Rosenstock v. Board of Sup'rs of Washington County

• Decision Date: 28 June 1920
• Docket Number: 21425
• Citation: 123 Miss. 175,85 So. 91
• Parties: ROSENSTOCK v. BOARD OF SUP'RS OF WASHINGTON COUNTY ET AL
• Court: Mississippi Supreme Court

85 So. 91

123 Miss. 175

ROSENSTOCK v. BOARD OF SUP'RS OF WASHINGTON COUNTY ET AL

No. 21425

Supreme Court of Mississippi

June 28, 1920

March 1920

APPEAL from chancery court of Washington county, HON. E. N. THOMAS Chancellor.

Suit by Morris Rosenstock against the Board of Supervisors of Washington County and others to enjoin a bond issue. Judgment for defendants, and plaintiff appeals. Affirmed.

Judgment affirmed.

Humphreys & Anderson, for appellant.

The question presented for the adjudication of the court in this appeal is as to the application of Senate Bill 200, pp 213-15, beinfi chapter 207 of the Acts of 1920.

Section 3 of said act provides that if a majority of the electors voting at the election provided for by section 2 vote in favor of the issuance of the bonds, then the board of supervisors may issue bonds either in whole or in part within one year after the date of the election, The election authorizing the present issue of road bonds was held on April 3, 1919. Chapter 207, was approved by the Governor on April 3, 1920. The simple question presented is whether the one year limitation applies to the bonds authorized at an election held prior to the passage of the act, the bonds not having been sold within the year provided by chapter 207.

In the Board of Highway Commission v. Warren, 83 So. 470, our court held that bonds are not issued until actually sold and delivered, and further held that the Act of 1918 applied to bonds authorized but not delivered prior to the passage of the act. It is true that in that case there was no election authorizing the issuance of the bonds. If such an election had been held, the bond issue would have been valid. Robertson v. Board of Supervisors, 119 Miss. 621. It is true that unless plainly expressed, a law will not be given a retroactive effect and it is possible that in the instant case of the one-year provision will apply to bonds issued under an election held prior to the passage of the act, the one-year limitation will begin to run from the date of the passage of the act and not revert back to the date of the election. This is a common sense construction of the law. We raise this question and attack the validity of the issue in order to have the court pass upon the matter.

This appellant is much opposed to having an issue of bonds of doubtful valadity made by Washington county. It is much better that the question of the valadity of the bonds be made at the threshold instead of being raised after the said bonds have passed into the hands of innocent purchasers.

We hold that the said act applies to all bond issues whether the same are issued under the authority of said act or under the authority of any other act, and the bonds must be sold and delivered within one year after the date of the election authorizing the issuance of said bonds, whether said election is held under the provisions of said act or under any other act.

It is certain that investors will be "leery" of investing in road bonds issued under the various acts of the Mississippi legislature since this last act, without having the validity of such bonds, passed upon by this court. We believe that there is sufficient merit in the objection made to this bond issue to at least constitute a serious obstacle in selling the bonds, unless this court shall affirm their validity.

We submit the questions raised for the consideration of the court.

Percy & Percy and Wm. Ray Toombs, for appellees.

There is only one question involved in this litigation and that is as to whether the limitation of one year provided in chapter 207 of the Laws of 1920, applies to the bond issue in controversy. In obedience to the mandate "let the people vote and give them a chance to express their sentiment at the ballot box" (Madison County v. Howard, 119 Miss. 133), an election was called when five thousand eight hundred and fifty-eight of the electors voted in favor of the bond issue and only forty-five voted against the bond issue. Prior to the sale of the bonds, but subsequent to the county entering into contracts, obligating itself to pay three hundred thousand dollars more than the amount realized from the first bond issue, the legislature enacted chapter 207. The purpose and intent of the legislature, as set forth in chapter 207, is to let the people express their consent at an election held for the purpose. The wisdom of the law seems to be based upon the theory that these burdens should be imposed only by expressed consent of those to be burdened, Hidleberg v. Batson, 119 Miss. 510. Our contention is that when the bonds are authorized under a law providing for an expression from the people of the district to be taxed, the chapter 207 does not apply, only acts in conflict with said act being repealed by it, and where there is no conflict in the mode of authority conferred by the two acts, that then the bonds can be issued under the other act and that the limitation of one year expressed in section 3 of chapter 207, applies only to bonds issued under the authority of chapter 207 and does not apply to bonds issued under the other act (in this case chapter 176 of the Laws of 1914), where the authority is conferred at an election held in a manner not repugnant to the provisions of chapter 207. Of course where no election is provided by the other act, chapter 207 prevails. Board of Highway Commission v. Warren, 83 So. 470. But, as stated in the Warren case, no bonds can be issued unless authorized by a majority of the electors voting in an election called for the purpose but not necessarily under an election held under the provision of chapter 207. Chapter 207 of the Laws of 1920, did not repeal chapter 176 of the Laws of 1914, there being no conflict between them. Robertson v. Board of Supervisors, 119 Miss. 621. Chapter 176 of the Laws of 1914, was readopted by the legislature of 1920 by Senate Bill 146. The sole important change in the provision of chapter 176, which was made by the legislature, was in the nature of the authority conferred upon the board of supervisors. Under chapter 176 of the Laws of 1914, upon the presentation of a petition to the board of supervisors, the board gave notice of its intention to issue bonds, and if it at the next regular meeting of the board, a petition protesting against the issuance of the bonds and signed by twenty per cent or more of the electors, was not filed, then the board had authority to issue the bonds. If such a petition of protest was filed, then an election was ordered to determine the will of the people. Under the provisions of Senate Bill 146, upon the presentation of a petition for the organization of a district, the board immediately gives notice of its intention to organize a district and orders an election to be held. In this act the legislature was following out its purpose as set forth in chapter 207; that is, to permit the people to determine whether they desire to have a bond issue placed upon their taxing district. Chapter 207 is a general act dealing with a number of districts and organizations authorized to issue bonds, including counties. Senate Bill, 146, deals with road districts organized under its provisions. The general terms of chapter 207 will be restricted where, by a prior law, subjects naturally falling within such general terms have been classified, and made subject to distinct and dissimilar regulations, Lewis Sutherland Stat. Const., section 444. The two acts having been passed at the same session of the legislature will be construed in pari materia and both given affect, Senate Bill 146 applying exclusively to road districts organized under its provisions (being the same as chapter 176 of the Laws of 1914), and chapter 207 applying in every other case.

If the court should hold that we are in error as to the limitation of one year applying to bonds issued under an election held under Senate Bill 146, and not alone to an election held under the provisions of chapter 207, then if the two cannot be read together and harmonized to the extent of any necessary repugnance between them, Senate Bill 146 prevails in the instant case over the provisions of chapter 207. 36 Cy c., 1151. It is a well-known principle of law that statutes will not be construed to have a retroactive affect unless such is a plain mandate of the legislature and to construe the limitation of one year as applying to bonds authorized to be issued under an election consistent with the provisions of chapter 207, would work hardship, in the instant case peculiarly harsh and unjust. True the board of supervisors could go before the people and ask for authority at another election, but there must of necessity be a delay and in the meanwhile there is an obligation of three hundred thousand dollars pending and which must be paid and can only be paid out of the proceeds of the bond issue of one million two hundred and fifty thousand dollars. Under the provisions of chapter 176 of the Laws of 1914, the board of supervisors were authorized, without awaiting the insurance and sale of the bonds, to enter into contracts for the construction of a road system determined upon thereafter issuing and selling the...