State ex rel. State Bldg. Com'n v. Smith

• Decision Date: 13 August 1934
• Docket Number: 33789
• Citation: 74 S.W.2d 27,335 Mo. 840
• Parties: State of Missouri at the Relation of the State Building Commission and Guy B. Park, Dwight H. Brown, Richard R. Nacy and Charles A. Lee, Constituting a Majority of Members Thereof, Relators, v. Forrest Smith, State Auditor
• Court: Missouri Supreme Court

74 S.W.2d 27

335 Mo. 840

State of Missouri at the Relation of the State Building Commission and Guy B. Park, Dwight H. Brown, Richard R. Nacy and Charles A. Lee, Constituting a Majority of Members Thereof, Relators, v. Forrest Smith, State Auditor

No. 33789

Supreme Court of Missouri

August 13, 1934

Alternative writ made permanent.

Benjamin H. Charles and Carl Trauernicht for relators.

(1) By the act approved January 9, 1934 (Laws Ex. Sess., 1933-34, p 107) the Assembly has in fact made provision for the contracting of debts or liabilities of the State within the meaning and intent of Section 44d of Article IV of the Constitution. (a) If Section 44d of Article IV is not self-enforcing, the acts passed by the General Assembly at the same session which submitted the amendment to the people constitute all the legislation necessary to carry the amendment into effect. (2) By the passage of the Building Commission Act (Laws Ex. Sess. 1933-34, p. 107) and the passage of the act approved December 14, 1933 (Laws Ex. Sess 1933-34, p. 114), the Legislature must be understood as thereby intending to carry into full execution the provisions of Section 44d of Article IV, the amendment submitted by the same Legislature to a vote of the people. (3) If the amendment is not self-enforcing, and if said acts do not make it effective, then the whole purpose of both the amendment and the acts is defeated. (a) That purpose was to make Missouri a partner with the Federal Government and with the other states in the National Recovery movement. (b) If another act is necessary, such act would not be in effect for about a year from this time. Fahey v. Hackmann, 291 Mo. 351. (c) And if a referendum were invoked on such act, its effective date would be further postponed until after a favorable vote in November, 1936. (d) Such protracted delay would jeopardize the receipt by the State of any Federal funds for the State's building program. Indeed, it is almost certain that such funds would be lost. They would probably go to other communities. (e) All this the Legislature must be deemed to have had in mind when it was enacting legislation to further the State's building program. (4) So far as the building program is concerned, the legislation adopted contemporaneously with the amendment makes the amendment effective. The minor details of the bond issue, not treated by the amendment or by special legislative act, fall within the field of administrative determination. (5) The inference is that the Legislature considered a special bond enabling act unnecessary and superfluous. Any other inference drawn from the failure of the Legislature to pass such an act would contain sinister implications, which the court, of course, will not impute to the Legislature. (a) The Special 1933-34 Session of the Legislature had before it a bond-enabling act introduced on the very same day that Joint and Concurrent Resolution No. 1 (the amendment) was introduced and on the same day that the bill for the Building Commission Act was introduced, and on the same day that the bill authorizing the Governor to apply for Federal aid was introduced. Senate Journal 1933-34, Ex. Sess. p. 13. (b) The court will take judicial notice of legislative journals. 23 C. J., p. 102, sec. 1902; 15 R. C. L., p. 1110, sec. 41. (6) Respondent's chief reliance is upon the obiter dictum in Fahey v. Hackmann, 291 Mo. 351. (a) That obiter dictum is unsound. (b) The situation confronting the court in Fahey v. Hackmann is different from the facts and circumstances in the case at bar. (7) Whether Section 44d is self-enforcing or not is to be considered, not in the light of a judge's dictum in another case, but from all the circumstances surrounding the State, and surrounding the Legislature, last winter.

