State ex rel. Audrain County v. Hackmann
| Decision Date | 24 July 1918 |
| Citation | 205 S.W. 12,275 Mo. 534 |
| Parties | THE STATE ex rel. AUDRAIN COUNTY v. GEORGE E. HACKMANN, State Auditor |
| Court | Missouri Supreme Court |
Peremptory writ issued.
R. D Rogers and Charles & Rutherford of counsel for relator.
(1) A county hospital is a public building, and, therefore, the erection and maintenance of a county hospital is a public purpose. In re Board of Commissioners v. Peter, 253 Mo. 352. (2) Every presumption in favor of the validity and constitutionality of the Act of April 9, 1917, will be indulged by the courts, and the act will not be held to be unconstitutional unless it so plainly violates some provision of the Constitution that there is no escape from such conclusion. Board of Commissioners v. Peter, 253 Mo 520. (3) Such a construction of a statute should be adopted as will save the statute and make it operative. State ex rel. v. Duncan, 265 Mo. 47. And as will give effect to the intent of the lawmakers. State ex rel. v Duncan, 265 Mo. 26. (4) The main and essential purpose of the act is to authorize the different counties to proceed under the provisions of Section 12 of Article 10 of the Constitution in the incurring of indebtedness by the voting of bonds to provide funds for a public purpose. (a) This section requires the levy and collection of taxes sufficient in amount to retire such an indebtedness within twenty years. A provision in the Hospital Act for a tax for twenty years, indicates, therefore, the legislative intention that the bonds are to be retired within the time required by the Constitution for a bonded indebtedness. (b) It would be absurd to assert that the tax provisions of the act constitute the main features, the essentials, of the act; because the tax is for a period of twenty years only. And this conclusively shows an intention on the part of the Legislature that the tax should be for the retirement of an indebtedness in twenty years, as provided in the Constitution; and not for the support of the hospital, for that would mean a cessation of the tax, and an abandonment of the whole hospital project, at the end of that period. (c) The form of ballot prescribed by the act indicates that the main purpose and subject of the act has reference to the incurring of debt. (d) That part of the ballot referring to a tax may even be disregarded; because any form of ballot giving the voter full knowledge of the issue involved, viz, the incurring of debt, is sufficient. Dick v. Scarborough, 73 S.C. 150; State ex rel. v. Stangyer, 197 S.W. 251; State ex inf. v. Clardy, 267 Mo. 384; Russell v. Croy, 164 Mo. 95. (5) Even assuming that certain portions of the Act of 1917 may appear to be invalid, this does not invalidate the whole act. Such invalid portions do not go to the essential features of the act. They may be elided, and a complete and workable statute will still remain, under the provisions of which the bond issue is valid. State ex rel. v. Gordon, 268 Mo. 713; Hislop v. Joplin, 250 Mo. 588; Home Telephone Co. v. Carthage, 235 Mo. 668. A part of a statute may be constitutional and a part unconstitutional; in which events, if the part which is unconstitutional can be eliminated without destroying the law, then it will be declared valid. State ex inf. v. Duncan, 265 Mo. 46; State ex rel. v. Gordon, 236 Mo. 170; Shively v. Lankford, 174 Mo. 549; State ex rel. v. Field, 119 Mo. 612; State ex inf. v. Washburn, 167 Mo. 680. (6) Section 11 of Article 10 of the Constitution has no application. The essential purpose of the act, the incurring of indebtedness for the establishment of hospitals, is referable to Section 12 of Article 10 of the Constitution. (7) The provision of Section 12 of Article 10 of the Constitution requiring the levy of a tax to pay a debt incurred and interest thereon is self-executing. Evans v. McFarland, 186 Mo. 703; Black v. Early, 208 Mo. 281; State ex rel. v. Allen, 183 Mo. 292; 1 Dillon on Munic Corps. (5 Ed.), sec. 191, p. 342. (a) The tax provisions of the statute can add nothing to the Constitution; are mere surplusage; and may be disregarded. (b) No vote on the levy of a tax was necessary to make valid the bonds voted for a public hospital. Evans v. McFarland, 186 Mo. 726.
Frank W. McAllister, Attorney-General, S. P. Howell, Assistant Attorney-General, Thomas J. Cole, of counsel for respondent.
