt, 103 Mo.App. 16; Baker v. United States, 3 Ct. Cl. 343; Cobb v. United States, 9 Ct. Cl. 291. According to section 56, article 4, section 1, article 5, sections 9 and 10, article 6, capitol buildings are required to be maintained for the use and benefit of State officers and the public, and the court will judicially notice that such buildings are indispensably necessary for the administration of public affairs. The Legislature, having declared that it was "for the good and welfare of the commonwealth, and for the government and ordering thereof, and of the subjects of the same," that immediate steps be taken toward building this public necessity, it is not for the court to declare otherwise. Munn v. Illinois, 94 U.S. 113; State v. Swaggerty, 203 Mo. 527; State ex rel. v. Hayes, 49 Mo. 607; County v. Griswold, 58 Mo. 192; Slack v. Jacobs, 8 W.Va. 612. This legislative decision that such action was necessary and urgent is further fortified by the concurrence of the people, and the law regards as necessary that which "the common sense of the country" so regards. Commonwealth v. Railroad, 801 Ky. 296; Commonwealth v. Nesbitt, 34 Pa. 409. If this question were for judicial determination, without regard to any legislative assertion thereon, the court could but declare that this event constituted an unforeseen emergency. Viterbo v. Friedlander, 120 U.S. 707; People v. Comrs., 21 Ill.App. 271; Sheehan v. City, 75 N.Y.S. 802. (2) The payment of a reasonable compensation to extraneous agencies for effecting a sale or negotiation of said bonds is authorized. The petition recites that, although the sale of the bonds has been thoroughly advertised, both in and out of the State, defendants have been and will be unable to dispose of same at par except with the assistance of extraneous financial agencies employed and paid therefor. The authority to do this is not conferred in express terms, but the act which was passed by the Legislature and ratified by the people, contains the following provisions: "Said bonds . . . shall be sold to the best advantage by the board, and for not less than par." At the same time this act was passed and ordered submitted to the people, a companion measure was passed to be effective upon the ratification of the one first named. This act provided a method and machinery for the construction of a new capitol, and contained the following clause: "Said proceeds are hereby appropriated to the construction of the State capitol referred to in this act . . . and to otherwise carrying out its purposes and provisions, and also the purposes and provisions of the act . . . to be ratified by the voters of this State." In addition to this, the act of the Legislature ordering the special election and submission of the bond question, contains this clause: "Emergency -- that the recent destruction by fire of the State capitol of this State, and the consequent necessity for the building of a new State capitol without delay to replace the former structure, creates an emergency for the taking effect of this act immediately on its passage and approval." From these provisions we deduce the following: a. That the Legislature and the people have ordained that for the public welfare the new capitol shall be constructed with all possible speed and without delay. b. That to the accomplishment of this end the sale of bonds to the extent of three and a half million dollars is indispensably necessary. c. That defendants are expressly charged with the duty of selling these bonds and securing this necessary fund without delay. d. That they are required to do whatever is reasonably necessary to sell the bonds "to the best advantage," and, in doing this, their discretion is subject to but one limitation, viz.: that same shall not be sold at less than par. Upon these express powers and mandatory duties, and the averment in the petition that defendants have been and will be unable to comply therewith without the assistance alluded to, we unhesitatingly assert this incidental power is one of necessary implication. The rule by which the authority of officers to make contracts is determined is well settled, and is, that where there is an express grant of power to them it carries with it by necessary implication every other power needful and proper to the execution of the power expressly granted. 23 Am. & Eng. Ency. Law 364, 365; Sutherland's Stat. Const., secs. 341, 343, 344; 2 Beach, Pub. Corps., secs. 3 and 14; State ex rel. v. Perkins, 139 Mo. 118; State ex rel. v. Gates, 67 Mo. 143; Edwards v. Thomas, 64 Mo. 468. That there is a clear distinction between, on the one hand, a sale at par with the payment of the selling agent's commission out of the proceeds, and, on the other...