Evans v. McFarland

• Citation: 85 S.W. 873,186 Mo. 703
• Parties: EVANS et al. v. McFARLAND, Revenue Collector.
• Decision Date: 28 February 1905
• Court: United States State Supreme Court of Missouri

85 S.W. 873

186 Mo. 703

EVANS et al. v. McFARLAND, Revenue Collector.

Supreme Court of Missouri.

February 28, 1905.

MUNICIPAL CORPORATIONS — PUBLIC UTILITIES — POWERS — STATUTES — CONSTRUCTION — CONSTITUTIONAL LAW — INTEREST.

1. The recital in a municipal bond "that all acts, conditions and things required by the Constitution and laws of the state to be done precedent to and in the issuance of this bond have been properly done, in regular and due form and time, as required by law, and that the total indebtedness of the city, including this bond, does not exceed the constitutional or statutory limitation," is a mere self-serving narration, and estops no one to investigate its validity.

2. Laws 1895, p. 65 (Rev. St. 1899, art. 5, c. 91, § 5968), concerning cities of the fourth class, provides that the board of aldermen shall have power to borrow money and issue bonds for the payment thereof, within the limits prescribed by the Constitution, for the purpose of erecting waterworks, electric light works, a city hall, and other public buildings and improvements, and for furnishing the same, without increasing the annual rate of taxation, but that such bonds shall not be issued until two-thirds of the legal voters of such city have assented thereto, in accordance with Rev. St. 1899, art. 13, c. 91. That article is the same as Rev. St. 1889, art. 2, c. 31, empowering cities, towns, and villages to incur indebtedness in excess of the annual income and revenue for any such year for any purpose authorized in the charter of any such city, town, or village, or by any law of the state, on the assent of two-thirds of the legal voters thereof voting at an election held for that purpose (section 6350, Rev. St. 1899), and in other sections providing for holding the election, the form of ballots, issuance, and terms of bonds, and that the article shall apply to all cities, towns, and villages in the state, whether organized by special charter or under the general laws. Laws 1895, p. 65 (Rev. St. 1899, art. 5, c. 91), does not purport to affect article 2. c. 31, Rev. St. 1889, though expressly repealing other portions of Rev. St. 1889. Held, that Rev. St. 1899, art. 13, c. 91, was not repealed by necessary implication in the enactment of Laws 1895, p. 65 (Rev. St. 1899, art. 5, c. 91, § 5968), and section 5968 was not, in 1900, the only statutory warrant of authority for the issue of bonds by cities of the fourth class to establish water and electric light works.

3. Rev. St. 1899, § 5968, provides that certain cities shall have power to borrow money and issue bonds for the payment thereof, within the limit prescribed by the Constitution, for the purpose of erecting water and electric light works, a city hall, and other public buildings and improvements, "without increasing the annual rate of taxation." Const. art. 10, § 11, authorizes such cities to levy a tax at the rate of 50 cents on the $100 valuation for city purposes, without requiring a vote therefor. Section 12 provides that no city shall be allowed to become indebted in any manner for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose. Held, that where a city established a waterworks and lighting plant, and issued bonds in payment thereof, in pursuance of the assent of two-thirds of the voters of the city, at an election held for that purpose, a levy of a tax of 25 cents on the $100 of valuation to pay current interest on the bonds, in addition to a levy of 50 cents on the $100 for city purposes, was neither illegal nor in contravention of section 5968, even though there was no other statutory authority for the bond issue than section 5968.

4. Const. art. 10, § 12, providing that a city incurring any indebtedness requiring the assent of the voters shall, before or at the time of so doing, provide for the collection of an annual tax sufficient to pay the interest as it falls due, and also to constitute a sinking fund for payment of the principal within 20 years from the time of contracting the same, when an indebtedness has been voted by a city, is self-enforcing, and a levy of a tax to meet the interest is mandatory, without a direct vote of the people on the levy itself.

Burgess, J., dissenting.

In Banc. Appeal from Circuit Court, Howell County; Jas. T. Neville, Special Judge.

Controversy between W. N. Evans and others and J. H. McFarland, collector of revenue of the city of West Plains. From the decree, the collector appealed. Reversed.

H. D. Green, A. H. Livingston, Shope, Mathis, Zane & Weber, John C. Mathis, and Harry P. Weber, for appellant. W. J. Orr, for respondent.

LAMM, J.

