Coffin v. Richards

• Decision Date: 18 December 1899
• Citation: 59 P. 562,6 Idaho 741
• Parties: COFFIN v. RICHARDS, MAYOR
• Court: Idaho Supreme Court

59 P. 562

6 Idaho 741

COFFIN v. RICHARDS, MAYOR

Supreme Court of Idaho

December 18, 1899

FUNDING BONDS-DESCRIPTION REQUIRED-SUBMISSION OF QUESTION TO ELECTORS.-Where it is proposed to call an election for the purpose of submitting to the electors of any town or city the question of issuing bonds for the funding of an existing indebtedness of such town or city, and the ordinance providing therefor does not describe the indebtedness sought to be funded, as prescribed by section 2 of the act of February 2, 1899, all proceedings thereunder are invalid.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Judgment affirmed, with costs.

C. C Cavanah, for Appellants.

The act governing the proceedings of the defendants in endeavoring to submit to the legal voters of Boise City, the proposition of funding the outstanding indebtedness of said city by the issue and sale of municipal funding bonds recites certain steps to be taken by the defendants. (Sess. Laws 1899, p 29.) We maintain that the provisions of the statute in question are merely directory, as it only prescribes the mode and manner to be pursued by the mayor and council when in presenting to the people the question of funding an outstanding indebtedness of said city. (Sutherland on Statutory Construction, 573; Reed v. Supervisors of Henry Co., 31 Gratt. 695; Packwood v. Kittitas Co., 15 Wash. 88, 55 Am. St. Rep. 875, 45 P. 640; Richards v Klickitat Co., 13 Wash. 509, 43 P. 647; Seymour v. City of Tacoma, 6 Wash. 427, 33 P. 1059; State ex rel. Mullen v. Doherty, 16 Wash. 382, 58 Am. St. Rep. 39, 47 P. 958; Brand v. Town of Lawrenceville, 104 Ga. 486, 30 S.E. 954; Derby & Co. v. City of Modesto, 104 Cal. 515, 38 P. 900; State ex rel. Bennett v. Barber, 4 Wyo. 56, 32 P. 14.) Affirmative words make a statute directory, and negative or exclusive words make it imperative. (Attorney General v. Baker, 9 Rich. Eq. 521.) The notice is generally required to specify the purpose to promote which the bonds are proposed to be issued. In designating this purpose, it is not essential to go into minute details. It is sufficient to state its general character, provided there is nothing in the statement tending to substantially mislead the voters. (People v. Counts, 89 Cal. 15, 26 P. 612; 6 Am. & Eng. Ency. of Law, 325; McCrary on Elections, 3d ed., sec. 190; State v. Van Camp, 36 Neb. 9, 91, 54 N.W. 119.)

N. M. Ruick, for Respondent.

The statute under which it is proposed to issue these bonds, and the only one authorizing an issue of bonds by a city "to provide for the funding, refunding, purchase and redemption of the outstanding indebtedness of such city," is the re-enacted statute found at page 29, Laws of 1899. The issue of municipal bonds is ordinarily authorized upon certain conditions being complied with. Such conditions may be imposed by constitutional provisions, by legislative act, or by the municipal authorities. Conditions imposed by the constitution or legislature must be strictly complied with. (15 Ency. of Law, 1271; Leavenworth etc. R. R. Co. v. Platte Co., 42 Mo. 171; Essex Co. R. Co. v. Lunenberg, 49 Vt. 143; Town of Eagle v. Kohn, 84 Ill. 292.) Compliance with all substantial or material conditions is essential before the bonds can be lawfully issued. (Harding v. Railroad Co., 65 Ill. 90; Dillon on Municipal Corporations, secs. 163, 164; Jackson v. Brush, 77 Ill. 59; Gaddis v. Richmond Co., 92 Ill. 119.) Such provisions are mandatory, and must be strictly followed. (Cooley's Constitutional Limitations, 88 et seq.; Sutherland on Statutory Construction, secs. 454-456; Endlich on Interpretation of Statutes, sec. 437 et seq.; Corbett v. Bradley, 7 Nev. 106; Reeve v. City of Oshkosh, 33 Wis. 477; State Prison Agt. v. Lathrop, 1 Mich. 438; Hoyt v. Saginaw, 19 Mich. 39, 2 Am. Rep. 76; People v. San Francisco, 36 Cal. 595; Dunbar v. Board, 5 Idaho 407, 49 P. 412.) That issue and sale of these bonds would be the incurring of indebtedness, and the statute under which it is proposed to issue them so treats it. (Laws 1899, p. 30, sec. 2, last clause; Bannock Co. v. Bunting, 4 Idaho 156 37 P. 279.) Notice must be given as required by statute, even where the object of the issuance of the bonds is to take up outstanding warrants bearing a higher rate of interest. (Duryee v. Friars, 18 Wash. 55, 50 P. 583.) The notice required by law must be given or the issue of the bonds will be enjoined. (15 Ency. of Law, 1276; George v. Township of Oxford, 16 Kan. 72; Harding v. Railroad Co., 65 Ill. 90; Bowen v. Mayor of Greenboro, 79 Ga. 709, 4 S.E. 159.)

HUSTON, C. J. Quarles and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

The plaintiff brings this action to enjoin the issuance of certain bonds authorized to be issued by the mayor and common council of Boise City under and by virtue of an act of the legislature of Idaho approved February 2, 1899. To the complaint of the plaintiff the defendants interposed a general demurrer, which was overruled by the court and defendants refusing to further answer, judgment was entered by the district court in favor of the plaintiff and against defendants, granting the injunction prayed for. From such judgment this appeal is taken.

Section 2 of the act of February 2, 1899, above referred to provides, inter alia, that "whenever the common council of such city or the trustees of such town, or other legislative body of any such city or town, shall deem it advisable to issue the coupon bonds of such city or town, for any of the purposes aforesaid, the mayor and common council of such city or the trustees of such town shall provide therefor by ordinance, which shall specify the purpose of issuing such proposed bonds; if it is to create a new debt, the object thereof must be stated, or if it is to fund or refund any existing indebtedness, it must be described; and when it consists of warrants or other securities, they must be described by giving their number, date and amount, and the fund out of which the same, according to the terms thereof, are payable; and the ordinance shall declare the purpose and the total amount for which such bonds shall be issued," etc. On the eleventh day of April, 1899, the mayor and common council passed a resolution...