The State ex rel. St. Louis County v. Gordon

• Decision Date: 23 October 1916
• Parties: THE STATE ex rel. ST. LOUIS COUNTY and JOHN WIETHAUPT et al., Judges, v. JOHN P. GORDON, State Auditor
• Court: Missouri Supreme Court

188 S.W. 160

268 Mo. 713

THE STATE ex rel. ST. LOUIS COUNTY and JOHN WIETHAUPT et al., Judges, v. JOHN P. GORDON, State Auditor

Supreme Court of Missouri

October 23, 1916 ^[*]

Writ Denied.

Richard F. Ralph, George Barnett and Thomas N. Dysart for relators Collins, Barker & Britton, A. E. L. Gardner, B. B. Watkins C. K. Rowland, Harry B. Hawes and Chas. W. Bates, amici curiae, of counsel.

(1) The organic law of this State is not like the Federal Constitution, a grant of power, but is simply a limitation upon legislative power which the Legislature otherwise possesses; and the Legislature may enact any law which does not contravene the Federal or State Constitution. State ex rel. v. Burton, 182 S.W. 748; State v Wilson, 265 Mo. 13; Harris v. Bond & Mortgage Co., 244 Mo. 686; State v. Wear, 145 Mo. 496; State ex rel. v. Sheppard, 192 Mo. 506; Glasgow v. Rowse, 43 Mo. 479; Cass County v. Jack, 49 Mo. 199. (2) A part of a statute may be constitutional and a part unconstitutional; in which event, if that part of it which is unconstitutional can be eliminated without destroying the law, then it will be declared valid. State ex inf. v. Duncan, 285 Mo. 26; State ex rel. v. Taylor, 224 Mo. 472; State ex rel. v. Gordon, 236 Mo. 176; Shively v. Lankford, 174 Mo. 548; State ex rel v. Field, 119 Mo. 612; Ensworth v. Curd, 68 Mo 285; State v. Bostwick, 136 Mo. 353; State ex inf. v. Washburn, 167 Mo. 697; Cooley's Const. Lim. (7 Ed.), pp. 246-250. (3) Sec. 10520, R. S. 1909, does not undertake to limit the indebtedness which the county may incur for road purposes, to five per cent of the value of the taxable property within said county. The said section provides that an election may be held to determine whether or not bonds of said county shall be issued for road and bridge purposes, "unless the debts of the county for said purposes already equal the maximum indebtedness said county may incur." This language simply limits the indebtedness which the county may incur to any limitation that may exist in the present or any future Constitution, and provides that no constitutional limitation shall be exceeded in the issuance of said bonds. Inasmuch as section 12, article 10, of the Constitution contains no limitation as to the indebtedness which the county may incur for road purposes, and inasmuch as section 10520 speaks prospectively and merely has reference to any constitutional limitation that may now or hereafter exist, section 10520 creates no present limitation on the indebtedness which the county may incur for road purposes. (4) Even though the language above quoted from section 10520 would indicate that it was the purpose of the Legislature to limit the indebtedness that the county may incur for road purposes to the five per cent constitutional limitation for purposes other than road, county jail and courthouse purposes, still, the act is not unconstitutional. The function of the Constitution is to create a limitation on power, and not to grant authority, and the purport and effect of section 12 of article 10 of the Constitution is to create a limitation on the power to incur indebtedness of the county in excess of five per cent of the taxable wealth of the county for all purposes, save and except for road purposes, etc. This has the effect of leaving the Legislature free to act in the matter of incurring indebtedness for road purposes, and the Legislature has the power, there being no forbidding mandate in the Constitution, to establish any limitation it may see fit, in incurring indebtedness for road purposes. (5) The title of the act is sufficient in that it is a fair forecast of the contents of the bill and its subject, so as not to mislead the lawmakers or the people, and the provisions of the bill are germane to the subject of the bill as expressed in its title. Laws 1907, p. 411; Barnes v. Kirksville, 180 S.W. 547; State ex rel. v. Ransen, 73 Mo. 86; State ex rel. v. Heege, 135 Mo. 119; Ewing v. Hoblitzelle, 85 Mo. 64; O'Connor v. Transit Co., 198 Mo. 633; Hannibal v. County, 99 Mo. 671; State ex rel. v. Meade, 71 Mo. 268; State v. Matthews, 44 Mo. 523; State v. Miller, 45 Mo. 495; State v. Doering, 194 Mo. 408; State ex rel. v. Gordon, 236 Mo. 142; Cooley on Const. Lim., p. 174. The title of the act at all events is sufficient to cover the voting and issuance of bonds for the grading, etc., of roads, which comprise the matters in this proceeding. (6) Under the Constitution and laws of this State, a municipal corporation may incur indebtedness and expend its revenues for a "city purpose," outside of the city limits as well as for such purpose within the city limits. E converso, a county may expend its revenues for a county purpose anywhere within the limits of the county. The construction of a