State ex rel. City of Hannibal v. Smith

• Citation: 74 S.W.2d 367,335 Mo. 825
• Decision Date: 03 August 1934
• Docket Number: 33731
• Parties: State of Missouri at the Relation of the City of Hannibal, Relator, v. Forrest Smith, State Auditor
• Court: United States State Supreme Court of Missouri

74 S.W.2d 367

335 Mo. 825

State of Missouri at the Relation of the City of Hannibal, Relator, v. Forrest Smith, State Auditor

No. 33731

Supreme Court of Missouri

August 3, 1934

Peremptory writ ordered.

Fred B. Hulse, J. A. Collet, Benjamin H. Charles and Carl Trauernicht for relator.

(1) A city does not become "indebted" within the meaning of Section 12 of Article X of the Missouri Constitution unless the obligation it incurs is payable from taxes. Hence the issuance of city bonds payable solely from bridge tolls is not the incurring of an indebtedness. (a) This is the Missouri rule as to obligations payable from water revenues. State ex rel. v. Neosho, 203 Mo. 40. (b) This is our rule as to an obligation payable from revenues of an electric light plant. Bell v. Fayette, 325 Mo. 75. (c) As to bonds payable solely from drainage district assessments. In re Birmingham Drainage Dist., 266 Mo. 68; State ex rel. Drainage Dist. v. Thompson, 328 Mo 737. (d) As to bonds payable solely from sewer district assessments. State ex inf. Atty.-Gen. v. Curtis, 319 Mo. 334. (e) As to obligations payable from road district assessments. Embree v. Road District, 257 Mo. 618. (f) As to obligations payable by local improvement districts. Meier v. St. Louis, 180 Mo. 408. (g) The rule as to obligations payable solely from bridge tolls should be the same. (h) If the court should hold that Hannibal is incurring debt (within the meaning of the Constitution) by the issuance of these bonds, the court would in effect be overruling all the Missouri cases above cited. The purpose of any constitutional limitation on the incurring of debt is to protect taxpayers. If, therefore, no debt is created which is to be paid from taxes, the obligation which is incurred does not violate the Constitution. State ex rel. v Neosho, 203 Mo. 82; Hopkins County v. Coal Co., 114 Ky. 153, 37 L. R. A. (N. S.) 1061. Other authorities on the question (what is debt within the meaning of constitutional limitations) are the following: 6 McQuillin on Municipal Corp., p. 2 and p. 48, sec. 2389; Klein v. Louisville, 6 S.W.2d 1107; Bowling Green v. Kirby, 220 Ky. 839, 295 S.W. 1104; Ward v. Chicago, 342 Ill. 167, 173 N.E. 810; Briggs v. Greenville, 135 S.E. 157; Cathcart v. Columbia, 170 S.E. 435; Hesse v. Watertown, 232 N.W. 57; Barnes v. Lehi, 72 Utah 321, 279 P. 878; Lang v. Cavalier, 59 N.D. 75, 228 N.W. 819; Searle v. Haxtun, 84 Colo. 494, 279 P. 629; Mississippi Valley Power Co. v. Board, 47 S.W.2d 32; Jernigan v. Harris, 62 S.W.2d 5; Shields v. Loveland, 74 Colo. 27, 218 P. 913; Cited approvingly in Franklin Trust Co. v. Loveland, 3 F.2d 116; Florida v. Miami, 152 So. 6; Jerseyville v. Connett, 49 F.2d 246. (2) The issuance of these bonds is not the incurring of indebtedness in excess of "the income and revenue provided for the year," within the meaning of Section 12 of Article X of the Constitution. State ex inf. Atty.-Gen. v. Curtis, 319 Mo. 334; McCutchen v. Siloam Springs, 49 S.W.2d 1037. (3) It is not an indebtedness requiring the assent of two-thirds of the voters of the city voting on such proposition at an election to be held for that purpose. State ex inf. Atty.-Gen. v. Curtis, 319 Mo. 334. (4) The ordinance is not void, because it provides that if the bridge tolls should not be sufficient to service the bonds and also pay for operation, maintenance and repairs of the bridge, the city would, from monies received from sources other than bridge tolls, pay for such operation, maintenance and repairs of the bridge (its own property); because (a) Such costs are contingent, and not a present obligation. Saleno v. Neosho, 127 Mo. 627; State ex rel. v. Gordon, 265 Mo. 186; Webb City, etc., Water Works Co. v. Carterville, 153 Mo. 128; Water Co. v. City of Aurora, 129 Mo. 575; Vaughn v. Village of Greencastle, 104 Mo.App. 206; 17 C. J. 1377; Hornbeck v. State, 33 Ind. 609; Doland v. Clark, 143 Cal. 176; Marrill v. Bently, 150 Iowa 677; City of Austin v. Valle, 71 S.W. 414; Manufacturing Co. v. Beecher, 26 Hun, 48; Rhoades v. O'Farrell, 2 Nev. 60. (b) Because the city is under an obligation to care for and protect its own property, from year to year, as necessity may arise. (5) The bonds are not void because payable from tolls of a bridge not constructed entirely from the proceeds of their sale. (a) The State Highway Commission has express statutory authority to furnish funds for a part of the construction costs of the bridge. Sec. 4, H. B. No. 10, 57th General Assembly (Ex. Sess.), approved December 22, 1933. (1) The act is valid because it deals with the extension and improvement of the State's own highway system; and (2) Because the authority conferred on the commission is only an extension of the discretionary authority already possessed by the commission. Selecman v. Matthews, 321 Mo. 1051. (b) The bonds are not void merely because the city may have agreed, in its contract with the Government of the United States to advance $ 20,000 toward the construction of the bridge. Presumably the city has, or will have during the current fiscal year, the means to meet this obligation, out of its current revenues, or out of some balance such as may exist in a water and light fund. This obligation is therefore not obnoxious to Section 12 of Article X of the Constitution that no debt shall be incurred beyond the income and revenue for the year, without a two-thirds vote of the people of the city. The respondent does not allege that this amount is in excess of current revenues, or is not otherwise available. (6) The State Auditor is under the mandatory duty to register these bonds. Sec. 2920, R. S. 1929.

