State ex rel. Wayne County v. Hackman

• Decision Date: 22 December 1917
• Parties: THE STATE ex rel. WAYNE COUNTY et al. v. GEORGE E. HACKMAN, State Auditor
• Court: Missouri Supreme Court

199 S.W. 990

272 Mo. 600

THE STATE ex rel. WAYNE COUNTY et al. v. GEORGE E. HACKMAN, State Auditor

Supreme Court of Missouri

December 22, 1917

Peremptory Writ Awarded.

D. N Holladay, V. V. Ing, S. G. Ray and Charles & Rutherford for relators.

(1) Where there is an express repeal of an existing statute, and a re-enactment of it at the same time, or a repeal and a re-enactment of a portion of it, the re-enactment neutralizes the repeal so far as the old law is continued in force. It operates without interruption when the re-enactment takes effect at the same time. 1 Lewis's Sutherland on Stat Const. (2 Ed.), sec. 238; 36 Cyc. 1083; Brown v Marshall, 241 Mo. 728; State ex rel. v. Mason, 153 Mo. 58; State ex rel. v. County Court, 53 Mo. 129; Smith v. People, 47 N.Y. 335-342; Moore v. Kenockee Twp., 4 L.R.A. (Mich.) 555; Fullerton v. Spring, 3 Wis. 671; Laude v. Railroad, 33 Wis. 643; Scheftels v. Tabut, 46 Wis. 446; Middleton v. Railway, 26 N.J.Eq. 273; Glentz v. State, 38 Wis. 554; Junction City v. Webb, 44 Kan. 73-4; Swamp Land Dist. v. Glide, 112 Cal. 90; Rock Pav. Co. v. Lyons, 133 Cal. 116; Callahan v. Jennings, 16 Colo. 476; People v. Board of Eq., 20 Colo. 231; Hancock v. Dist. Twp., 78 Iowa 554. (a) Inchoate statutory rights are not defeated. Capron v. Strout, 11 Nev. 304, 310; Skyrme v. Occidental Co., 8 Nev. 233; Moore v. Kenockee, 75 Mich. 333. (b) Statutory powers are not taken away. Middleton v. Railway, 26 N.J.Eq. 269. (d) Pending proceedings are not affected. Dennison v. Allen, 106 Mich. 296-300. (2) The effect of a repeal upon inchoate rights, and upon incomplete proceedings is avoided by a general statute for that purpose. R. S. 1909, secs. 8060, 8062; 1 Lewis's Sutherland on Stat. Const. (2 Ed.), sec. 287; United States v. Reisinger, 128 U.S. 401; Railroad v. United States, 208 U.S. 464; State ex rel. v. Drainage District, 192 Mo. 517; State v. Helms, 136 Ind. 131; Rogers v. Railroad, 35 Mo. 153; State ex rel. v. Vernon County, 53 Mo. 128; State v. Matthews, 14 Mo. 134; State v. Proctor, 90 Mo. 336; State v. Walker, 221 Mo. 515; State v. Grant, 79 Mo. 117; State ex rel. v. Willis, 66 Mo. 133; Starr v. State, 149 Ind. 594; Meagher v. Drury, 89 Ia. 372; Commonwealth v. Duff, 87 Ky. 588. (3) Such a general provision has the same effect as a saving clause in the repealing statute. R. S. 1909, secs. 8060, 8062; Lewis's Sutherland on Stat. Const. (2 Ed.), sec. 287; Treat v. Strickland, 23 Me. 236; Hine v. Pomeroy, 39 Vt. 223; State v. Boyle, 10 Kan. 116; State v. Crawford, 11 Kan. 46; McCuen v. State, 19 Ark. 635; People v. Sloan, 2 Utah, 329; McCalment v. State, 77 Ind. 250; Barton v. Gadsden, 79 Ala. 496; Grace v. Donovan, 12 Minn. 580; Mongeon v. People, 55 N.Y. 615; State v. Hardman, 16 Ind.App. 359. (4) The filing in the office of the clerk of the county court of Wayne County, of a tax-paying citizens' petition asking for an election to vote bonds, adjudication of the sufficiency thereof by the county court, the ordering of an election and giving notice thereof, holding the election, and determining the result thereof, was an act done, a right accrued, a right established and a proceeding had and commenced previous to the time of taking effect of the act repealed under which the bonds are sought to be issued, and within the meaning and provisions of Sec. 8062, R. S. 1909. State ex rel. v. County Court, 53 Mo. 128; State ex rel. v. Topeka, 68 Kan. 179; Ex parte McGee, 33 Ore. 165. (5) Article 4, Chap. 15, R. S. 1909, is not in violation of Section 12 of Article 10 of the Constitution of Missouri, because it provides for the issue of bonds payable more than twenty years after the original debt was created. State to use v. Walker, 193 Mo. 693. (a) The court must presume that a statute is constitutional, and the burden is on him who asserts its unconstitutionality to show its invalidity, beyond a reasonable doubt. Shohoney v. Railroad Co., 231 Mo. 131; State v. Webber, 214 Mo. 272; State ex rel. v. Johnson, 234 Mo. 338; State ex rel. v. Williams, 232 Mo. 56; State v. Distilling Co., 136 Mo. 219; State ex rel. v. Burton, 266 Mo. 711; State ex rel. v. Walker, 193 Mo. 693. (b) Sec. 1249, R. S. 1909, under which the refunding bonds are issued, has been held constitutional by this court in the only case in which its constitutionality has been attacked in the third of a century that the act has been on the statute books, and during all this time the constitutionality thereof has been recognized by the people and the lawyers of the State, and millions of dollars of refunding bonds have been issued thereunder. State ex rel. v. Walker, 193 Mo. 693.

