Union Trust & Savings Bank v. City of Sedalia

• Decision Date: 14 August 1923
• Citation: 254 S.W. 28,300 Mo. 399
• Parties: UNION TRUST & SAVINGS BANK, Appellant, v. CITY OF SEDALIA
• Court: Missouri Supreme Court

254 S.W. 28

300 Mo. 399

UNION TRUST & SAVINGS BANK, Appellant, v. CITY OF SEDALIA

Supreme Court of Missouri

August 14, 1923

Appeal from Pettis Circuit Court. -- Hon. Hopkins B. Shain, Judge.

Affirmed.

Montgomery & Rucker, Lubke & Lubke and Leahy, Saunders & Walther for appellant.

(1) Sec. 8275, R. S. 1919, under authority of which the bonds in suit were issued, authorizes the issuance of bonds "to an amount not exceeding half the current revenue for the fiscal year." (2) The word "year," as used in Sec. 12, Art. X, Constitution of Missouri, means fiscal year. Glasgow v. Rowse, 43 Mo. 479. (3) A fiscal year is the financial year at the end of which accounts are balanced the year by which accounts are reckoned, or the year between one annual time of settlement or balancing of accounts and another. Black's Law Dict.; Rapalje & Lawrence's Law Dict.; Bouvier's Law Dict.; Funk & Wagnalls' New Standard Dict.; Webster's International Dict. (4) Since the statute does not specifically provide what shall be the fiscal year of a city of the third class, the fiscal year depends upon the time when it is the duty of the city's fiscal officers to balance the books and make their annual report of the city's financial condition and present their estimates of the city's financial needs for the ensuing fiscal year State ex rel. v. Allison, 155 Mo. 325. (5) The fiscal year of a city of the third class at the time of the issue of the bonds in controversy began June 1st and ended June 30th. (a) The treasurer's annual financial report to the city council must be made on or before July 1st, at which time he must report the amount of bonds falling due for which provision must be made and also the amount of interest to be paid during the next fiscal year. Sec. 5830, R. S. 1899; Sec. 8285, R. S. 1919. (b) The city treasurer is the fiscal officer of the city to whom the city collector pays over monthly all moneys received by him. Secs. 5814, 5825, R. S. 1899; Secs. 8269, 8272, R. S. 1919. (c) The mayor is required to make a written report to the council on or before July 1 of each year and to furnish an estimate of the necessary appropriations required to meet the city's wants for the coming year, and an estimate of the probable income for said period. Sec. 5764, R. S. 1899; Sec 8219, R. S. 1919. Sec. 8275, R. S. 1919, is not violative of but in harmony with, Sec. 12, Art. X, Constitution. Leavenworth Nat. Bank v. Reilly, 97 Kan. 817; State v. Jennings, 68 S.C. 411; Moose v. State, 49 Ark. 499.

Paul Barnett for respondent.

(1) The allegation in the petition that the city had not, during the fiscal year beginning July 1, 1899, and ending June 30, 1900, become indebted in any manner in an amount in excess of the income and revenue provided for said year, was equivalent to an allegation that the city had become indebted in excess of the income and revenue of said city provided for said year, unless the year was calculated upon a fiscal year beginning July 1st, under the maxim expressio unius est exclusio alterius. 25 C. J. 220. The doctrine is not confined to the construction of statutes, but is a doctrine of construction of written instruments of general application. Hackett v. Amsden, 56 Vt. 201; Whitehead v. Syndicate, 105 Va. 463. (2) When by an unnecessary allegation, the plaintiff shows he has no cause of action, the defendant may demur. Com. Dig. Pleader, c. 29; Bac. Ab. Pleas, 1, 4; see 2 East, 451; 4 East, 400; Dougl. 667; 2 Bl. Rep. 842; 3 Cranch, 193; 2 Dall 300; 1 Wash. 257. In Missouri the rule has been adopted that in passing upon the sufficiency of a pleading the court takes into consideration that which is specifically alleged and that which is necessarily implied therefrom. Miller v. Engle, 185 Mo.App. 558; State ex rel. Perkins v. Long, 275 Mo. 169. (3) The word "year" as used in Section 12, of Article 10 of the Missouri Constitution means a year beginning January 1st and ending December 31st. State ex rel. v. Allison, 155 Mo. 325; State ex rel. v. Appleby, 136 Mo. 438; Wilson v. Knox Co., 132 Mo. 387. (4) The Missouri cases holding that the year referred to in the constitutional provision is the calendar year are uniform. All of the decisions were in cases against a county, and it is claimed by appellant that this is a case against a city, and that the statutory provisions governing the fiscal management of a city are different from those governing a county, and that for this reason the decisions of the Supreme Court do not apply. This contention is unfounded, because: (a) The statutory provisions providing for the management of both city and county affairs are enacted without regard to either a fiscal year or a calendar year so far as fiscal transactions are concerned. (b) The Legislature has never provided any fiscal year for the city either by express statute or by implication, but has spread the different annual, biennial and monthly fiscal transactions throughout the calendar without regard to either a calendar or fiscal year. (c) The statutes of Missouri provide that the word "year" shall mean a calendar year unless otherwise expressed. Sec. 7058, R. S. 1919. This statute was in force at the time that the Constitution was adopted in 1875. 2 Wagner's Statutes of 1872, p. 887, sec. 6. The Missouri statutes also provide that the fiscal year of the State shall commence on January 1st and terminate on the 31st day of December in each year, and the books, accounts and reports of the public officers shall be made to conform thereto. Sec. 13295, R. S. 1919. This section was also in force when the Constitution was adopted in 1875. Laws 1868, p. 178. (d) The reasoning employed by the plaintiff in attempting to establish that a fiscal year, other than the calendar year, was intended by the Missouri Constitution, is the reasoning of the dissenting opinion in the case of the State ex rel. v. Allison, 155 Mo. 325, and therefore such reasoning has been expressly repudiated by the Supreme Court. Every statute which provides for some city fiscal transaction, not based upon a calendar year, has its parallel in a statute governing counties. Therefore any attempts to establish that the Constitution refers to a fiscal year as to cities of the third class, in an attempt to repudiate the decisions of the Supreme Court construing the word "year" in cases against counties.