public bridge between two cities is for a city purpose. Haessler v. St. Louis, 205 Mo. 680. Nor is it any the less a city purpose because a part of a public highway improved, is outside of the limits of the city. Skinner v. Hutton, 33 Mo. 249; Elting v. Hickman, 172 Mo. 258. To allow "any county" "to become indebted . . . for the erection of a courthouse or jail, or for the grading, constructing, paving, or maintaining of paved, graveled, macadamized or rock roads and necessary bridges and culverts therein," is by the clear and unambiguous language of the first proviso of section 12 of article 10 of the Constitution made a "county purpose." The same purpose expressed in the Constitution is expressed in the same language by the statute here involved. R. S. 1909, sec. 10520. The scheme for the construction and maintenance of a general system of roads and bridges and culverts "therein," that is, in "any county," provided for by the Constitution and the statute alike, includes a system ramifying and coextensive with the territorial limits of the county. Neither the Consitution nor the statute excepts from its operation any place within the limits of the county; and since neither the organic law nor the statute makes any such exception, the courts should not write any exception therein. Constitution, art. 10, sec. 12; R. S. 1909, sec. 10520; Laws 1907, p. 411. As a city may expend its moneys for the construction or maintenance of highways or bridges beyond the city limits, so long as such expenditure is for a city purpose, so may the county incur an indebtedness and expend the moneys derived thereby for a county purpose, anywhere within the limits of the county, including cities, towns and villages therein, when the highways or bridges so made are connecting parts or continuances of public highways of the county. State ex rel. v. County Court, 34 Mo. 546; Hannibal v. Marion County, 69 Mo. 571; State ex rel. v. Taylor, 224 Mo. 468; State ex rel. v. County Court, 128 Mo. 427. The discretion to expend the fund derived from the sale of the bonds, authorized by the provisions of the Constitution and statute in question in a manner which will be most conducive to the general welfare of the inhabitants of the county, is invested in the county court. State ex rel. v. Everett, 245 Mo. 717. Even though it be held that none of the fund derived from the sale of the bonds can be expended for the construction of that part of the public highways or bridges within the limits of any incorporated city or town, still, the provisions of section 12 of article 10 of the Constitution of Missouri and of the Act of 1907, following said section of the Constitution, here involved, are not violative of section 1 of article 14, or of article 5 of the Amendments to the Constitution of the United States. Lamar Twp. v. Lamar, 261 Mo. 185; Kelly v. Pittsburg, 104 U.S. 78. An expenditure of county moneys for an authorized county public use which is incidentally or chiefly beneficial to the inhabitants of a city in the county, is not an expenditure of county moneys in violation of the Constitution. County Court v. Griswold, 58 Mo. 192. (7) Section 10522 provides that at least one-half of one issue shall be in denominations of not to exceed $ 100. This means exactly what it says. Five hundred and twenty thousand dollars of bonds is divided into two issues, one issue being of $ 20,000 and the other issue of $ 500,000, and the making one-half of issue number one, being the $ 20,000 issue, in denominations of $ 100 is a literal compliance with the statute. An analysis of the language of the statute conclusively demonstrates that the Legislature intended to invest the county court with the discretion of dividing the bonds into as many issues as it may see fit. (8) The county court properly exercised its discretion in making an order which determines, in advance, at what specific times the bonds shall be called. The plain intendment of the statute is to the effect that the bonds shall be callable at any time within twenty years and that the time when the bonds shall be callable is a matter properly within the discretion of the county court.

John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for respondent.

(1) The organic law of the State is not a grant of power, but a limitation on power. State ex rel. v. Burton, 182 S.W. 748; McGrew v. Railroad, 230 Mo. 496; State ex rel. v. Shepherd, 192 Mo. 497; State ex rel. v Warner, 197 Mo. 650; Glasgow v. Rowse, 43 Mo. 479; State v. Railroad, 253 Mo. 650. (2) That part of Sec. 10520, to-wit, "unless the debts of the county for said purpose (road improvement purposes) already equal the maximum indebtedness said county under the Constitution may incur," is in conflict with the first proviso in Sec. 12, Art. 10, State Constitution, which forbids the Legislature placing a limitation upon the amount of indebtedness a county may incur for road improvement purposes. (3) Section 10522 is violative of sections 6 and 7 of...