State ex rel. City of Carthage v. Hackmann
| Decision Date | 01 April 1921 |
| Citation | 229 S.W. 1078,287 Mo. 184 |
| Parties | THE STATE ex rel. CITY OF CARTHAGE v. GEORGE E. HACKMANN, State Auditor |
| Court | Missouri Supreme Court |
Writ issued.
Frank R. Birkhead for relator.
(1) The proper assessment to be used as a basis of determining the city's debt limit is that based upon the ownership as of June 1, 1917, and not that as of June 1, 1916, as contended by the respondent. The record shows that the 1918 assessment of Jasper County property was practically completed and certified to the county clerk prior to September 16, 1919 the date of the special bond election, although the State Board of Equalization had not actually adjourned. In fact the State Board did not finally adjourn until February 19, 1920. (2) In calculating its debt limit, the City of Carthage is entitled to exclude its outstanding bonds issued to construct its waterworks owned exclusively by the city. Sec. 12a, Art 10, Mo. Constitution. This question was before this Court in 1906 in the case of State ex rel. City of Columbia v Wilder, 197 Mo. 1. Judge Valliant, wrote the dissenting opinion, concurred in by Judges Brace and Lamm, and his views are correct. The $ 100,000 outstanding waterworks bonds was the only indebtedness of said city at the date of the special election on September 16, 1919. Therefore by excluding such indebtedness these street paving bonds are well within the five per cent limit. (3) The construction of a section or provision of the Constitution must not be so strict or technical as to defeat the evident objects and purposes of its creation. Missouri Loan Bank v. How, 56 Mo. 59; State ex rel. v. McGowan, 138 Mo. 187, 192; 25 Ruling Case Law, 1077; 12 C. J., 700. (4) The act under which these street paving bonds were voted and issued expressly provides that cities in ascertaining their debt limits in issuing bonds under such act, may exclude outstanding waterworks bonds. Sec. 9256a, p. 570, Laws 1919. (5) The Fiftieth General Assembly proposed two constitutional amendments amending Sections 12 and 12a of Article 10, both of which were adopted by the people at the last general election. One of these amended said article by striking out Section 12 and adding a new section in lieu thereof, to be known as Section 12. The first ten lines of the new Section 12 are identical with the same part of the original section the words "including existing indebtedness" being retained. This same General Assembly enacted the act above referred to (Laws 1919, pp. 569 to 572), which clearly excludes from the "existing indebtedness" the indebtedness of cities incurred under the provisions of Section 12a. It cannot reasonably be said that the law-makers intended that Section 12 requires cities to calculate their outstanding waterworks and light bonds as part of their "existing indebtedness" in the face of an act passed by the same body which expressly declares that such cities may disregard such bonds, in ascertaining their debt limit. 12 C. J. 714; Cook County v. Healey, 222 Ill. 310. The other amendment proposed and ratified, amended Section 12a so that said section now applies to all cities with less than 30,000 inhabitants, and provides further that such cities may become indebted in a larger amount than specified in Section 12, not exceeding an additional ten per cent of the value of taxable property therein for the purpose of purchasing or constructing waterworks, lighting plants and ice plants. Here again is seen the dominant idea and purpose of increasing the taxing power of cities that they might own these utilities.
Jesse W. Barrett, Attorney-General, and Robert J. Smith, Assistant Attorney-General, for respondent.
(1) The facts and figures appearing in relator's petition show that the indebtedness is in excess of the limit fixed by the Constitution of this State. Sec. 12, Art. 10, Mo. Constitution; State ex rel. v. Wab. Railroad, 251 Mo. 141; State ex rel. v. Gordon, 251 Mo. 309. (2) Petition shows upon its face that said bonds are null and void and should not be registered, and are in excess of limitation fixed by Section 12, Article 10 of the Constitution, and contrary to the provisions of Section 12a, Article 10, and are therefore invalid. State ex rel. City of Columbia v. Wilder, 197 Mo. 1; State ex rel. v. Wabash Railroad, 251 Mo. 141; State ex rel. v. Gordon, 251 Mo. 303. Section 9256a, p. 570, Laws 1919, is contrary to the provisions of the Constitution, and did not authorize this election as claimed by relator; it certainly could not be contended that the proposed amendment by the Fiftieth General Assembly amending Section 12 and 12a of the Constitution approved by the people at the last general election could affect the election of September 16, 1919. Sec. 12, Article 10, Mo. Constitution; Sec. 12a, Article 10, Mo. Constitution.
