State v. Hackmann

• Decision Date: 22 May 1917
• Docket Number: No. 20046.,20046.
• Citation: 270 Mo. 658,195 S.W. 706
• Parties: STATE ex rel. CLAY COUNTY v. HACKMANN, State Auditor.
• Court: Missouri Supreme Court

195 S.W. 706

270 Mo. 658

STATE ex rel. CLAY COUNTY v. HACKMANN, State Auditor.

No. 20046.

Supreme Court of Missouri. In Banc.

May 22, 1917.

Original mandamus proceeding by the State, on relation of Clay County, against George B. Hackman, State Auditor. Permanent writ issued.

This is an original proceeding in mandamus brought by the relator to compel the state auditor to register a portion ($10,000) of a total $1,250,000 proposed public road bond issue of Clay county. The bonds, representing the sum of $10,000, were, upon presentation to the state auditor, refused registration. Thereupon this proceeding was instituted. The issuance of the alternative writ was waived. The pleadings consist of relator's petition, respondent's return thereto, and relator's motion for judgment upon the pleadings. The bonds are attempted to be issued under authority of section 10520 et seq., Revised Statutes 1909.

There is no dispute about the facts, which may be stated substantially as follows:

On May 15, 1916, a petition, duly signed by 100 taxpaying citizens of Clay county, was presented to the county court of said county asking that a proposition be submitted to the qualified voters thereof to bond said county in the sum of $1,250,000 for the purpose of grading, constructing, and paving the public roads in said county. It also appears that at the time the petition above mentioned was presented to the county court the petitioners also submitted to the court a plat of said county showing the location of the roads proposed to be improved, together with an engineer's estimate of the cost thereof. This plat, which by stipulation of the parties is now before us, as a part of the pleadings, shows a proposed connected system of rock roads designed to serve the needs of the whole county; the total mileage of the proposed roads being 202.3 miles. The plat shows the proposed roads as passing through several of the small incorporated towns and villages in said county, but stopping at the edge of the large cities of said county. About 5 1/3 miles of the proposed improved roads are thus included within small incorporated towns, and serve as connecting links of the total mileage proposed to be improved. It also appears as an admitted fact that about 99 miles of said proposed improved roads are within the boundaries of certain designated special road districts of said county, and connect with the other roads to be improved.

On the day that the petition was filed the county court made an order that an election be held within 45 days, to wit, on June 24 1916, for the purpose of submitting said issue to the qualified voters of said county. Said order sets forth that the county court finds that, in order to improve said public roads of said county "as located on said plat," it would be necessary to bond the county in the sum of $1,250,000. The court then sets out in its order a list of the proposed improved roads, the amount of mileage of each proposed road and the estimated cost thereof as shown by the plat and estimate filed by the petitioners with their petition. Said order states the amount of the proposed bonds and that they should bear interest at 4½ per cent. per annum from the date of issue. Said order contained the further statement:

"It is further ordered by the court that the proceeds of the sale of said bonds are to be and shall be used for the improvement of the said public roads of said Clay county, Mo., by grading, constructing, and paving same with macadam surface as petitioned for, and that the proceeds derived from the sale of said bonds shall be expended on each of the aforesaid roads in proportion to the estimates on said roads, unless such road is graded as planned therein for a smaller amount." (Italics ours.)

The order also states that:

"The debts of said Clay county, Mo., for said purpose do not equal the maximum indebtedness said county of Clay, under the Constitution, may incur."

Notice of said election was given as required by section 10520, Revised Statutes 1909. Said notice, among other things, recites that:

The proceeds of said bonds were to be used "for the purpose of grading, constructing, and paving with macadam surface about 202.3 miles of the public roads of Clay county, Mo., as fully shown by map and estimate now on file in the office of the clerk of the county court and as set out in the order of the court above mentioned."

The election was duly held and the vote was taken by proper ballot, and the vote was properly tabulated and certified and spread upon the records of said county court showing that the proposition "for increase of county indebtedness in the sum of $1,250,000 carried by a vote of more than two-thirds of the qualified voters of said county voting at said election. No question is raised concerning the form of the bonds now sought to be registered.

