State v. Hackmann

• Decision Date: 06 April 1922
• Docket Number: No. 23404.,23404.
• Citation: 293 Mo. 313,240 S.W. 135
• Parties: STATE ex rel. CITY OF BOONVILLE v. HACKMANN, State Auditor.
• Court: Missouri Supreme Court

240 S.W. 135

293 Mo. 313

STATE ex rel. CITY OF BOONVILLE v. HACKMANN, State Auditor.

No. 23404.

Supreme Court of Missouri, in Banc.

April 6, 1922.

Original proceeding in mandamus by the State, on the relation of the City of Boonville, against George E. Heckmann to compel respondent, as State Auditor, to register certain bonds of the relator. Peremptory writ issued against respondent.

Chas. W. Journey, City Atty., of Boonville (John Cosgrove, of Boonville, of counsel), for relator.

Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for respondent.

DAVID E. BLAIR, Judge.

Original proceeding in mandamus to compel respondent as state auditor to register certain bonds of the city of Boonville, a city of the third class, issued for the purpose of improving Fifth street within the limits of said city from High street north by building thereon an approach to a toll bridge proposed to be built by the Old Trails Bridge Company, a private corporation, across the Missouri river, the south end of which bridge will rest on the river bank at the north end of said Fifth street.

No alternative writ was issued. Respondent filed answer to the petition as and for the writ, and relator filed reply thereto. The essential facts not admitted by the pleadings are included in a stipulation which, among other things, provides for the submission of the case upon the pleadings, the stipulation, and printed briefs and arguments of counsel without oral argument. The case is thus before us.

There are at present no bridges over the Missouri river between Kansas City and Jefferson City, except exclusively railroad bridges, and it is in response to the strong demand for a bridge that a corporation has been organized, for the purpose of constructing and operating a toll bridge at Boonville, and its stock has been sold extensively to the residents of neighboring counties. It will be necessary to improve Fifth street in said city by building an approach to the south end of said proposed bridge.

Without going into unnecessary details, it will be sufficient to say that an ordinance was passed by the council of said city, submitting a proposition to the qualified voters of said city to issue bonds in the sum of $50,000 to defray the cost of improving Fifth street by building an approach to said proposed bridge; the entire cost of such improvement to be borne by the city. An election on said proposition was held December 20, 1921, and more than two-thirds of the votes cast at said election were found to be in favor of the proposition. No question is raised concerning the regularity of such election or the prior or subsequent proceedings of the city council, except as to the sufficiency of the notice of the election. The bond issue in question added to the existing indebtedness of said city is within the constitutional limitation. It is therefore unnecessary to detail further facts, except such as become pertinent in the discussion of the issues raised.

I. Respondent contends that the building of an approach by the city to a bridge owned and controlled by a private corporation is the loaning of its credit by said city in aid of a private corporation, and that relator is without power to issue bonds for that purpose because of the provisions of section 6, art. 9, and section 47, art. 4, of the Constitution of Missouri. The portions of said section 6, art. 9, relevant here, are as follows:

Section 6, art. 9. "No county, township, city or other municipality shall hereafter become a subscriber to the capital stock of any railroad or other corporation or association, or make appropriation or donation, or loan its credit to or in aid of any such corporation or association. * * *"

It is really only the provisions of the above section containing the prohibition of such grants of public money by cities which need be considered. Section 47, art. 4, prohibits the authorization by the Legislature of such acts. No act of the Legislature is here involved. Respondent cites no authority in support of his contention. Fie admits it is not the purpose of the bond issue to make a direct loan or grant of public money to the toll bridge company. His contention is that it is an indirect loan or grant and for that reason in violation of said sections.

In construing a statute or constitutional provision, a study of pre-existing conditions and a consideration of the mischief to be remedied by the enactment of the statute or constitutional provision lend great aid in its proper understanding. It is common knowledge that counties, townships, and cities in this state and elsewhere were at one time induced to vote bond issues in large amounts in aid of much desired railroad construction, some of which was never built, and that such issues frequently involved such counties, townships, and cities in a hopeless burden of debt. It was to end such profligacy that the provisions of section 6, art. 9, and section 47, art. 4, were placed in the Constitution of 1873. The Constitution of 1865, section 14, art. 11, prohibited the General Assembly from authorizing any county, city, or town to become a stockholder in or to loan its credit to any corporation without the assent of two-thirds of the qualified voters at an election at which such proposition should be submitted. Bitter experience resulted in the absolute prohibition of such financial assistance in the Constitution of 1875.

The purpose of the bond issue under consideration is in no wise similar to the bond issues and loans of public credit at which the above sections were leveled. It is true the private corporation owning and operating the proposed toll bridge will be unable to profit by its investment therein unless approaches to such bridge are built, and to that extent the bond issue is of benefit to such corporation. The great purpose of the construction of the bridge is for the public benefit—to facilitate public travel over the public highways. The right to collect toll charges is a mere incident. In order to have such bridge built, it is necessary, either that bonds be issued by the proper political subdivisions to pay for its construction and that sufficient taxes be levied thereafter to provide a sinking fund for the retirement of the bonds, to pay interest thereon and to care for its current maintenance, or that private interests furnish the means therefor and be permitted to make toll or other charges for its use sufficient to pay a reasonable return on the investment, to keep it in proper repair and to make provision...