State ex rel. Board of Fund Com'rs v. Holman, 45678

• Decision Date: 10 December 1956
• Docket Number: No. 45678,45678
• Parties: STATE ex rel. BOARD OF FUND COMMISSIONERS of the State of Missouri, and Phil M. Donnelly, John M. Dalton, George Hubert Bates, and M. E. Morris, constituting a majority of the members thereof, Relators, v. Haskell HOLMAN, State Auditor of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 482

296 S.W.2d 482

STATE ex rel. BOARD OF FUND COMMISSIONERS of the State of Missouri, and Phil M. Donnelly, John M. Dalton, George Hubert Bates, and M. E. Morris, constituting a majority of the members thereof, Relators, v. Haskell HOLMAN, State Auditor of Missouri, Respondent.

No. 45678.

Supreme Court of Missouri, En Banc.

Dec. 10, 1956.

John M. Dalton, Atty. Gen., Robert R. Welborn, Asst. Atty. Gen., for relators.

Frank B. Edwards, Jackson A. Wright, Fry, Edwards & Wright, Mexico, for respondent.

Thompson, Mitchell, Thompson & Douglas, James M. Douglas, Richard P. Conerly, St. Louis, for Missouri Public Expenditure Survey, amicus curiae.

DALTON, Chief Justice.

Original proceeding in mandamus. Relator seeks to compel the State Auditor to register certain bonds, as hereinafter stated. The cause has been submitted on the pleadings, briefs and an agreed statement of facts.

On May 3, 1955, the 68th General Assembly by resolution ordered submitted to the qualified electors of the State an Amendment to the Constitution authorizing the issuance by the State of bonds up to $75,000,000 for certain purposes, as set forth in the Amendment, which Amendment was to be designated Sec. 37(a), Art. III, Constitution of Missouri. See Laws 1955, p. 867, V.A.M.S.Const. Sec. 37(a), Art. III.

Thereafter, the General Assembly passed an Act authorizing the issuance and sale of the bonds to the amount of $75,000,000 by the State of Missouri in accordance with the provisions of the proposed Amendment and further, providing that said Act should become effective upon approval of the said Amendment by the electors of the State. Laws 1955, p. 769, V.A.M.S.Const. Art. 3, Sec. 37(a) note. Thereafter, the Governor issued his proclamation on November 9, 1955, calling a special election on January 24, 1956, to vote upon the proposed Amendment. At the special election so held, the Amendment was approved by a majority of 67,961. On February 15, 1956, the Governor issued his proclamation declaring the result of the election and that the Amendment had been adopted. See Section 125.070, RSMo 1949, V.A.M.S.

On June 7, 1956, the Board of Fund Commissioners (See Sections 33.300 to 33.540 RSMo 1949, V.A.M.S.) adopted a resolution issuing the first series of bonds to the amount of $10,000,000 pursuant to said Constitutional Amendment and Bond No. 1 was presented to the State Auditor, respondent herein, for registration. Laws of Missouri 1955, pp. 769, 772, Sec. 3, provides that when the said bonds should be issued, they should be registered in the office of the State Auditor; and that 'he shall endorse on each bond his certificate that in the issuance thereof all of the conditions of the law have been complied with, and shall sign such certificate and authenticate the same with the seal of his office.' Registration of the bond was refused for the reasons stated in respondent's amended return herein. Respondent contends that the bonds should not be registered, nor the said certificate be executed.

The grounds for refusal to register the bonds are that the law has not been complied with; and that the so-called Sec. 37(a), Art. III was not validly enacted; (I) That the election at which the Amendment was sought to be submitted on January 24, 1956, was invalid (a) because the Constitutional Amendment was not published in the mode and manner required by Sec. 2(b), Art. XII of the Constitution; and (b) because the ballot title failed to state fully the purpose of the Amendment; (II) That while the proposal was submitted in the form of a Constitutional Amendment it is not in substance a Constitutional Amendment, but is a proposition that the State should incur indebtedness and issue bonds and 'the proposal combined into one proposition the incurrence of indebtedness and the issuance of bonds of the State for distinct and different purposes not germane one to the other' and which have no natural relationships; and (III) That the proposed Amendment amended more than one Article of the Constitution and violated Sec. 2(b), Art. XII of the Constitution.

Whether the prescribed procedure for amending the Constitution has been followed and whether the Constitution has been validly amended is a judicial question. Edwards v. Lesneur, 132 Mo. 410, 434, 33 S.W. 1130, 31 L.R.A. 815; State v. McBride, 4 Mo. 303, 306.