This is an agreed case on the following submission:

"It is hereby stipulated and agreed that the matter of difference between the plaintiffs and defendant be submitted without the formality of a civil action, under the provisions of section 793, Rev. St. 1899, as follows:

"(1) It is agreed that the plaintiffs are resident taxpaying citizens of the city of West Plains, Mo.

"(2) That said city is a city of the fourth class, organized under the general laws for the organization of cities and towns.

"(3) That the defendant is the duly qualified and acting collector of the revenue of said city.

"(4) That the board of aldermen of said city for the year 1900, and for several years prior thereto, levied for city purposes 50 cents on the $100 valuation upon all property in said city, including the property of these plaintiffs, which said levy and tax of 50 cents on the $100 valuation plaintiffs have fully paid off and discharged.

"(5) That, in addition to the said levy of 50 cents on the $100 valuation for the year 1900, the board of aldermen on the 5th day of November, 1900, levied 25 cents on the $100 valuation on all taxable property of said city, including the real and personal property of these plaintiffs. That said 25 cents on the $100 valuation was levied for the purpose of paying the interest on certain bonded indebtedness voted and created by said city in the manner hereinafter set forth.

"(6) It is agreed that said bonds were voted and issued in the manner following:

"(a) That the following ordinance was passed by the board on the date stated:

"`Ordinance.

"`Be it ordained by the Board of Aldermen of the City of West Plains, as follows:

"`That a proposition to incur indebtedness and issue bonds therefor by said city of West Plains to the amount of twenty-seven thousand five hundred ($27,500.00) dollars, for the purpose of erecting waterworks and an electric light plant in said city, be submitted to the qualified voters of said city; that an election be held at the usual voting places in each ward of said city on the 28th day of July, 1900, to vote on said proposition; that notice of such election be given as required by section 6351, Rev. St. 1899, and that tickets or ballots be prepared and printed to be used at such election, which shall be in the following form:

"`"For incurring debt — Yes.

"`"For incurring debt — No."

"`The former of which shall be taken as a vote assenting to the creation of such debt, and the latter as dissenting therefrom.

"`Said ordinance shall take effect and be in force from and after its passage and approval.

"`Passed and approved this 2d day of July, 1900.'

"Signatures omitted.

"(b) The notice of election was as follows:

"`Notice of Special Election.

"`Notice is hereby given to the legal voters of the city of West Plains that in pursuance of an ordinance passed and adopted by the board of aldermen of said city, on the 2nd day of July, 1900, an election will be held on the 28th day of July, 1900, at the usual voting places in each ward in said city, to vote upon a proposition to incur an indebtedness of $27,500.00 and issue bonds therefor, for the purpose of building and erecting waterworks and electric light plant in said city, to be owned and operated by the city. Ballot: The ballot for such election will be prepared as follows: "For incurring debt — Yes. For incurring debt — No." The former of which shall be taken as a vote assenting to incurring of such debt, and the latter as dissenting therefrom.'

"Signatures omitted.

"(c) Afterwards the following proceedings were had:

"`City Hall, West Plains, Mo., Aug. 6th, 1900. City Council met in regular session, and were present Mayor H. G. Doty, Aldermen Geo. S. Hoey, W. S. Shadburne, L. W. Hunt, C. P. Harper, and Al J. Campbell, when and where the following business was had and done and made a record of, to wit:

"`"An ordinance concerning the special election held Saturday, July 28, 1900.

"`"Whereas, on the 2nd day of July, 1900, the board of aldermen passed an ordinance in words and figures as follows: [Here follows a copy of the ordinance, notice, and ballot, as already set out]; and whereas, on the 28th day of July, 1900, pursuant to said ordinance and notice, an election was held at the usual voting places in the city of West Plains, for the purpose of testing the sense of the voters upon the proposition as set forth in said notice and ordinance, to wit, whether the city of West Plains should incur an indebtedness of $27,500.00, and issue bonds therefor, as provided in art. 13, chapter 91, R. S. of Missouri, 1899; and whereas, upon a canvass of the certified returns of the judges of said election, submitted to the board at its regular meeting on Monday, August 6th, 1900, it appears that the number of votes cast for incurring such indebtedness was 438, and the number of votes cast against incurring such indebtedness was 57: Therefore be it ordained by the board of aldermen of the city of West Plains as follows:

"`"Section 1. That it is hereby declared that the called election for the purpose authorized has been duly held in accordance with the provision of article 13, c. 91, Rev. St. 1899, and two-thirds of the legal voters...