The assessed taxable property of Clay county is admitted to be approximately $15,000,000.

Ernest G. Simrall, Pros. Atty., Martin E. Lawson, and Ralph Hughes, all of Liberty, and Craven & Moore, of Excelsior Spring, for relator. Frank W. McAllister, Atty. Gen., and S. P. Howell, Asst. Atty. Gen. (Theodore Emerson and R. E. Ward, both of Liberty, of counsel), for respondent. James S. Simrall, of Liberty, amicus curiæ.

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

It is contended by respondent that Clay county is without authority of law to incur a bonded indebtedness in excess of 5 per cent. of its assessed taxable property, for the purpose of improving public roads in said county, and that therefore said bond issue of $1,250,000, which exceeds 5 per cent. of its assessed taxable property (approximating $15,000,000), is illegal.

We are unable to agree with this contention. It is true, as stated, that the proposed issue of bonds does exceed 5 per cent. of the assessed taxable property of said county. However, at the general election in November, 1906, by vote of the people of the state, section 12 of article 10 of the Missouri Constitution was amended by inserting, after the word "jail" in line 13, the following:

"Or for the grading, construction, paving or maintaining of paved, graveled, macadamized or rock roads and necessary bridges and culverts therein."

By this amendment the theretofore existing constitutional 5 per cent. limit upon the amount of county bonded indebtedness for road purposes was removed. This much is conceded by respondent, but he further contends that the constitutional amendment is not self-enforcing, and that the General Assembly, prior to the calling of the election for this bond issue, had passed no act which would authorize the exercise by the county of this enlarged power; that section 10520, Revised Statutes 1909, does not so authorize the county. Said section 10520 was enacted in 1907 (Laws 1907, p. 411), the first General Assembly after the adoption of the above constitutional amendment, and is as follows:

"Whenever a petition, signed by one hundred taxpaying citizens of any county in this state, shall be presented to the county court thereof, asking that a proposition be submitted to the qualified voters of the county to bond the county for the purpose of grading, constructing, paving or maintaining paved, graveled, macadamized or rock roads or necessary bridges and culverts in said county, it shall be the duty of said county court to order that an election be held, within forty-five days after making said order, to determine whether or not the bonds of said county shall be issued and sold and the proceeds thereof used for any of such purposes, unless the debts of the county for said purpose already equal the maximum indebtedness said county, under the Constitution, may incur. Said order shall contain the amount of bonds it is proposed to issue, the rate of interest they are to bear, the date of the election, and a recital that the proceeds thereof are to be used for the improvement of the public roads of the county. Notice of such election shall be given by publication in at least two newspapers of the county, said notice to be published once a week in four separate issues of each of said papers prior to said election."

This point, in a somewhat different form, was urged in the recent case of State ex rel. St. Louis County v. Gordon, 268 Mo. 713, 188 S. W. 160; but the court properly held that the point was not there presented, because (among other reasons) the proposed issue of bonds in that case did not exceed the 5 per cent. of the assessed taxable wealth of St Louis county. But here the point is involved, for the reason that, as above stated, the proposed issue exceeds 5 per cent. of the assessed taxable wealth of Clay county.

Respondent contends that the phrase "unless the debts of the county for said purpose already equal the maximum indebtedness said county, under the Constitution, may incur," used in section 10520, supra, means that the county may become indebted for road purposes to the 5 per cent. limit of other indebtedness mentioned in the Constitution, but does not give authority to go beyond that limit. It is difficult to conceive any real purpose which the Legislature intended to accomplish by the insertion of said clause. How the county could ever equal for road purposes the maximum indebtedness fixed by the Constitution, when the Constitution fixes no maximum indebtedness for such purpose, we are not told, and for ourselves have been unable to ascertain. But, even though respondent's contention were sound, yet the above clause would not act upon the facts of this case. It will be noted that section 10520, supra, authorizes the county court to act "unless the debts of the county for said purpose already equal" the constitutional limit. There is no showing in this case that the road debts of Clay county "already equal" any amount. It is the opinion of the writer that in all probability no useful application will ever be found for the above-quoted portion of said section. As...