City of Cheyenne v. State ex rel. E. H. Rollins & Sons

• Decision Date: 26 June 1908
• Citation: 17 Wyo. 90,96 P. 244
• Parties: CITY OF CHEYENNE ET AL. v. STATE EX REL. E. H. ROLLINS & SONS
• Court: Wyoming Supreme Court

96 P. 244

17 Wyo. 90

CITY OF CHEYENNE ET AL. v. STATE EX REL. E. H. ROLLINS & SONS

Supreme Court of Wyoming

June 26, 1908

ERROR to the District Court, Laramie County; HON. RODERICK N MATSON, Judge.

Mandamus to require the issuance to the relator of certain city bonds. The material facts are stated in the opinion.

Judgment affirmed.

William A. Riner, City Attorney, for the plaintiffs in error, cited Hillsborough County v. Henderson, 45 Fla. 356.

C. W Burdick, Herbert V. Lacey, and John W. Lacey, for defendant in error.

The only authority cited by the City and its officers in the court below, is the case of Hillsborough v Henderson, 45 Fla. 356. The Florida statute requires that the notice shall "determine" the rate of interest. Our statute is that it shall "specify" the rate. The Florida case, therefore, seems fairly in point, provided the word "determine" is identical with the word "specify." We do not contend that there is any great difference between these two words. Whatever difference there is in strength between them is on the side of "determine," because that word requires the final exercise of all judgment and discretion somewhat more fully than the word "specify." But for the purposes of this case the Florida case will be discussed as though it were upon our exact statute.

That case cites a number of cases, but not one of them upon the question here involved. They are all upon failures to observe provisions of a very different kind in the statute conferring authority to bond. Not only so, but in each of the cases cited the failure was of a matter which was substantial in character and calculated to affect the election. For example, in State v. School District, 15 Mont. 133, nothing was said in the notice concerning the rate of interest, the time when the bonds were payable, or the time when they were redeemable, although the statute required each of these things to be stated. In a case cited from New Hampshire, the notice did not designate which of two railroads should be the beneficiary of the aid to be donated, though the statute required the beneficiary to be designated. Here again the matter was substantial. In the case of Smith v. Dublin, (Ga.) 39 S.E. 327, the notice did not specify the purpose for which the funds should be used, although the statute required that it should specify the purpose. In the case of State v. Roggen, (Neb.) 34 N.W. 109, the donee of the aid voted was not designated. That the question arising under that case was entirely different from the question which arises here is made even more apparent by the decision of the same court in the case of Bank v. Omaha, hereafter cited. In Elyria G. & W. Co. v. Elyria, (57 O. St.) 49 N.E. 535, two different propositions, viz.: to purchase water works and to build new ones, were submitted together, and this was held invalid because the law required different proceedings for each, and for the further reason that the notice did not give the voter the opportunity to vote for one of the propositions and against the other if he cared to do so, and the law required that this opportunity should be afforded. Again the Florida case is very much weakened by the fact that the Legislature of that State found it necessary to overrule the decision by passing an act legalizing the bonds which were the subject of the controversy in that case. (Givens v. Hillsborough Co., (Fla.) 35 So. 88.)

Many states, and among them Florida, hold that the constitution of the state and the legislation manifest a clear and definite policy to discountenance municipal bonding, and on this ground the municipality is held to the very strictest compliance with all of the requirements of the statute. The tendency in recent years in most of the states has been in the direction of requiring only substantial compliance, especially where the objects to be accomplished by the indebtedness are favorites of the law. By our State Constitution the matter of providing water for municipal corporations and incurring indebtedness therefor is favored and not at all discountenanced, and the right to bond for this special purpose is taken out of the usual limitations. (Const., Art. 13, Sec. 5; Art. 16, Sec. 5.) This same favor to this particular purpose is shown by the legislation of the State. (Rev. Stat. 1899, Sec. 1735, par. 2; Secs. 1737-1742.)

The very great weight of authority even where the debt is for matters less favored than in the case at bar, is to the effect that not exceeding a stated sum, or not exceeding a stated rate is a designation of the amount in the one case or the rate in the other. (Knight v. West Union, (W. Va.) 32 S.E. 163; Bank v. Omaha, (Neb.) 18 N.W. 63; Board v. Tollman, 145 F. 753, 771.)