Roy McKittrick, Attorney-General, and Covell R. Hewitt, Assistant Attorney-General, for respondent.

(1) The ordinance set out in relator's application and petition for the writ is null and void for the reason that it attempts to authorize the city of Hannibal to incur an indebtedness to an amount exceeding the income and revenue provided for the year in which said ordinance was adopted, without the consent of two-thirds of the voters of said city voting on a proposition to incur such indebtedness in violation of Section 12, Article X, of the Missouri Constitution. Mo. Const., Art. X, Sec. 12; Water Co. v. Lamar, 128 Mo. 188; Hight v. Harrisonville, 41 S.W.2d 155; Hagler v. Salem, 62 S.W.2d 751; State ex rel. v. Gordon, 265 Mo. 181; Trask v. County, 210 Mo. 582. We cite the following cases from other jurisdictions on this point. Ottumwa v. City Water Supply Co., 119 F. 315; Lesser v. Warren Borough, 85 A. 839; Schnell v. City of Rock Island, 83 N.E. 462; Hagen v. Commissioners' Court of Limestone County, 160 Ala. 544, 49 So. 417; People v. Chicago, 97 N.E. 310. (2) The ordinance is null and void for the reason that it provides that if the bridge tolls laid on traffic using said bridge should not be sufficient to service the bonds and also pay for operations, maintenance and repairs of said bridge, the city would be compelled to pay same, from moneys received from sources other than bridge tolls, and it is null and void for the reason that said ordinance is in violation of Section 3, Act of Fifty-Seventh General Assembly, found at pages 115-116, Laws of 1933-34 (Extra Session). Sec. 3, Laws 1933-34 (Ex. Sess.), pp. 115-116; Book v. Earl, 87 Mo. 246; County v. Schell, 135 Mo. 31; Anderson v. County, 181 Mo. 46; State ex rel. v. Woodside, 254 Mo. 580; State ex rel. v. Gordon, 265 Mo. 181; People ex rel. v. Chicago & A. R. Co., 97 N.E. 310, 253 Ill. 191; Windsor v. Des Moines, 81 N.W. 476; Hight v. Harrisonville, 41 S.W.2d 158; Hagler v. Salem, 62 S.W.2d 751; City of Campbell v. Arkansas-Missouri Power Co., 55 F. 563; Garrett v. Swanton, 13 P.2d 729; 19 R. C. L., p. 985. (3) The ordinance is void because the city of Hannibal has no power to pledge to the payment of the proposed bridge bonds from a bridge not constructed entirely from the proceeds of said bonds. (a) The city of Hannibal has no charter or statutory authority to accept gifts or grants. Charter of City of Hannibal, Sess. Acts 1873, p. 236. (b) Municipalities have, or can exercise, only such power as is conferred by express or implied provisions of the law. City of Independence v. Cleveland, 167 Mo. 384; Hays v. Poplar Bluff, 263 Mo. 516; State ex rel. Memphis v. Hackman, 273 Mo. 670; McMurry v. Kansas City, 283 Mo. 479. (4) The State Highway Commission of Missouri has no power and is without authority of law to make such an advance of funds of the State of Missouri to a project which is to be owned solely and exclusively by the relator, the city of Hannibal. (a) The act of the Legislature authorizing the Highway Commission to contribute state funds to a toll bridge owned by a municipality is unconstitutional. Sec. 4, Laws 1933-34 (Ex. Sess.), p. 116; Const. of Mo., Art. IV, Secs. 45, 46, 53; Webb v. County, 67 Mo. 353; State ex rel. v. St. Louis, 216 Mo. 47. (b) The act of the Legislature authorizing such contribution to a local project is a special and local law and therefore unconstitutional. Const. of Mo., Art. IV, Sec. 53; State ex rel. v. Tolle, 71 Mo. 645; State ex rel. v. Herrmann, 75 Mo. 340; State ex inf. v. Southern, 265 Mo. 275; State ex rel. v. Lee, 319 Mo. 976; Davis v. County, 318 Mo. 248.

R. B. Elster, Homer Hall and N. S. Brown for Wabash Railway Company and its Receivers.

Tipton, J. Frank, C. J., Hays and Leedy, JJ., concur; Gantt and Ellison, JJ., concur in result; Atwood, J., dissents.

OPINION

TIPTON

Mandamus to compel respondent, the State Auditor, to register bond No. 1 of a series of bonds issued by the relator for the purpose of financing the building of a toll bridge across the Mississippi River. Respondent waived issue and service of the alternative writ; accepted relator's petition as and for the writ; and made...