GRAVES, J. James T. Blair, David E. Blair, Ragland and Walker, JJ., concur; Woodson, C. J., dissents; White, J., not sitting.

OPINION

In Banc

GRAVES J.

-- This is an action upon fifteen bonds issued by the city of Sedalia on July 7, 1899. Plaintiff (appellant) is the alleged owner and holder of these bonds. The bonds are in the denomination of $ 1000 each, and the petition is therefore in fifteen counts -- a count for each bond.

The counts are identical except as to the number of the particular bond mentioned in the different counts. The case passed off upon a demurrer to the petition, and a statement of the contents of these instruments would not be shorter than the pleadings themselves, as counsel have plead with brevity. The first count of the petition reads:

"Plaintiff for the first cause of action, states:

"1. That the City Council of the said City of Sedalia, acting under the provisions of Section 70 of an Act of the 37th General Assembly of the State of Missouri in regard to cities of the third class, duly approved, April 19, 1893, which said section is now Section 8275, Revised Statutes 1919, did, on June 19, 1899, duly enact an ordinance entitled, 'An Ordinance providing for the issuing of fifteen current revenue bonds of the city of Sedalia for the year 1899, and providing for the payment thereof,' which said ordinance was duly approved by the mayor of said city on June 20, 1899, and provided among other things that the mayor and city clerk should sign and execute and attest fifteen bonds of the city of Sedalia, Missouri, of the denomination and par value of $ 1,000 each, numbered respectively 1 to 15, which bonds should bear interest at the rate of six per cent per annum, payable semi-annually, and should be dated July , 1899, and due and payable one year after date and should be payable to , or bearer, and that said bonds upon being executed should be sent by the city clerk to the Auditor of the State of Missouri for registration in accordance with the statutes in such cases made and provided, and when properly registered, should be delivered to the city treasurer, who should be charged therewith, and that the city treasurer was authorized to sell said bonds for not less than their face value and that sufficient taxes collected for current revenue for the year 1899 should be set aside by the city treasurer as security for the payment of said bonds.

"2. That after the enactment and approval of said ordinance of June 19, 1899, and pursuant to the provisions thereof, W. C Overstreet, the mayor of said city, and John W. Hartshorn, the clerk of said city, duly signed and executed a certain bond of said city, dated July 7, 1899 (a duly verified copy of which is herewith filed), numbered 1, wherein the said city, the defendant herein, under the hand of its said mayor and city clerk, and attested by its corporate seal, promised to pay to or bearer, at the counter of the Merchant's Laclede National Bank of the City of St. Louis, State of Missouri, the sum of $ 1,000, together with interest at the rate of six per cent per annum, the principal to be payable at the end of one year and the interest in equal installments at the end of six and twelve months from the date thereof on presentation of the coupons thereto attached. That said bond further recited that it is issued under and in pursuance of Section 70 of an Act of the 37th General Assembly of the State of...