State v. Gordon

• Decision Date: 28 June 1913
• Citation: 158 S.W. 683
• Parties: STATE ex rel. CITY OF DEXTER v. GORDON, State Auditor.
• Court: Missouri Supreme Court

158 S.W. 683

STATE ex rel. CITY OF DEXTER v. GORDON, State Auditor.

Supreme Court of Missouri.

June 28, 1913.

1. CONSTITUTIONAL LAW (§ 32) — SELF-EXECUTING PROVISIONS — POWER TO INCUR INDEBTEDNESS.

Const. art. 10, §§ 12, 12a, prohibiting cities from incurring any indebtedness in any year in excess of the income and revenue for that year unless at least two-thirds of the voters assent to such indebtedness, which in no event shall exceed a specified percentage of the total assessed value of the taxable property at the assessment next before the last assessment, made by the State Board of Equalization previous to the incurring of such indebtedness, are mandatory and self-executing and render void any indebtedness incurred without complying with their provisions.

2. CONSTITUTIONAL LAW (§ 35) — MANDATORY PROVISIONS — NECESSITY OF STRICT COMPLIANCE.

The rule that, unless a mandatory law is strictly complied with, the proceedings thereunder are void applies to constitutional as well as statutory provisions.

3. MUNICIPAL CORPORATIONS (§ 867) — POWER TO INCUR INDEBTEDNESS — CONSTITUTIONAL PROVISIONS.

Under Const. art. 10, §§ 12, 12a, prohibiting cities from incurring any indebtedness in any year in excess of the income and revenue for such year, unless at least two-thirds of the voters assent to such indebtedness, which in no event shall exceed a specified percentage of the total value of the taxable property at the assessment next before the last assessment previous to the incurring of the indebtedness, to create a valid indebtedness the city authorities must first ascertain the total value of the taxable property at the assessment next before the last preceding assessment and, if it be found that the indebtedness will not exceed the specified percentage of the assessed valuation, must then submit to the voters for their approval a proposition as to whether such indebtedness shall be incurred.

4. MUNICIPAL CORPORATIONS (§ 265) — POWER TO INCUR INDEBTEDNESS — CONSTITUTIONAL PROVISIONS.

Under Const. art. 10, §§ 12, 12a, prohibiting cities from incurring any indebtedness in any year in excess of a specified percentage of the total assessed value of the taxable property at the assessment next before the last assessment made by the State Board of Equalization previous to the incurring of the indebtedness, the assessments which are to be considered are the two successive antecedent completed assessments made by the State Board of Equalization previous to the incurring of the indebtedness, and an assessment as to which such board has not completed its duties, although it is then in session performing such duties, cannot be considered.

5. MUNICIPAL CORPORATIONS (§ 865) — POWER TO INCUR INDEBTEDNESS — CONSTITUTIONAL PROVISIONS.

Under Const. art. 10, §§ 12, 12a, prohibiting cities from incurring any indebtedness exceeding a specified percentage of the total assessed value of the taxable property at the assessment next before the last assessment made by the State Board of Equalization previous to the incurring of such indebtedness, where, when an ordinance was adopted directing a special election for the purpose of voting on the issuance of bonds and at the time of such special election, the State Board of Equalization had not completed its duties with respect to the assessment for 1911, the assessment for 1909 should have been taken as the basis of computation, although before the bonds were issued the assessment of 1911 had been completed, since the words "previous to the incurring of such indebtedness" have reference to the time when the authorities are required to ascertain whether the proposed indebtedness exceeds the constitutional limit and not to the time when the debt if authorized will become obligatory.

6. MUNICIPAL CORPORATIONS (§ 936) — BONDS — REGISTRATION.

Under Rev. St. 1909, § 1275, providing that, before any bond issued by any county, city, etc., for any purpose whatever shall obtain validity or be negotiated, it shall first be presented to the State Auditor who shall register it in books provided for that purpose and certify by indorsement thereon that all conditions of the law have been complied with in its issue, if that be the case, while the Auditor is not required to exercise judicial functions it is his duty to determine whether on the facts the law requires him to register the bonds.

Bond, Graves, and Faris, JJ., dissenting.

