State v. Hackmann

• Decision Date: 22 December 1917
• Docket Number: No. 20366.,20366.
• Citation: 272 Mo. 600,199 S.W. 990
• Parties: STATE ex rel. WAYNE COUNTY et al. v. HACKMANN, Auditor.
• Court: Missouri Supreme Court

199 S.W. 990

272 Mo. 600

STATE ex rel. WAYNE COUNTY et al. v. HACKMANN, Auditor.

No. 20366.

Supreme Court of Missouri. In Banc.

December 22, 1917.

Original mandamus proceedings by the State, at relation of Wayne County and others, against George E. Hackmann, Auditor. Peremptory writ issued.

D. N. Holladay and V. V. Ing, both of Greenville, S. G. Ray, and Charles & Rutherford, of St. Louis (Richard F. Ralph, Pros. Atty., of St. Louis, E. G. Simrall, Pros. Atty., and Ralph Hughes, both of Liberty, Craven & Moore, of Excelsior Springs, and Martin E. Lawson, of Liberty, in support of motion to advance, amici curiæ), for relators. Frank W. McAllister, Atty. Gen., and Shrader P. Howell and John T. Gose, Asst. Attys. Gen., for respondent.

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, R. S. 1909, authorizing the funding of bonded or judgment indebtedness. The original bonds had been issued by virtue of sections 10520 to 10525, R. S. 1909, which grant the power and define the method to be pursued by the people of a county and their administrative agent, the county court, in the issuance of bonds for the improvement of public roads. One-half of the aggregate amount of this original issue was in the denominations of $100 each, and bore interest at the rate of 4½ per cent. per annum, payable annually, and to mature within 20 years after their date, subject to prior payment at any time within 20 years upon the call of the county as provided for in section 10522, R. S. 1909. These sections were repealed by an act approved April 9, 1917 (Laws 1917, p. 442), and statutes kindred in their nature and conferring similar powers were enacted in lieu thereof (sections 83, 84, and 85, Laws 1917, p. 470).

The preliminary steps necessary to authorize the issuance of the original bonds in conformity with the statute then in force had been complied with prior to its repeal, but the bonds were not issued until April 29, 1917. In June, 1917, they were presented to the respondent for registration as required by section 1275, R. S. 1909, and were by him registered. Soon thereafter they were sold and paid for at their par value.

At the time of the execution, and before the delivery of the original bonds to the purchaser, the county court levied a tax upon the taxable property of the county in an amount sufficient to pay the interest and a portion of the principal each year upon said bonds in conformity with the conditions of their issuance.

Afterwards, on June 10, 1917, the county court called for the payment of all of said bonds, and in order to provide funds necessary to pay off and retire the same prepared and executed under the provisions of said section 1249, refunding bonds in the aggregate sum of $200,000, each of the face value of $1,000, dated May 1, 1917, and bearing interest at the rate of 4¼ per cent. per annum, or one-fourth of 1 per cent. less than the interest required to be paid on the original bonds, which interest was made payable semi-annually, the bonds maturing in the year 1922, and serially thereafter to the year 1937. These refunding bonds were presented to the respondent as auditor of the state in compliance with the requirements of the law in this behalf, and their registration was by him refused. Hence this proceeding.

That the steps taken antecedent to the issue of the original bonds were in conformity with the law then in force is conceded. Respondent contends, however, that the writ should not issue for the following reasons: (1) That the statute under which the original bonds were issued was expressly repealed before such bonds were actually issued, registered, and negotiated; (2) that section 1249, under which it is sought to refund these bonds, is unconstitutional; and (3) if not unconstitutional, the attempt at refunding is not within the intent and purpose of the statute, and as a consequence is unauthorized.

I. As a general rule, a statute expressly repealed is thereby abrogated, and all proceedings commenced thereunder which have not been consummated are rendered nugatory unless the repealing act is modified by a saving clause. Despite the fact that the courts with that conservative spirit which looks to permanence in the law, do not favor repeals (St. Louis v. Kellman, 235 Mo. 687, 139 S. W. 443), there is, except for modifications which may be effected by a saving clause, but one unqualified exception to the rule as above announced, and that is where a vested right is involved. Present here, this character of right may serve to solve the matter at issue. That statutes authorizing the issuance of bonds for the construction and improvement of highways are remedial in their nature seems beyond question. Although they result in the creation of a burden, they confer a benefit. The standard of civilization of a people may well be marked by the condition of their roads. Well constructed, they facilitate travel, thereby encouraging a more extended intercourse which is promotive of intelligence, and at the same time facilitate trade upon which all material prosperity is based. However, the public nature and salutary character of these statutes will not alone suffice to render the rights they may confer, if not consummated, vested. By a "vested right" we mean one which is absolute, complete, and unconditional (Orthwein v. Insurance Co., 261 Mo. loc. cit. 665, 170 S. W. 885), to the exercise of which no obstacle exists, and which is immediate and perfect in itself and not dependent upon a contingency (Young v. Jones, 180 Ill. loc. cit. 221, 54 N. E. 235; Bailey v. Phila., etc., R. R., 4 Har [Del.] loc. cit. 400, 44 Am. Dec. 593; Day v. Madden, 9 Colo. App. 464, 48 Pac. 1053; Royston v. Miller [C. C.] 76 Fed. loc. cit. 53). The facts do not sustain the conclusion that such a right exists here. While a right existed which had been partly executed at the time of the repeal of the statute, it was, at best, inchoate or initiatory in its nature; its consummation being dependent upon the contingency of the issuance of the bonds and the registration of same. This being the nature of the right, it does not furnish authority for the exercise of the mandatory power of the court.

Limited to this reason alone, the conclusion would be justified that it was the purpose of the Legislature in the enactment of the repealing law to obliterate or destroy the power of counties to issue bonds to provide funds for road purposes; and in the absence of a saving clause to have a like drastic effect upon this power when partly exercised under the statute repealed. No special saving clause was attached to the repealing act. Except by way of emphasis to give explicit application to general laws, such special saving clause was unnecessary. A repealing statute which, construed alone, would paralyze partly executed powers, is, under our legislative system, so modified by sections 8060 and 8062, R. S. 1909, as to perpetuate such powers to the extent of authorizing the completion or consummation of the purpose sought to be effected under a former law. Section 8060 so far as applicable to the case at bar is as follows:

"Nor shall any law repealing any former law, clause or provision be construed to abate, annul, or in any wise affect any proceedings had or commenced under or by virtue of the law so repealed, but the same shall be as effectual and be proceeded on to final judgment and termination, as if the repealing law had not passed, unless it be otherwise expressly provided."

This court, in Rogers v. Railroad Co., 35 Mo. 153, discussing a question as to the modifying effect of said section upon a repealing statute, said, in effect,...