Frank W. McAllister, Attorney-General, Shrader P. Howell and John T. Gose, Assistant Attorneys-General, for respondent.

(1) "A subsequent statute revising the whole subject matter of a former one and evidently intended as a substitute, although it contains no express words to that effect, must, on the principles of law, as well as in reason and common sense, operate to repeal the former." State v. Roller, 77 Mo. 120; Yawl v. Gillham, 187 Mo. 45; State v. Crane, 202 Mo. 80-81; State ex rel. v. Shields, 230 Mo. 102; City v. Sperry, 189 Mo.App. 483. An examination of the Laws of 1917 discloses that the law in question was repealed both by express words and by implication. Laws 1917, p. 442. Not only is the statute repealed by express words but the new act covers the entire subject-matter and shows upon its face that it was intended as a substitute for all existing law upon this subject. Laws 1917, pp. 444-477. (2) The repeal of a statute has the effect of blotting it out as completely as if it had never existed and of putting an end to all proceedings under it. Vance v. Rankin, 194 Ill. 627; 1 Lewis's Sutherland on Statutory Construction, p. 552; Sec. 478, p. 680, Endlich on Interpretation of Statutes. Only vested rights escape the effect of this rule. Any right not vested falls with the repeal of the statute on which it rests. Bishop on Written Laws, sec. 177-A; Bailey v. Mason, 4 Minn. 546; Butler v. Palmer, 1 Hill (N.Y.), 324; 1 Lewis's Sutherland on Statutory Construction, p. 546; Smith's Commentaries on Constitution Construction, p. 896. (3) To escape the effect of a repeal, the repealing act must contain a saving clause, or there must be a general statute directed to that end. There is no saving clause in the Repealing Act of 1917. Relator must depend upon Sections 8060 and 8062, R. S. 1909, to preserve the steps taken under the old law. Said sections were not intended to preserve, and do not preserve proceedings of this character. They relate to and preserve only matters connected with and growing out of judicial matters and have no reference to proceedings outside of steps taken in actions pending. Gordon v. State, 4 Kan. 496; Moorewood v. Hollister, 6 N.Y. 319; Fisk v. Kenne, 35 Me. 349; Butler v. Palmer, 1 Hill (N.Y.), 324; County Commissioners, 30 Me. 222; Erwin v. United States, 37 F. 270; People v. White, 14 How. Prac. 501; Hopewell v. State, 22 Ind.App. 489; Strom v. Montana Cent. Ry. Co., 81 Minn. 346. (4) The policy of this State is that municipal indebtedness should not be created to extend beyond a period of twenty years. Sec. 12, art. 10, Mo. Constitution; Kane v. Charleston, 161 Ill. 179. The law under which these bonds sought to be registered were refunded permits the refund bond to run for thirty years from the date of issuance, and is, in this, repugnant to the policy of the State expressed in Section 12 of Article 10 of the Constitution. Sec. 1249, R. S. 1909. The provisions of Section 1249 which permits a refunding without the submission of the question to the people is repugnant to the Constitution, which provides that no political corporation or subdivision shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose. Sec. 12, Art. 10, Mo. Constitution. (5) The refunding bonds in this case were issued to evade the law. Section 1249, if constitutional, still presupposes a bona-fide issuance of refunding bonds, and not a mere subterfuge or evasion to procure indirectly bonds which could not be issued directly. The refunding bonds in this case were issued to comply with an agreement made between the county officials and the bond purchaser, prior to the purchase of the original bonds. In plain language, they were issued in the furtherance of a scheme to obtain a different kind of bond from that which could be issued under the law. "In disposing of it, it must be borne in mind that the law regards substance, rather than form -- the spirit and essence of a thing, rather than the mere dry letter. One may not do by indirection what he cannot do directly; or, as said by Valliant, J., in a case just handed down, 'If it could not be done on a straight line, it could not be done in a circle.'" Cobe v. Lovan, 193 Mo. 250; State v. Kenton, 43 Mo. 53. Moreover, the county officials had no authority to make such a contract, and both the contract and the bonds issued pursuant thereto are void.

WALKER, J. Bond, J., concurs in paragraph 2 and result; Faris, J., dissents.

OPINION

In Banc.

Mandamus.

WALKER J.

This is a proceeding in mandamus to require the respondent as State Auditor to register an issue of two-hundred thousand dollars refunding bonds of Wayne County.

These bonds were issued under the provisions of Section 1249, Revised Statutes 1909, authorizing the funding of bonded or judgment indebtedness. The original bonds had been issued by virtue of Sections 10520 to 10525, Revised Statutes 1909 which grant the power and define the method to be pursued by the people of a...