The Missouri Public Expenditure Survey, a non-profit corporation, has been permitted to intervene as amicus curiae and has filed a brief seeking to have the Amendment declared void because of alleged failures to comply with constitutional provisions. Amicus curiae urges substantially the same points as respondent, but in different order.

Section 37, Art. III of the Constitution provided a limitation on state debts and bond issues, as follows: 'The general assembly shall have no power to contract or authorize the contracting of any liability of the state, or to issue bonds therefor, except (1) to refund outstanding bonds * * * (2) on the recommendation of the governor, for a temporary liability to be incurred by reason of unforeseen emergency or casual deficiency in revenue, * * * and (3) when the liability exceeds one million dollars, the general assembly as on constitutional amendments, or the people by the initiative, may also submit a measure containing the amount, purpose and terms of the liability, and if the measure is approved by a majority of the qualified electors of the state voting thereon at the election, the liability may be incurred * * *.' V.A.M.S.Const. art. 3, Sec. 27.

It will be noted that by reason of the above section, the General Assembly has no power to contract or authorize the contracting of any liability of the state, or to issue bonds therefor, except as stated therein, and when the liability exceeds one million dollars a measure may be submitted containing the amount, purpose and terms of liability for approval or rejection by a majority of the qualified electors of the state voting thereon at the election.

In this instance the 68th General Assembly submitted the proposed Amendment for the $75,000,000 bond issue by Senate Joint Resolution No. 9, which, including title, covers some three printed pages. The title of the resolution stated the purpose of the proposed Amendment as follows: '* * * to authorize the General Assembly to contract a debt or liability on behalf of the state of Missouri and to issue bonds of the state of Missouri to an amount not exceeding Seventy-five Million Dollars ($75,000,000) for the purpose of repairing, remodeling or rebuiling, or repairing, remodeling and rebuilding state buildings and properties at all or any of the penal, correctional and reformatory institutions of this state, the state training schools, state hospitals and state schools and other eleemosynary institutions of this state, and institutions of higher education of this state, and for building additions thereto and additional buildings where necessary, and for furnishing and equipping any such improvements * * *.'

The Act of the 68th General Assembly, Laws 1955, p. 769, providing for the issuance of the bonds in the event the proposed Amendment should become effective upon approval by the electors of the state, carried a title in which was reviewed the same purposes as stated in the proposed Amendment and added the following also from the proposed Amendment: '* * * providing for the creation of the Second State Building Bond Interest and Sinking Fund; providing for the payment of the portion of the proceeds of the state income tax into such fund; providing for the levying and collection of a direct annual tax upon all taxable tangible property in the state to pay the principal and interest of the bonds where the proceeds of the income tax are insufficient; providing for the payment of interest on and redemption of said bonds by the Board of Fund Commissioners * * *.'

We shall not consider respondent's points in the order in which they were submitted, but shall consider the ballot title first. Was the election invalid on the ground that 'the ballot title failed to state fully the purpose of the Amendment?' Respondent says 'the ballot title failed to give a true and intelligent statement of the purposes of the proposed constitutional amendment.' The only authority cited in support of this contention is Section 125.030, RSMo 1949, V.A.M.S. This section provides that, when a Constitutional Amendment is proposed, the Secretary of State shall send a copy to the Attorney General who 'shall provide and return to the secretary of state an official ballot title for such proposed constitutional amendments. The official ballot title may be distinct from the legislative title of such proposed constitutional amendment and shall express in not exceeding twenty-five words the purpose of such proposed constitutional amendment. * * * Any citizen who is dissatisfied with the official ballot title provided by the attorney general * * * may appeal from his decision to the circuit court by petition within ten days * * * No appeal shall be allowed from the decision of the attorney general on an official ballot title unless the same is taken within ten days after such decision is filed with the secretary of state.'

The official ballot title transmitted to the secretary of state was as follows: 'Proposed Constitutional Amendment Number 1 (Submitted by the 68th General Assembly)

'Amendment to Article III of the Constitution adding a new section thereto to be known as Section 37(a) authorizing the General Assembly to issue $75,000,000 in bonds to build, rebuild, repair or remodel buildings at state eleemosynary and educational institutions.'

No citizen took an appeal to the circuit court from the decision of the attorney general concerning the form of the ballot title.

It is apparent that, in order to reduce the stated purpose of the proposed Amendment (covering some 2 1/2 pages of printed matter) to twenty-five words, only a very...