In the case at bar, under the authorities cited, if the notice had stated definitely the rate 5 per cent without the words "not exceeding," not only would it have given to the council and the officers of the City authority to contract at a less rate, but it would have devolved upon those officers the duty to contract at the less rate. $ 160,000.00 was to be raised by the bonds. The officers could not, therefore, reduce the rate of interest to such extent as would prevent obtaining the full face of the bonds. And this is again made clear by Section 1706 which prevents the selling of the bonds at less than par. But not only would the City officers have been authorized by the fixed rate of 5 per cent in the notice to contract at a less rate if they could, but it would have been a clear duty so to contract at the less rate. Manifestly, therefore, the placing the words "not exceeding" in the notice which the law places there, whether expressed or not, cannot be held to make the notice void. (Lumberton v. Nuveen, (N. C.) 56 S.E. 940.)

POTTER, CHIEF JUSTICE. BEARD, J., and SCOTT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

This is a suit in mandamus brought originally in the District Court of Laramie County to require the city of Cheyenne, its Mayor, Clerk and Treasurer, to issue and deliver to the relators, E. H. Rollins & Sons, a corporation, certain water works extension bonds to the amount of one hundred and sixty thousand ($ 160,000.00) dollars, bearing interest at the rate of five per cent per annum. The matter was heard in the district court upon a demurrer to the petition and the same was overruled, whereupon, the defendants below, plaintiffs in error here, declining to plead further, a judgment was entered ordering that the alternative writ of mandamus which had been issued at the commencement of the suit should be made absolute, and directing the issuance and delivery to the relator of the bonds in question. From that judgment the case is brought to this court on error.

The assignments of error are: 1. That the court erred in overruling the demurrer of plaintiffs in error. 2. That the court erred in rendering judgment in favor of the defendant in error.

It is admitted that the petition filed in the district court sets forth all the facts necessary to a determination of the cause, and that the demurrer, therefore, raised every question to be presented in the case involving the validity of the bonds and the duty of the plaintiffs in error to issue and deliver them as prayed for. The relator is alleged to be a corporation duly organized and existing under the laws of the state of Maine and authorized to do business in this state, and especially authorized to buy and sell bonds or securities of the character of those here involved; that the City of Cheyenne is a duly constituted and chartered municipal corporation of this state; that the other named defendants in the petition are the duly elected, qualified and acting Mayor, Clerk and Treasurer, respectively, of the said city; that for the proper protection of the said city and its inhabitants, the necessary construction and additions to the water works and water storage system of said city requires the expenditure of a sum not less than one hundred and sixty thousand ($ 160,000.00) dollars; that an ordinance of said city was duly and regularly passed by the city council on the 17th day of September, 1907, and approved by the mayor on September 19, 1907, reciting the necessity for borrowing money for making extensions of the system of water works of said city, and the statutory authority given to the said city to borrow moneys for such purposes, and ordaining:

"That at the annual election to be held in the City of Cheyenne on the first Tuesday after the first Monday in November, A. D. 1907, there shall be submitted to a vote of the qualified electors of said city, a proposition to issue the coupon bonds of the said city in the amount of one hundred and sixty thousand dollars ($ 160,000.00) for the purpose of providing funds to extend the system of waterworks of said city, said bonds to be issued in accordance with the provisions of Section 1705 of the Revised Statutes of 1899, and to bear interest at a rate not exceeding five per cent per annum."

It is further alleged in the petition that after the passage of said ordinance, and at the proper time and times, the city caused a notice of said annual election to be duly and properly published, and in proper and sufficient newspapers, which said notice contained the following:

"Notice is also given that at said annual election there will be submitted to the qualified electors of said city the proposition to issue the coupon bonds of said city in the amount of one hundred and sixty thousand dollars ($ 160,000.00) for the purpose of providing funds to extend the water works of said city; said bonds, if voted, to be issued in accordance with the provisions of Section 1705 of the Revised Statutes of Wyoming, 1899, and to bear interest at a rate not exceeding five per...