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

(1) The amendment to the Missouri Constitution, Article IV, Section 44d, adopted at the special election in May, 1934, and authorizing the contracting of a debt and the issuance of bonds in a sum not exceeding ten million dollars ($ 10,000,000) at a rate of interest not exceeding five per centum (5%) per annum, and maturing not later than thirty-five (35) years from their date, is not self-executing, but requires a legislative act before the bonds can be issued or sold. Sec. 44d, Art. IV, Mo. Const.; Laws Ex. Sess. 1933-34, p. 174; Fahey v. Hackmann, 237 S.W. 761, 291 Mo. 351. (2) The failure of the Legislature to make suitable provision for rendering an amendment effective is no argument in favor of a self-executing construction of the amendment. 12 C. J. 730; Fahey v. Hackmann, 237 S.W. 761, 291 Mo. 351. (3) Constitutional provisions are not self-executing if the language of the Constitution is directed to the Legislature. 12 C. J. 730; 6 R. C. L., sec. 54, p. 58; State v. Kyle, 166 Mo. 287, 65 S.W. 763; Willis v. Mabon, 48 Minn. 140; State v. Lynch, 88 Ohio St. 71, 102 N.E. 672. (4) The requirement of the State Constitution (Article XV, Section 2), and our statute (Sec. 10384, R. S. 1929), provides for the publication of all constitutional amendments "for four consecutive weeks next preceding the general election then next ensuing." Art. XV, Sec. 2, Mo. Const.; Sec. 10384, R. S. 1929; Russell v. Croy, 164 Mo. 92.

OPINION

Gantt, J.

Original proceeding in mandamus. Relators seek to compel the State Auditor to register certain bonds. The case was submitted on the pleadings, and the facts may be stated as follows:

An amendment to the Constitution was submitted to the qualified voters of the State by a resolution of the General Assembly. [Laws 1933-4, Ex. Sess., p. 174.] At the election it was approved by a majority of 121,588. The pertinent parts of the amendment follow:

"The General Assembly shall have power to authorize the contracting of a debt . . . on behalf of the State and to issue bonds . . . not exceeding in the aggregate Ten Million Dollars ($ 10,000,000), for the purpose of repairing, remodeling or rebuilding . . . the eleemosynary or penal institutions of this State . . .; such bonds to bear interest at a rate not exceeding five per centum (5%) per annum, payable semi-annually, and maturing not later than thirty-five (35) years from their date. Said bonds shall be issued by the State Board of Fund Commissioners in such amounts, from time to time, as may be necessary to carry on the building program herein provided for. The proceeds of the sale or sales of any bonds issued hereunder, together with any funds granted by or otherwise received from any agency of the Federal Government in aid of the purposes herein specified, shall be paid into the state treasury and be credited to a fund to be designated 'State Building Fund,' and shall thereupon stand appropriated, without legislative action, for said purposes and for the payment of all expenses, incidental thereto. The proceeds of the sale of the Ten Million Dollars ($ 10,000,000) of bonds herein authorized shall be expended for the purpose of repairing, remodeling or rebuilding any of the public buildings of the State . . . devoted to eleemosynary and penal purposes, . . . and additional buildings where necessary."

The amendment provided in detail for the collection of taxes to pay the bonds and interest. It then provided as follows:

"All funds paid into the State Building Bond Interest and Sinking Fund shall be and stand appropriated without legislative action to the payment of principal and interest of the said bonds, there to remain until paid out in discharge of the principal of said bonds and the interest accruing thereon, and no part of said fund shall be used for any other purpose so long as any of the principal of said bonds and the interest thereon shall be unpaid. . . . The General Assembly shall enact such laws as may be necessary to carry this amendment into effect."

The auditor contends that there is no legislation "to carry the amendment into effect."

At the same session (Laws 1933-4, Ex. Sess., p. 107), the General Assembly enacted a law creating a State Building Commission. The act directed the commission to determine the needs of the eleemosynary and penal institutions and divide among them according to said needs, the money realized from Federal aid and the sale of the ten million dollars of bonds to be...