(1) It is the duty of respondent, as State Auditor, to determine whether there is authority of law for the issuance of the bonds; and if such exists, whether all the conditions of the statutes, applicable thereto, have been complied with in the particular issue presented for registration. Sec. 1275, R. S. 1909; State ex rel. Dexter v. Gordon, 251 Mo. 313, Thornburg v. School District, 175 Mo. 12; State ex rel. Pike County v. Gordon, 268 Mo. 326. (2) The Act of April 9, 1917, is violative of and in conflict with the first proviso contained in Section 11 of Article 10 of the Constitution. Laws 1917, 145; State ex rel. v. Wilder, 200 Mo. 105; Haussler v. St. Louis, 205 Mo. 690. Section 11 of Article 10 of the Constitution restricts the amount of tax rate, and then contains a proviso under the authority of which, upon meeting the conditions therein set out, and increased rate may be levied for the purpose designated, namely, the erection of public buildings; but it grants no authority to vote such increased rates for the support and maintenance of such buildings. Black v. McGonigle, 103 Mo. 202; Barnard v. Knox Co., 105 Mo. 389; State ex rel. v. Columbia, 111 Mo. 379; Brooks v. Schultz, 178 Mo. 226. (3) The act in question is unconstitutional for the further reason that its terms specifically and directly violate and conflict with the provisions of Section 12 of Article 10 of the Constitution. Sec. 1, Laws 1917, p. 145; Black v. Early, 208 Mo. 312; State ex rel. v. Gordon, 217 Mo. 118; State ex rel. v. Allen, 183 Mo. 293; Evans v. McFarland, 186 Mo. 727; State ex rel. v. Walker, 193 Mo. 706. Whether or not a legislative enactment impinges upon a constitutional provision is to be determined, not by what has been done under it, but by what may under its authority be done. Sterrett v. Young, 82 P. 946; Board of Education v. Aldredge, 13 Okla, 205; Lumsden v. Milwaukee, 8 Wis. 485. (4) The said Hospital Act further violates the provisions of Section 11 of Article 10 of the Constitution, in that said section grants no authority for the issuance of bonds in anticipation of the collection of an increased rate of taxation beyond the rate allowed by said Section 11, although such increased rate may be authorized by two-thirds of the qualified voters of such county voting therefor. Secs. 1, 2, 4 and 6, Laws 1917, p. 145; Benton v. Scott, 168 Mo. 397; Lamar v. City of Lamar, 128 Mo. 216; Harris v. Bond Company, 244 Mo. 693.
OPINION
In Banc.
Mandamus.
I. This is an original proceeding, seeking our writ of mandamus to compel respondent, George E. Hackmann, as Auditor of the States of Missouri, to register Bond No. 1 of an issue of $ 75,000 of bonds of Audrain County. Respondent waived the issuance of an alternative writ of mandamus and the case was submitted to the court upon the petition which stands as and for the writ and the return made thereto. The undisputed facts are as follows:
In December, 1917, a petition, signed by more than one hundred resident freeholders of Audrain County, more than fifty of whom were non-residents of the city of Mexico, was filed in the county court of said county, in which the intention to erect and maintain a public hospital in the city of Mexico was stated and asking that an annual tax be levied for its establishment and maintenance, the sum of $ 75,000 being the maximum amount proposed to be expended therefor. The petition further asked the court to submit the question to the qualified voters of Audrain County at a special election, duly called for that purpose upon proper notice to said voters, limiting the rate of the tax to be levied to one-half mill on the dollar for a period not longer than twenty years, and also providing for the issue of bonds to advance said project.
Said special election, after due notice, was held on April 5, 1918, and the question whether said tax of one-half mill on the dollar should be levied on the taxable property of said county for the erection of said public hospital, was duly submitted and carried by a two-thirds vote of the qualified voters. Following said election, the county court ordered and directed that certain negotiable coupon bonds of said county, to be known as "public hospital bonds," be prepared, executed, and registered in the office of the State Auditor; that said bonds should bear the date of May 1, 1918, be seventy-five in number, $ 1000 each in denomination, and to mature serially $ 15,000 each year from 1923 to 1927, both inclusive, with interest at five per cent per annum, payable semi-annually.
The petition further states that afterwards, in compliance with said court order, "Public Hospital Bond No. One" of said Audrian County, maturing May 1, 1923, was duly executed and presented to respondent, George Hackmann, State Auditor, together with the proper registration fee, who refused and still refuses to register said bond.
In his return respondent admitted every allegation of fact alleged in the petition and averred that there was passed by the 49th General Assembly of the State of Missouri an act (Laws 1917, page 145) to enable counties to establish and maintain public hospitals, levy a tax and issue bonds therefor, etc; that said act was approved April 9, 1917; that the bond relator seeks to have registered was authorized and executed in pursuance of a special election held under and by virtue of the provisions of said act; that respondent should...
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