Rev. St. 1899 § 5157, as amended by Acts 1901, p. 52, authorizes school districts to refund any indebtedness at a lower rate of interest, and provides that no refunding bonds shall be payable in less than 5 nor more than 30 years from their date. Const. art. 10, § 12, declares that any school district incurring any indebtedness shall, before or at the time of so doing, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due and also constitute a sinking fund for payment of the principal within 20 years from the time of contracting the same. Held, that where, by inadvertence, no tax was levied for the payment of bonds issued by a school district, the action of the district in issuing refunding bonds under the statute in order to liquidate the former bonds was not violative of the Constitution, though the effect of such action was to defer payment more than 20 years from the contracting of the debt.
In Banc. Mandamus by the state, on the relation of Thomas Proctor, and others, to compel R. W. Walker and another, as members of the school board of the school district of the city of Monroe, to execute certain refunding bonds. Writ awarded.
This is an original proceeding in this court in which the relators ask the court to issue its writ of mandamus commanding and requiring respondents to sign and execute certain refunding bonds as ordered by the school board of the school district of the city of Monroe, in the state of Missouri. The facts upon which relators predicate their right to the writ sought in this proceeding are thus stated in the petition: "Now at this day come relators, and, leave of court first being had, file their first amended petition and respectfully represent and show to the court that they, along with the respondent R. W. Walker, herein, are the duly elected, qualified, and acting members of the school board of the school district of the city of Monroe in the state of Missouri, and that they have been such for many months last past; that the other respondent, Thomas J. Sharp, is the duly appointed, qualified, and acting clerk of said school board of the said school district of the city of Monroe, Mo. The relators further state that on July 1, 1892, the said school district being duly authorized thereto by a vote of more than two-thirds of the qualified voters of the said district, issued bonds of the said district in the amount of $10,000 in the aggregate, bearing date of July 1, 1892, bearing interest at 5 per cent. per annum, payable semiannually, said bonds and all of them being due and payable July 1, 1912, with an option to pay the same or any part thereof at any interest paying date after 10 years from the issue thereof; that the said school district through its said board, on July 15, 1892, being duly authorized thereto by a vote of more than two-thirds of the qualified voters of said district, issued the bonds of the said district to the amount of $5,000, which said bonds bore date of July 15, 1892, and interest at the rate of 5 per cent. per annum, payable semiannually; said bonds were due and payable July 15, 1912, with an option to pay the same on any interest paying date after five years from the issue thereof; that on the 2d day of May, 1893, the said school board of the said district, being duly authorized thereto by a vote of more than two-thirds of the qualified voters of the said district, issued the bonds of the said district in the amount of $3,000, which said bonds bore interest at the rate of 7 per cent. per annum, and were payable in five years, with the option to pay the same at any time; that at the time each of said issue of bonds was made and ordered, provision was made of record by said district for the collection of an annual tax sufficient to pay the interest on such indebtedness as the same fell due, and to constitute a sinking fund for the payment of the principal thereof within the time same was contracted to be paid; that by failure or inadvertence of the officers the said tax has not been levied and collected to provide for the sinking fund; that it would now be burdensome and oppressive on the taxpayers of said district to pay the interest on said debt and provide for and pay the principal when the same falls due under the original issue of bonds; that the said three issues of bonds amount in the aggregate to $18,000, and constitute the only debt of said district and do not now and never did since their issue exceed five per centum on the value of the taxable property of said district, and were each and all issued for the purpose of erecting school buildings and furnishing the same in said school district and for no other purpose, and the proceeds of said bonds were, in fact, used for said purpose, and said bonds are each and all valid, binding, and subsisting obligations on the said district, and there is now in the treasury no money to pay the principal of the said bonds or to form a sinking fund to pay the same at the time of their maturity; that the present school board constituted as above set forth under and by authority of section 5157, Rev. St. 1899, as amended in the act of 1901, p. 52, with the respondent R. W. Walker, concurring and voting therefor, on November 15, 1905, duly passed and placed of record an order at a regularly called meeting of the said board, at which meeting of the board all the members thereof were present, to refund all said issues of bonds amounting to $18,000, and to issue refunding bonds therefor, to bear date December 1, 1905, and to bear interest at a lower rate, to wit, at the rate of 4 per cent. per annum, payable semiannually, which said refunding bonds were made payable 20 years after the date thereof, and at the same time said board, by an order of record, made provision for the collection of an annual tax
sufficient to pay the interest on said refunding bonds as the same fell due and to constitute a sinking fund for the payment of the principal thereof within the time the same was contracted to be paid; that the said board negotiated and contracted to sell, and did sell, the whole of the said issue of the said refunding bonds of $18,000; that the said bonds were of the denomination of $500 each, payable to bearer, and were negotiated and sold for not less than their par value; that the said bonds were ordered to be perpared, and the same were ordered to be signed and issued for delivery by said respondents, R. W. Walker, as president of the school board, and by Thomas J. Sharp, as the clerk of the said board; that on the 1st day of November, 1905, under section 5166, Rev. St. 1899, the said board ordered that notice be filed with the State Auditor, that said issues of $10,000, $5,000, and $3,000, as above set forth, were called for redemption; that said notice was filed with the State Auditor on the 5th day of November, 1905; that the said issue of $10,000 bonds was called for payment on January 1, 1906; that said issue of bonds for $5,000 was called for payment on the 15th day of January, 1906; that the said issue of bonds of $3,000 was called for payment on the 1st day of January, 1906; that the said board further caused a notice of said call of the said bonds for payment to be duly published in the Globe-Democrat, a newspaper of large circulation, published in the city of St. Louis, Mo.; that the money and funds to meet and pay for said bonds aggregating $18,000, so issued as aforesaid and called for payment as aforesaid, was to be procured from the issue and sale of the said refunding bonds for $18,000, ordered as aforesaid, on the 5th day of November, 1905; that said refunding of said debt and bonds would lighten the burdens of the taxpayers of said district and would better the financial situation of said district. These relators further state that said refunding bonds have been prepared and presented to the said respondents to be signed and executed by them, and the law requires that said bonds be signed and executed by them as the officers of the said board of the said school district, and that the respondents have been requested to sign and execute the said bonds as ordered by the said board, but they have failed and refused, and still fail and refuse to sign and execute the same as ordered by the said board; and these relators say that they and the said school district have no means with which to meet and pay the said bonds heretofore issued by the said district and called as aforesaid for payment, and that they are without remedy in the premises by or through ordinary process or proceedings at law; that by reason of the premises the matters herein are of far more than ordinary magnitude and importance to a great number of people, and any delay therein, such as bringing this proceeding in the circuit court at the first instance, would work an irreparable injury to the said district and to the inhabitants thereof, and these relators therefore pray this court to award against the said respondents an order of mandamus commanding and requiring them to sign and execute said refunding bonds as ordered by the school board of the said district, and for such other process, orders and remedies as may to the court seem to be meet and just."
To this petition respondents filed their return and answer, which is as follows: "Comes now the respondents in the above-entitled cause, and waive an alternative writ or any service herein, and for answer to the petition in said above-entitled cause, state that they admit each and every allegation therein contained. Respondents, further answering, admit that the said R. W. Walker voted to refund the outstanding bonds mentioned in relator's petition. Respondents, further answering, state that the proposed...
