Gage v. McCord

• Citation: 51 P. 977,5 Ariz. 227
• Decision Date: 26 January 1898
• Docket Number: Civil 627
• Parties: E. B. GAGE, Plaintiff and Appellant, v. M. H. McCORD et al., Defendants and Appellees
• Court: Arizona Supreme Court

51 P. 977

5 Ariz. 227

E. B. GAGE, Plaintiff and Appellant, v. M. H. McCORD et al., Defendants and Appellees

Civil No. 627

Supreme Court of Arizona

January 26, 1898

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Webster Street Judge. Affirmed.

L. H Chalmers, for Appellant.

C. M Frazier, Attorney-General, for Appellees.

OPINION

SLOAN, J.

-- The appellant brought suit in the court below, as a taxpayer, to enjoin the board of loan commissioners and the territorial treasurer from attempting to sell, hypothecate, or otherwise dispose of certain bonds issued by said board for the funding of territorial indebtedness, under the authority of the act of Congress approved June 25, 1890, and known as the "Funding Act." These bonds are alleged to bear date January 15, 1896, and to have been signed by B. J. Franklin as governor, C. M. Bruce, as territorial secretary, and C. P. Leitch, as territorial auditor, and to have been countersigned by P. J. Cole, who was then and there the duly qualified and acting territorial treasurer; that, upon the execution of said bonds, they were by said loan commissioners delivered to the said territorial treasurer, and that ever since they have remained in the possession of said territorial treasurer and his successors in office, for disposition as provided by said Funding Act; that, since the execution of said bonds and their delivery to the territorial treasurer, the said persons composing the board of loan commissioners at the date of said execution and delivery have been succeeded in office by the appellees, M. H. McCord, as governor, Charles H. Akers, as secretary, and George W. Vickers, as auditor; and that the territorial treasurer who countersigned the said bonds has been succeeded in office by appellee C. W. Johnstone, who is now the duly qualified and acting territorial treasurer. The complaint alleges that the present board of loan commissioners and the present territorial treasurer have arranged for the sale and disposition of the said bonds signed by the former loan commissioners and countersigned by the former territorial treasurer, and propose to use the proceeds thereof for funding and satisfying the fundable debts of the territory. The injunction is asked for upon three grounds, as stated in the complaint: First, the board of loan commissioners and the territorial treasurer have, since January 1, 1897, by congressional enactment, ceased to have any power or authority to negotiate, sell, or dispose of bonds for funding purposes; second, that even if the loan commissioners and treasurer have authority at this time to fund the outstanding territorial indebtedness, and for that purpose to dispose of territorial bonds, the bonds in question are invalid, and the officers of the territory have no authority to dispose of the same, because they are not signed by the present loan commissioners, and countersigned by the present territorial treasurer, but by their predecessors in office; third, that the said bonds are invalid, because not in the form as prescribed by law. We will consider these in their order.

In support of the first of these grounds contended for by appellant, reliance is had upon the provisions of the act of Congress approved June 6, 1896, which read as follows: --

" An act amending and extending the provisions of an act of Congress entitled 'An act approving with amendments the funding act of Arizona,' approved June twenty-fifth, eighteen hundred and ninety, and the act amendatory thereof and supplementary thereto, approved August third, eighteen hundred and ninety-four.

"Be it enacted by the senate and house of representatives of the United States of America in Congress assembled, that the provisions of the act of Congress approved June twenty-fifth, eighteen hundred and ninety, and August third, eighteen hundred and ninety-four, authorizing the funding of certain indebtedness of the territory of Arizona, are hereby amended and extended so as to authorize the funding of all outstanding obligations of said territory, and the counties, municipalities, and school districts thereof, as provided in the act of Congress approved June twenty-fifth, eighteen hundred and ninety, until January first, eighteen hundred and ninety-seven, and all outstanding bonds, warrants, and other evidences of indebtedness of the territory of Arizona, and the counties, municipalities, and school districts thereof, heretofore authorized by legislative enactments of said territory bearing a higher rate of interest than is authorized by the aforesaid funding act approved June twenty-fifth, eighteen hundred and ninety, and which said bonds, warrants, and other evidences of indebtedness have been sold or exchanged in good faith in compliance with the terms of the act of the legislature by which they were authorized, shall be funded, with the interest thereon which has accrued and may accrue until funded into the lower interest-bearing bonds as provided by this act.

"Sec. 2. That all bonds and other evidences of indebtedness heretofore funded by the loan commissioners of Arizona under the provisions of the act of Congress approved June twenty-fifth, eighteen hundred and ninety, and the act amendatory thereof and supplemental thereto, approved August third, eighteen hundred and ninety-four, are hereby declared to be valid and legal for the purposes for which they were issued and funded; and all bonds and other evidences of indebtedness heretofore issued under the authority of the legislature of said territory, as hereinbefore authorized to be funded, are hereby confirmed, approved, and validated, and may be funded as in this act provided until January first, eighteen hundred and ninety-seven: provided, that nothing in this act shall be so construed as to make the government of the United States liable or responsible for the payment of any of said bonds, warrants, or other evidences of indebtedness by this act approved, confirmed, and made valid, and authorized to be funded.

"Approved June 6th, 1896."

(29 Stats. 262.)

Stress is put upon the clause "until January first, eighteen hundred and ninety-seven," found in section 1 of the act, as bearing out the view that the purpose and intent of Congress was to limit the time within which the loan commissioners might act, and to require the completion of the work of funding, by the sale and disposition of bonds and the liquidation of the indebtedness allowed by this and prior acts to be funded, by January 1, 1897. Even were we restricted to the more literal meaning of the words used in construing remedial statutes of this kind, the narrow and circumscribed view thus taken of the statute can hardly be justified if regard be had to the whole of the statute, including the plain purpose of the act as expressed in its title. In the latter, it is clearly stated to be an amendment of previous statutes and the extension and enlargement of their provisions. Again, an analysis of the body of the act bears out the view that, instead of the purpose being to limit or restrict the exercise of any powers, rights, or privileges previously granted, the legislative will was to add to, extend, and enlarge these. The first section contains two general provisions, -- one authorizing the amendment and extension of the...