Dunn v. City of Great Falls

• Decision Date: 23 January 1893
• Citation: 31 P. 1017,13 Mont. 58
• Parties: DUNN et al. v. CITY OF GREAT FALLS et al.
• Court: Montana Supreme Court

31 P. 1017

13 Mont. 58

DUNN et al. v. CITY OF GREAT FALLS et al.

Supreme Court of Montana

January 23, 1893

Appeal from district court, Cascade county; CHARLES H. BENTON Judge.

Action by Matthew Dunn and others against the city of Great Falls and others to have declared void certain bonds issued by defendant city. The case was submitted on an agreed statement of facts. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

William G. Downing, for appellants.

Jere B Leslie, for respondents.

PEMBERTON C.J.

This is an appeal from the judgment of the lower court, rendered on a submission on an agreed statement of facts, under and in pursuance of chapter 3, § 468, div. 1, Comp. St. Mont. On the second Monday of April, 1892, as appears from the agreed statement of facts, an election was regularly held, in accordance with the statutes of the state, in the city of Great Falls, by the qualified voters of said city, to determine whether or not the city council of said city should issue, and have authority to issue and sell, the bonds of said city, to wit: $40,000 of said bonds for the purpose of purchasing lands for a park, to be owned and used by said city; $30,000 of said bonds for the purpose of funding the outstanding indebtedness of said city; $30,000 of said bonds to be used for constructing a main sewer in and for said city,--the total of said bonds to aggregate the sum of $100,000. At said election the bonds, and all of them, were voted by a considerable majority of the voters of said city. Under the authority of said election, all of said bonds were issued and sold by said city, but have not been delivered to the purchasers. This proceeding was instituted by the appellants, who were plaintiffs below, to have said bonds declared invalid, and the sale and delivery thereof perpetually enjoined, on the ground that the law under which they were issued is unconstitutional, and the bonds consequently void. The court below held that the city council had the legal and constitutional authority to issue, sell and deliver said bonds, from which judgment this appeal is taken.

It is conceded that the election held in said city on the proposition to authorize the issuing of all of said bonds, the issuing and sale thereof, and all proceedings had and things done in relation to said bonds, were had, held, and done under and in pursuance of an act to enable cities and towns to incur indebtedness, passed by the legislative assembly of the state of Montana, approved March 5, 1891, and acts of which it is amendatory. Section 1 of the act of 1891, supra, is as follows: "Section one of 'An act to amend and act to enable cities and towns to incur indebtedness,' approved February 28, 1889, is hereby amended so as to read as follows: 'Section 1. That any incorporated city or town in the state of Montana having an assessed valuation of eight hundred thousand dollars or over is hereby authorized to submit to the qualified electors of such city or town the question whether coupon bonds shall be issued on the credit of such city or town to an amount not exceeding, including existing indebtedness, four per cent. of its assessed valuation, for the purpose of funding any or all existing indebtedness, constructing waterworks, public buildings, street grades, bridges, sewers, or other public improvements."' In the enactment of this law the legislative assembly seemingly overlooked section 6, art. 13, of the state constitution, which is as follows: "No city, town, township, or school district shall be allowed to become indebted in any manner, or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding three (3) per centum of the value of the taxable property therein, to be ascertained by the last assessment for the state and county taxes previous to the incurring of such indebtedness; and all bonds and obligations in excess of such amount given by, or on behalf of, such city, town, township, or school district, shall be void." Counsel for appellants claim that as the statute under which these bonds were issued permits cities of the class therein named to incur an indebtedness of 4 per cent. of its assessed valuation, including existing indebtedness, whereas the constitution, as above quoted, limits the amount of indebtedness such cities may incur to 3 per cent. of its assessed valuation, it necessarily follows that the whole of said statute is void by reason of its being in conflict with said section of the constitution. Counsel for respondents contend that there is much of value and importance in said statute that can be enforced, and ought to be enforced, by the city council, in order to properly improve the city, and enforce and execute the power granted to the city council; and that the statute is only unconstitutional in so far as it provides for incurring an indebtedness of 4 per cent., whereas the constitutional limitation of the indebtedness is 3 per cent. The respondents contend that the only repugnancy in the statute to the constitution is the rate of indebtedness the city can incur; that the city, by issuing and disposing of these bonds, will not incur an indebtedness greater than allowed by the constitution; that the city, under said statute with the 4 per cent. stricken out, could incur this indebtedness without violating or exceeding the constitutional limit of 3 per cent., leaving said statute intact as to the manner of proceeding in the exercise of authority by the city council in the care and necessary improvement of the city. It is conceded that the assessed valuation of the property included within the city limits of the city of Great Falls exceeds $7,000,000; that, at the time of the election referred to herein, the indebtedness of said city was about $30,000; and that the indebtedness of said city, including the bonds in this controversy, will not exceed $150,000, which is considerably below the constitutional limit.

The question before this court for adjudication is this: Is the statute of the state of Montana, approved March 5, 1891 under which the bonds in controversy were issued, wholly in conflict with section 6, art. 13, of the constitution, and void, or only void to the extent of said apparent repugnancy? Sutherland, in his work on Statutory Construction, (section 138,)...