In Banc. Original mandamus proceeding by the State, on the relation of the City of Dexter, against John P. Gordon, State Auditor. Peremptory writ denied, and proceeding dismissed.

This is a proceeding by mandamus instituted by the relator, a city of the fourth class, against the respondent, the State Auditor, to compel the latter to register certain bonds. The respondent refused to register the bonds, and relator applied for and was granted an alternative writ of mandamus in this court, to which the respondent made return, alleging, among other things, that said bonds were illegally issued; a more detailed statement of said return being hereinafter set out.

The facts as disclosed by the petition are as follows: On the 16th day of July, 1912, said city enacted an ordinance directing a special election to be held on the 5th day of August, 1912, for the purpose of voting on two propositions: (1) To issue $25,000 in bonds to provide funds to construct a public sewer system; (2) to issue $28,000 in bonds to provide funds to construct a system of waterworks. Said election was held at the time appointed; the two propositions were voted on separately, and more than two-thirds of the votes cast on each were in favor of same; the returns of said election were canvassed and the result was properly declared; on the 7th day of October, 1912, the board of aldermen, by an ordinance duly enacted, authorized the issuance of said bonds; ordinances were also enacted providing for the levy of taxes to pay the principal and interest on said bond issues.

The assessed valuation of the taxable property within said city, based on the ownership as of June 1, 1909, amounted to $483,466; the assessed valuation of the taxable property therein, based on the ownership as of June 1, 1910, amounted to $557,786. Said bonds were presented to the Auditor for registration on the 7th day of October, 1912. In determining the per centum which the total amount of said bonds bore to the taxable property of said city, the board of aldermen was governed by the assessed valuation based on the taxable ownership of property therein as of June 1, 1910.

On the day of the special election for voting upon the issuance of said bonds, to wit, the 5th day of August, 1912, the State Board of Equalization was still in session performing the duties prescribed by section 11411, R. S. 1909; that is, the equalization of the values of real and personal property among the several counties of the state as for June 1, 1911, for the purpose of taxation, and said state board did not complete its duties until the 1st day of September, 1912. It is admitted that the requirements of the law in regard to the presentation of said bonds to the Auditor for registration, and the tendering of the proper fee for same, have been complied with.

Respondent's return to the alternative writ of mandamus issued herein was to this effect: (1) That said writ did not set forth facts sufficient to entitle relator to relief; (2) that it appeared on the face of said writ that, on the date of the election therein referred to, the State Board of Equalization was in session engaged in the performance of its statutory duties of equalizing the valuation of real and personal property among the several counties of the state and had not at that time equalized the assessment based on the ownership of said property as of June 1, 1911; that, under the Constitution of this state, sections 12 and 12a of article 10, relator could not become indebted to an amount exceeding 10 per centum of the valuation of its taxable property based on the ownership of same as of June 1, 1909, on which date the assessed value of the taxable property of relator amounted to $488,466; that the total amount of the indebtedness of said relator, including the aggregate amount of said bonds presented for registration, was $54,500.

The only question for consideration is whether the total valuation of the property of said city has been based on the proper year in determining whether the per centum which said bonds bear to same is within the limits of the Constitution.

Thomas N. Dysart, of St. Louis, for relator. John T. Barker, Atty. Gen., and Ernest A. Green, Asst. Atty. Gen., for respondent.

WALKER, J. (after stating the facts as above).

A review of the provisions of the state Constitution relative to the matter under consideration is necessary to determine whether the peremptory writ should be issued or the proceeding dismissed.

Sections 12 and 12a of article 10 of the Constitution prohibit any subdivision of the state, therein named, from incurring any indebtedness in any year in excess of the income and revenue for such year, unless at least two-thirds of the voters of such subdivision assent to such indebtedness, which in no event can exceed 10 per centum of the total assessed value of the taxable property of such subdivision at the assessment of same next before the last assessment made by the State Board of Equalization previous to the incurring of such indebtedness. That these sections are mandatory is evident from the purpose of their adoption, which was to definitely limit the power to incur indebtedness and to base same on an assessment sufficiently remote; that the advantages, real or speculative, derived from the incurring of such indebtedness may in no way influence the assessment of the property of such subdivision. Being mandatory, these sections should be strictly construed and each step required to be taken literally followed.

In Lewis' Sutherland on Statutory...