OPINION
In Banc.
Mandamus.
On January 11, 1921, the City of Carthage as relator filed its petition for a writ of mandamus to compel respondent as Auditor of the State of Missouri to register bonds in the sum of $ 150,000, authorized by the relator at a special election held September 16, 1919, for the purpose of paying a portion of the cost of paving in said city, as provided for by Laws of 1919 at pages 569 to 572 inclusive.
The regularity of the proceedings of said city in said election and the subsequent proceedings before the city council and the authority of such city to issue bonds of this character are not disputed. Respondent refused registration of said bonds on the ground that the issue of $ 150,000, added to the then existing indebtedness of relator city exceeded the limit of indebtedness of said city as fixed by Section 12 of Article 10 of the Constitution.
Respondent waived the issuance of the alternative writ of mandamus, and filed his demurrer to the petition, thereby admitting the truth of all facts well pleaded in the petition. Further facts necessary to an understanding of the case will be set out in the opinion.
I. Relator contends that the amount of indebtedness it is authorized to incur under Section 12, Article 10, of the Constitution of Missouri, should be ascertained from and measured by the assessment of 1917, and not by the assessment of 1916. The provision of said section limits the indebtedness that relator and other cities may incur in any year to "five per centum on the value of the taxable property therein, to be ascertained by the assessment next before the last assessment for state and county purposes, previous to the incurring of such indebtedness." The assessments mentioned in this section mean completed assessments. [State ex rel. City of Dexter v. Gordon, 251 Mo. 303, 158 S.W. 683; State ex rel. v. Wabash, 251 Mo. 134, 158 S.W. 26; Steinbrenner v. St. Joseph, 226 S.W. 890.] The clause "previous to the incurring of such indebtedness" means previous to the authorization of the indebtedness in the election held by the voters of the municipality. [State ex rel. City of Dexter v. Gordon, supra; Steinbrenner v. St. Joseph, supra.] The State Board of Equalization had not completed the equalization of the 1918 assessment and certified its action thereon previous to September 16, 1919, the date of the election, and hence the assessment of 1916 was the "next before the last assessment," and must be used as the measuring rod.
II. The total indebtedness of the City of Carthage existing and outstanding on September 16, 1919, was $ 100,000. The value of the taxable property in said city as determined by the assessment of 1916 was $ 3,602,153.48, and five per cent thereof was $ 180,107.67. If the $ 100,000 existing indebtedness, which is due to the issuance of bonds for the construction of municipal waterworks, is considered as part of the existing indebtedness, mentioned in Section 12, of Article 10, limited to five per cent of the taxable property, the issue of $ 150,000 of paving bonds involved in this case is clearly invalid, because it contemplates a bonded indebtedness of $ 250,000, or an excess of $ 69,992.33.
In the case of State ex rel. City of Columbia v. Wilder, 197 Mo. 1, 94 S.W. 495, hereinafter referred to as the Columbia Case, the facts were almost identical with those in the instant case, and the decision was adverse to the claims of the City of Columbia. It doubtless was because of the controlling authority of that case that respondent refused to register the bonds of the city of Carthage. In the Columbia Case the facts were that the city had an existing indebtedness of $ 140,700, of which $ 110,000 was issued and sold for the purpose of paying for the waterworks and electric light plant. An additional debt of $ 10,000 for the purpose of constructing sewers was authorized by election and subsequent city ordinances. The State Auditor refused registration, as here. Five per cent of the value of the taxable property of the City of Columbia was found to be $ 123,102.50, so that the total indebtedness, including the bonds issued for waterworks and electric light plant purposes, exceeded such five per cent.
The contention made by the City of Columbia was that, in view of the amendment of the Constitution designated as Section 12a of Article 10, the $ 110,000 waterworks and electric light plant bonds should not be considered as part of the existing indebtedness, which cannot exceed five per cent., as provided in Section 12 of Article 10, but should be regarded as falling within the additional five per cent allowance at that time provided by Section 12a, Article 10. Treated thus, the proposed sewer bonds would not have created...
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