State Ex Rel. City of Boonville v. Hackmann

*317 DAVID E. BLAIR, J. — 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 *318 $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 purArticle IX, and Section 47, Article IV, of pose because of the provisions of Section 6, the Constitution of Missouri. The portions of said Section 6, Article IX, relevant here, are as follows: Sec. 6, Art. IX: “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 sfich grants of public money by cities which need be considered. Section 47, Article IV, 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. He 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 *319 loan or grant, and for that reason in violation of said sections. In construing a statute or constitutional provision a study of preexisting 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, Article IX, and Section 47, Article IV", were placed in the Constitution of 1875. The Constitution of 1865, Section 14, Article XI, 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 main *320 tenance, 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 against inevitable depreciation. The fact, that the private corporation owning the bridge will incidentally be benefited by the improvement, is no more reason for denying the authority of the relator to issue bonds than would the fact that, the owner of a lot abutting; any ' street improved by public money profits similarly by such improvement. In either case the benefit to the general public renders insignificant the incidental benefits accruing to the private interests. While in one sense a bridge and its approaches are one structure, yet physically and for many purposes they are entirely different things. This distinction has been recognized in the case of St. Louis v. Terminal Railroad Association, 211 Mo. 364, l. c. 386. True the improvement of Fifth Street is solely for the purpose of providing an approach to the proposed bridge, and when constructed will be used almost exclusively for the purpose of going upon or leaving said bridge. Nevertheless said street throughout its entire length and up to its connection with the bridge will necessarily remain a public street, and the bridge company will have no control over it whatever. No funds secured by the bond issue will be loaned-to the bridge company or given in aid of the construction of the bridge. We' conclude, therefore, that the contention of respondent, that the issuance of such bonds is violative of said constitutional provisions must be disallowed. II. Respondent contends that relator has no power to issue bonds and to tax its citizens for the full cost of the improvement of any street or part of such street; that the only authority relator had to vote the issue of bonds under consideration is the authority found in Section 8327, Revised Statutes 1919. Said .section, so far as of interest here, is as' follows: *321 “Any city of the third class may, by ordinance passed by its common council, and approved by the mayor, provide for the issue.and sale of bonds of the city, for the purpose of paying not to exceed fifty per cent of the cost of paving, guttering and otherwise improving any alley and the roadway part of any street, . . . which would otherwise be charged wholly against the lots and tracts of land fronting and abutting the street or alley so improved, as provided by section 8323.” (Italics ours.) Section 8323, referred to in the section just quoted, was repealed in 1921, and a new section of the same number enacted in lieu thereof. [Laws 1921, first extra session, page 113.] This act became effective prior to the passage of the ordinance calling the election on theXJroposal to issue the bonds we are considering.. Section 8323, as thus re-enacted, provides that any city of the third class shall have full power and authority “to grade, pave . . . gutter, curb and otherwise improve streets and alleys, and parts of same, and to make . . . bridges.” It is further provided in the same section of the act that “any of said street improvements may be paid for in whole or part, by such city out of general revenue funds, or other funds ivhich the city may have for such purposes if the council so desires, but all such improvements shall be paid for with special tax bills, unless the proceedings of the city for same specify that payment will be made out of the general revenue funds or other funds in whole or part.” The parts of the last provision which we have italicized do not appear in Section 8323, Revised Statutes 1919. Considering solely Section 8323 as amended and Section 8327, and considering them together, the authority of the city to vote bonds for paying the entire cost of the improvement is not found. But relator contends it has proceeded under authority of Section 86.56, Revised Statutes 1919, which reads as follows: *322 ‘ ‘ The various cities, towns and villages in this State, whether organized by special charter or under the general laws of the State, may contract a debt or debts in excess of the annual income and revenue for any such year, for any purpose authorized in the charter of such city, town or village, or by any general law of the State, upon the assent of two-thirds of the legul voters of such city, town or village voting at an election held for that purpose.” Section 8660 provides that:- . “The provisions of the preceding four sections shall apply to all cities, towns and villages in this State, whether organized by special charter or under the general laws of the State, any provision in any special charter of any city, town or village in the State to the contrary notwithstanding. ’ ’ Thus has the General Assembly emphasized the fact that the provisions of Section 8656 are applicable to cell cities of the State. Section 8323, being part of the law constituting the charter of cities of the third class, specifically authorizes such cities to improve their streets or any part thereof and to build bridges and to pay the cost of such improvement in whole or in part. The debt incurred in the issuance of the bonds being for a purpose authorized by relator’s charter, it has full power under Section 8656 to vote said bonds, unless specifically prohibited by Section 8327. It was held in Haeussler v. St. Louis, 205 Mo. 656, l. c. 679, that under Section 6350, Revised Statutes 1899 (now- Sec. 8656, R. S. 1919) the city of St. Louis had the power to vote bonds for the purpose of building a bridge across the Missouri River (one end of which was in a foreign state), under the provisions of a general law. Although Section 8327, Revised Statutes 1919, was enacted since Section,8656, it does not undertake to repeal or limit the application of the provisions of Section 8656. Its provisions are merely cumulative. Under Section 8323, Laws 1921, page 113, relator has the power to *323 improve its streets or any part thereof and to pay for same ont of the general revenue funds, or other funds ivhich the city may have for such purposes. The payment is therefore not limited to the general revenue funds. Relator proposes by its bond issue to create a fund for this very purpose and to pay for the improvement out of such fund. This, we think, it is authorized to do under the.provisions of Section 8656, Revised Statutes 1919. We do not think there is anything in Section 8327, Revised Statutes 1919, which has the effect of taking away th'e power of relator to proceed under Section 8656. The contention that relator has no statutory authority to issue the bonds to pay the entire cost of the improvement is therefore not well taken. III. The contention of respondent that the notice of the election was not sufficient is based on the theory that such election notice must conform to the provisions of ^eeti°n 8328, which define the character of notice required when bonds are authorized under Section 8327. Notice was published in the Central Missouri Republican, a newspaper published in the city of Boonville, on November 24 and December 1, 8 and 15, 1921, and the election was held December 20, 1921. Such publication was therefore made for three weeks, the last publication being within two weeks of the election, and was sufficient under Section 8657 covering publication of the notice required when bonds are voted under the provisions of Section 8656. IV. Having thus considered all the objections raised by respondent against the right of relator to have such bonds registered in the office of the State . .... , -, . . . . ,. . Auditor, and deeming such objections insufficient, it. follows that pur peremptory writ of mandamus should issue, and such is our order. All concur.